Wiseman denies motion in revocation hearing

The Superior Court has denied a defendant’s motion asking the court to apply the standard of proof beyond a reasonable doubt for revocation hearings.

Associate Judge David A. Wiseman, in a Sept. 2, 2004 clarification order, began by differentiating that “a trial seeks to convict a defendant of a crime, a revocation hearing is not [for such purpose].”

Wiseman issued the order in denying defendant Dennis A. Taisacan’s motion for the court to apply the standard of “proof beyond a reasonable doubt” for revocation hearings.

The judge said the court has no intention to adopt a new standard of review given the overwhelming case law tackling the issue.

He cited a case law that provides that “requiring a proof of probation violations by a standard stricter than preponderance of the evidence would diminish the flexibility with which probation revocation may be employed by judges and could, in some instances, force our already overburdened trial judges.”

He further cited that “this could result in poor-risk convicted criminals remaining at large, and would further tax limited judicial resources by complicating and lengthening revocation proceeding.”

Wiseman said that Taisacan’s defense counsel’s frequent requests to have a revocation hearing, which is based on a probationer being charged with a new crime, to follow the trial of the new crime “lacks any legal basis and will not be accommodated, absent exigent circumstances.”

Wiseman said it is well settled in the CNMI that the proper standard of proof is far less than that required in a criminal trial.

Citing a 9th Circuit Court of Appeals’ ruling, Wiseman said: “The standard of proof required is that evidence and facts be such as reasonably to satisfy the judge that the probationer’s conduct has not been as required by the conditions of probation.”

Further he said that a revocation hearing “is not equivalent to a criminal prosecution; in other words, the hearing is not a proceeding which could result in a conviction.”

He cited that even the U.S. Supreme Court said that a probation revocation hearing is not a stage in the criminal prosecution of an individual, and “that such hearings are administrative in nature, and are not conducted to determine the defendant’s guilt or innocence.”

As to the defendant’s other argument that the court distinguish between a technical violation of probation and a violation that occurs by committing a new crime, Wiseman said it is without any authority.

Taisacan, a former health sanitation inspector, was charged with resisting arrest, assault and battery, and disturbing the peace in 2001. He entered a guilty plea to all charges and was sentenced in March 2002.

Last January, the Attorney General’s Office charged Taisacan with new offenses: disturbing the peace, criminal mischief, and theft of service.

The defendant, while allegedly intoxicated on Nov. 9, broke some items at a restaurant and threatened to close down the establishment.

The government moved to revoke defendant’s probation in the 2001 case.