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Nevada Supreme Court Announces Testimony at Probation Revocation Hearing Inadmissible in Later Criminal Proceeding

by Dale Chappell

Announcing a new rule to protect the constitutional rights of criminal defendants who face both probation revocation and new criminal charges, the Nevada Supreme Court held that testimony and evidence from a probation revocation hearing cannot be used against a criminal defendant at a later criminal proceeding, allowing defendants to defend themselves at the revocation hearing while protecting defendants from incriminating themselves later.

When Kamesha Cooper allegedly violated her probation for committing a new offense, her defense lawyer told her not to testify at the probation revocation hearing because that testimony would be used against her in the later criminal proceedings for the new charges. Good advice. Though constitutionally questionable, such a practice was permitted in Nevada at the time. As much as Cooper wanted to defend herself at the revocation hearing, she could not do so without making herself the State’s “chief witness” against her in the criminal case.

The district court, recognizing Cooper’s dilemma, stated she was “either going to be prejudiced here by not testifying or prejudiced potentially in the” criminal proceedings. Finding Cooper had violated her probation, the court revoked her probation. She appealed.

Because probation revocations are not criminal prosecutions, probationers are not afforded the “full panoply of constitutional protections;” however, due process requires that a probationer is given “an opportunity to be heard and to show ... that he did not violate the conditions,” the U.S. Supreme Court held in Morrissey v. Brewer, 408 U.S. 471 (1972).

Society has an interest in not revoking probation because of erroneous information and with treating a probationer with fairness to improve the probability of rehabilitation. This is “more illusory than real,” the Court noted. At a criminal trial, the prosecution bears the burden of presenting sufficient evidence to establish guilt before a defendant decides to exercise her right to testify or remain silent. If the prosecution can use testimony from an earlier probation revocation hearing, that burden is “substantially lightened,” the Court said, putting a criminal defendant between a “rock and a hard place.” It’s also an “unfair dilemma for the probationer,” the Court said.

In Simmons v. United States, 390 U.S. 377 (1968), the U.S. Supreme Court found it “intolerable that one constitutional right should have to be surrendered in order to assert another.” There, Simmons had to make the choice between testifying at a motion to dismiss hearing or preserving his right against self-incrimination.

Even if the constitutional question is “not so severe as to rise to the level of a constitutional deprivation,” the Nevada Supreme Court said it “is nevertheless so real and substantial that it calls for action by the Court on public policy grounds.”

Invoking its inherent supervisory power to adopt rules, the Court adopted the following rule: “[U]pon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal….”

The Court explained that the newly articulated rule is one of admissibility, not immunity as some other jurisdictions have characterized it. It added that the rule “is in the interest of basic fairness and in furtherance of our responsibility in the administration of justice….”

The new rule, a direct quote from People v. Coleman, 533 P.2d 1024 (Cal. 1975), in which the California Supreme Court addressed the same issue, “removes any improper incentive to proceed with probation revocation hearings as a way to gain an unfair advantage at a subsequent criminal trial” by the state, the Court said. Instead, the district court must advise probationers at the revocation hearing that any testimony related to separate criminal conduct cannot be used against them in subsequent criminal proceedings in Nevada.

Accordingly, the Court ruled that the newly announced rule applied to Cooper, reversed the district court’s order revoking her probation, and remanded the matter to the district court for further proceedings consistent with its opinion. See: Cooper v. State, 422 P.3d 722 (Nev. 2018). 

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Cooper v. State



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