Preliminary Hearing

When someone is on probation and the person picks up a new arrest, the probation department can order the person be detained. At the outset of detention, the person is entitle to an initial hearing to determine if the person should be held in custody pending their violation hearing before a judge. The name of that hearing is Gagnon I.

The basic idea of the Gagnon I hearing is to determine if probable cause exists to believe whatever the allegation that caused the probation department to request the person be detained. If probable cause exists from the allegations, the person can be held until they go before a judge.

When you eventually appear before a judge or parole board the hearing is called Gagnon II, and the standard is totally different. When you appear before the judge, the allegations against you must be proven at a preponderance. In addition the probationer is entitled to all of the following: written notice of the violation, a factual summary of the violation, an opportunity to testify and put on witnesses or documents, a lawyer, a judicial authority to rule like a parole board or judge to decide if a violation occurred, and a written fact finding.

The cases relevant to these issues are Gagnon v. Scarpelli, 411 U.S. 778 (1973) (laying out the framework for violation of probation hearings); Com. v. Sims, 770 A. 2d 346 (Pa.Super. 2001); Com. v. Ferguson, 761 A. 2d 613 (Pa.Super. 2000)

A major question exists as to what type of hearing you are required to be given at your Gagnon I. In some counties in Pennsylvania the Gagnon I is called a preliminary hearing, not to be confused with your preliminary hearing from a normal new criminal case. The question is whether you are entitled to have a real hearing for your Gagnon I or is it simply an administrative hearing with almost no value? The case law seems clear that you are entitled to have someone review the alleged violation and make a determination as to whether probable cause exists to believe the allegation.

The reason this remains a question is because in some counties we often hear the Gagnon I hearing officer tells the client the county or a certain judge from that county “does not lift detainers at the Gagnon I.” Therefore, if there is a policy, custom, or procedure in place to prevent the detainer being lifted, then the probationer clearly did not have a Gagnon I hearing. If they do not have a Gagnon I, their federal due process rights have been violated. Whether this obvious violation will ever be remedied, only time will tell.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.