Does a probationer have to choose between the privilege against self-incrimination and his opportunity to be heard at his revocation hearing?

California, United States of America


The following excerpt is from People v. Coleman, 120 Cal.Rptr. 384, 13 Cal.3d 867, 533 P.2d 1024 (Cal. 1975):

[13 Cal.3d 878] [533 P.2d 1034] [120 Cal. Rptr. 394] The second policy underlying the privilege against self-incrimination which is undermined by forcing a probationer to choose between the privilege and his opportunity to be heard at his revocation hearing, is our "unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt." ( Murphy v. Waterfront Comm'n, supra, 378 U.S. at p. 55 [12 L. Ed. 2d at p. 681].) Although a probationer is not faced with contempt if he remains silent at his revocation hearing, he may well find himself in an analogous predicament. He might, as we have stated, seriously incriminate himself if he exercises his right to be heard, particularly where his testimony would consist of a truthful explanation of mitigating circumstances surrounding the charged probation violation. If he remains silent he not only loses his opportunity to present a conceivably convincing case against revocation but also incurs the risk that notwithstanding the ideals of the Fifth Amendment his silence will be taken as an indication that there are no valid reasons why probation should not be revoked. To avoid the adverse effects of the foregoing alternatives, the probationer may be tempted to testify falsely in a manner which will not damage his defense at a subsequent criminal trial.

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