(3) There are certain conditions to be met in
the conducting of a preliminary hearing.
(A)
The preliminary hearing will be held as promptly as is convenient after the
arrest.
(B) The preliminary hearing
will be held reasonably near the place of the alleged violation or arrest. The
officer will notify the alleged violator of the date, time, and location of the
hearing and will designate the officer who will conduct the hearing. The
charges brought against him/her will also be furnished to him/her. In no
instance will the officer conducting the hearing be the alleged violator's
supervising officer or that officer's immediate supervisor.
(C) The hearing officer will be in charge of
the hearing and only the alleged violator and the hearing officer will be
present, unless the hearing officer feels a security officer should be in
attendance. Only one (1) witness will be allowed in the hearing room at a time.
The hearing officer will initiate all questioning of witnesses and may
terminate any questioning if the testimony becomes irrelevant, repetitious, or
excessive.
1. The alleged violator may present
his/her own testimony and present any documents or other evidence or mitigating
circumstances which may explain the violation.
2. The alleged violator may present his/her
own witnesses who can give relevant information concerning the violator. The
witnesses cannot just be character witnesses. It will be the responsibility of
the alleged violator to produce his/her own witnesses, and if s/he is in
custody, the officials in charge of the detaining facility will allow him/her
to make contacts as may be necessary. The hearing officer does not have
subpoena power, and there are no funds available to issue the appearance of any
witness nor to pay any other expenses incurred by the alleged violator in
preparation for or resulting from the preliminary hearing.
3. The alleged violator may confront or
cross-examine any adverse witnesses unless the hearing officer determines that
the witnesses may be subject to risk of harm if their identity is
disclosed.
4. The alleged violator
will not be allowed to have an attorney present, as this is an informal review
to establish probable cause. The only exception shall be if the hearing officer
has reason to believe the alleged violator is incapable of understanding the
proceedings.
5. Upon completion of
the hearing, the hearing officer will forward a written hearing report to the
court or the board for further action. The alleged violator will receive a copy
of the report as soon as it can be prepared and delivered.
6. When the preliminary hearing is being held
by the sentencing court, that court may combine the preliminary and revocation
hearings. When this occurs, the hearing shall be governed by the rules of that
court and the provisions of this administrative rule.
7. When the probationer is not arrested in
the jurisdiction of the sentencing court, the preliminary hearing may be
conducted by the judge or associate circuit judge in the county of the alleged
violation or arrest having original jurisdiction to try criminal offenses. When
this occurs, the hearing shall be governed by the rules of that court and the
provisions of this administrative rule.
