The most common sentence for a defendant who has been convicted of a crime in Pennsylvania is a term of probation.  The idea is that the defendant stay out of trouble for the probationary term or risk going back to jail.   Well, as you might have guessed, there is a fair amount of people that just can’t stay out of trouble that long and they end up getting locked up by their probation officer and/or a judge.  The the question then becomes: What rights does that person have regarding how to get out of jail and when on a probation violation?

The law provides that when a person is incarcerated due to an alleged probation of violation, they must sit in jail until a hearing is scheduled for a judge to determine whether there is probable cause to believe that the defendant violated his probation.  This is called a “Gagnon” hearing, named after the U.S. Supreme Court case from 1971, Gagnon v. Scarpelliwhich set forth a defendant’s due process rights in the probation context.  I am a lawyer who has dealt with hundreds of Montgomery County probation violations, as well as violations throughout all of Pa, over twenty years.  That said, there are two types of Gagnon hearings, predictably named Gagnon I and Gagnon II.

The Gagnon I hearing is held when the defendant is first locked up and it is a proceeding before a judge where the Commonwealth must prove a prima facie case that the defendant violated his probation.  “Prima facie”, literally translated means “first blush” and the Commonwealth need merely show that there is probable cause to believe the defendant violated.  The Gagnon II is usually held later and the Commonwealth here must show by clear and convincing evidence that the defendant  violated his probation.  If the Commonwealth cannot prevail at either level, the defendant must be released.   Put most simply, The Gagnon I is more about holding the defendant until the Gagnon II is held where the judge rules on whether the defendant is “guilty” of violating his probation.

If you or a loved one has violated their probation in Pa., contact a Montgomery County criminal lawyer who does a good amount of probation work.  It will be money and time well spent.

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