Rule 32.1. Revoking or Modifying Probation
(a) Revocation.
(1) Preliminary Hearing.
(A) In General. If a person is in custody for violating a condition of probation, the
court must, within the time limits set forth in Rule 32.1(a)(3), conduct a hearing to
determine whether there is probable cause to believe that a violation occurred. The
person may waive the hearing.
(B) Requirements. The hearing must be recorded by a court reporter or by a suitable
recording device. The court must give the person:
(i) notice of the hearing and its purpose, the alleged violation, and the person's
right to retain counsel or to request that counsel be appointed if the person cannot
obtain counsel;
(ii) an opportunity to appear at the hearing and present evidence; and
(iii) upon request, an opportunity to question any adverse witness.
Whenever the alleged violation of probation is based on an arrest for a criminal
offense allegedly committed while on probation, a preliminary hearing held pursuant to
Rule 5.1 may serve as the preliminary revocation hearing required by this subparagraph
if the provisions of this subparagraph have been fully satisfied.
(C) Finding. The finding of probable cause may be based upon hearsay evidence in
whole or in part. If the court finds probable cause, the court may release or detain the
person under D.C. Code § 23-1325 (b) (2012 Repl.), and must conduct a revocation
hearing. If the court does not find probable cause, the court must dismiss the
proceeding.
(2) Revocation Hearing. Unless waived by the person, the court must hold the
revocation hearing within the time limits set forth in Rule 32.1(a)(3). The person is
entitled to:
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(C) an opportunity to appear, present evidence, and question any adverse witness
unless the court determines that the interest of justice does not require the witness to
appear; and
(D) notice of the person's right to retain counsel or to request that counsel be
appointed if the person cannot obtain counsel; and
(E) an opportunity to make a statement and present any information in mitigation.
(3) Time Limits.
(A) Whenever the person is held in custody pending the final revocation hearing, the
court must hold the final revocation hearing and decide whether to revoke probation no
later than 60 days after the preliminary revocation hearing.
(B) Whenever the alleged violation of probation is based on an offense allegedly
committed while on probation, which is also the subject of criminal charges against the
person, the person shall have the right to have the final revocation hearing postponed
beyond the 60-day time limit pending final disposition of the criminal charges. Any such
postponement at the person’s request shall have the effect of tolling the computation of
time under this subparagraph. If the person exercises the right to postpone the final
revocation hearing pending final disposition of the criminal charges, a final revocation
hearing shall be held and the court shall decide whether to revoke probation no later
than 20 days after judgment or other final disposition of the criminal charges.
(C) The time limits set forth in this subparagraph may be extended for good cause.
If, within these time limits, or within any extension previously granted by the court, the
court does not decide whether probation should be revoked, the person may not be
further detained by reason of the alleged probation violation pending the court’s
decision.
(b) Modification.
(1) In General. Before modifying the conditions of probation, the court must hold a
hearing, at which the person has the right to counsel and an opportunity to make a
statement and present any information in mitigation.
(2) Exceptions. A hearing is not required if:
(A) the person waives the hearing; or
(B) the relief sought is favorable to the person and does not extend the term of
probation; and
(C) an attorney for the government has received notice of the relief sought, has had
a reasonable opportunity to object, and has not done so.
(c) Producing a Statement. Rule 26.2(a)-(d) and (f) applies at a hearing under this rule.
If a party fails to comply with a Rule 26.2 order to produce a witness's statement, the
court must not consider that witness's testimony.
COMMENT TO 2016 AMENDMENTS
This rule has been redrafted to conform to the general restyling of the federal rules in
2002. It differs from the federal rule in several respects.
Paragraphs (a) and (d) of the federal rule, entitled “Initial Appearance” and
“Disposition of the Case,” are omitted as locally inapplicable.
Paragraph (a) of this rule, which corresponds to paragraph (b) of the federal rule,
differs in the following respects.
First, subparagraph (a)(1)(B) provides that a preliminary hearing under Rule 5.1 may
serve also as a preliminary revocation hearing under this rule if certain conditions are
met.
Second, subparagraph (a)(1)(C) retains a provision expressly stating that a probable
cause finding may be based on hearsay evidence.
Finally, subparagraph (a)(3), which has no federal counterpart, sets time limits within
which the court must act. It differs from the former rule only as to organization; no
difference in substance is intended.
The phrase “charged by complaint” in subparagraph (a)(1) of the former Superior
Court rule is omitted in this rule to recognize that alleged violations of probation may be
based on arrests for offenses charged by information as well as complaint.
Consistent with the 2002 amendments to the federal rule, this rule now provides in
subparagraph (a)(2)(C) that a defendant’s right to cross-examine adverse witnesses at
a final revocation hearing is qualified. See Young v. United States, 863 A.2d 804 (D.C.
2004).
In 2005, the federal rule was amended to provide that a defendant has a right to
allocute at a revocation hearing or a hearing on modification of probation.
Subparagraphs (a)(2)(E) and (b)(1) of this rule reflect those changes.