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Reporting to a Probation Officer
The general obligation to appear before a probation or community control officer and answer questions truthfully does not in and of itself convert a defendant’s otherwise voluntary statements into compelled ones. All questions directed to our Probation Lawyers in Broward will be addressed free of charge. If you have questions call us or submit a contact form to schedule an appointment or phone conference. If you are on probation for a DUI, Visit our Broward DUI page.
A witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the Fifth Amendment privilege rather than answer if he or she desires not to incriminate himself or herself. If the defendant chooses to answer rather than to assert the privilege, the choice is considered to be voluntary since he or she was free to claim the privilege and would suffer no penalty as a result of his or her decision to do so. A probationer or community controllee cannot claim the “in custody” exception to the general rule that the Fifth Amendment privilege is not self-executing because he or she is not in custody for purposes of receiving Miranda protection since there is no formal arrest or restraint on freedom of movement of the degree associated with formal arrest. The factors that a probation or community control officer could compel a defendant’s attendance and truthful answers and consciously seek incriminating evidence, that a defendant did not expect questions about prior criminal conduct and could not seek counsel before attending the meeting, and that there are no observers to guard against abuse or trickery, neither alone nor in combination are sufficient to excuse a defendant’s failure to claim the privilege in a timely manner; a probationer or community controllee is not deterred from claiming the privilege against self-incrimination by a reasonably perceived threat of revocation of his or her probation or community control so as to render the privilege self-executing. The legal compulsion to attend a meeting with a probation or community control officer and to answer truthfully the questions of such an officer who is anticipating incriminating answers is indistinguishable from that felt by any witness who is required to appear and give testimony, and is insufficient to excuse the defendant’s failure to exercise the privilege in a timely manner. William R. Moore, Probation Defense Lawyer Broward County
More specifically, if a defendant is charged with violating his or her probation or community control because of a criminal offense for which he or she is being or could be independently prosecuted, his or her privilege against self-incrimination entitles him or her to refuse to give evidence as to such offense, but the privilege no longer exists as to alleged crimes for which the defendant could not be prosecuted, such as in a situation in which the defendant has previously pled guilty and has been sentenced for the offense in question. To prove a violation of probation or community control based on the defendant’s commission of criminal acts during the term of probation or community control, the State may introduce certified judgments and sentences and call the probationer or community controllee to the stand at the probation revocation hearing to link the judgements and sentences to the probationer. A probationer or community controllee can also be compelled to identify himself or herself at a probation or community control revocation hearing.
When a probationer refuses to discuss his compliance or non-compliance with the terms of his probation, whether or not he invokes his Fifth Amendment privilege as to related criminal conduct, this is a factor the judge may consider in a revocation hearing, and a judge may properly infer such silence confirms the violation of a condition of his or her probation.
Are you currently on probation in Broward County? Contact Attorney William Moore to get answers to any legal questions on the terms of your probation.