Probable Cause Hearings
If one assumes the principals outlined in Morrisey and Gagnon are applicable to juveniles as well as adults, a juvenile must be afforded a probable cause hearing where retaking was triggered by something other than the commission of a new felony offense and revocation of conditional release by the sending state is likely. The purpose of the hearing is twofold: (1) to test the sufficiency and evidence of the alleged violations, and (2) to make a record for the sending state to use in subsequent revocation proceedings.
One of the immediate concerns in Gagnon, supra. and Morrissey, supra. was geographical proximity to the location of the offender’s alleged violations of supervision. Presumably, hearings on violations that occurred in a receiving state that was geographically proximate to the sending state could be handled in the sending state if witnesses and evidence were readily available to the offender. See Fisher v. Crist, 594 P.2d 1140 (Mont. 1979); State v. Maglio, 459 A.2d 1209 (N.J. Super. Ct. 1979) (when the sentencing state is a great distance from the supervising state, an offender can request a hearing to determine if a prima facie case of probation violation has been made; a hearing will save the defendant the inconvenience of returning to that state if there is absolutely no merit to the claim that a violation of probation occurred). While a judge is not required to preside at such hearings, care should be taken to conduct these proceedings in a fair manner consistent with the due process requirements set forth in these U.S. Supreme Court cases. The hearing required to meet the applicable due process requirements need not be a full “judicial proceeding.” A variety of persons can fulfill the requirement of a “neutral and detached” person for purposes of the probable cause hearing.