Note: This article is provided for general informational and educational purposes only. It is not intended to serve as legal advice.
Public safety professionals wear a lot of hats, regardless of their specific position. A police officer is sometimes a family therapist, a firefighter sometimes plays the role of community educator, a corrections officer occasionally is a career counselor. But perhaps no position in public safety plays more roles than the probation officer. Certainly, the core job task involves supervising probationers. But the job goes far beyond that.
Let’s look at three roles probation officers play and why writing reports and making file notes that clearly and effectively detail what the officer saw and did is essential to limiting risk to officers and agencies.
Probation Officer as Investigator
Probationers are often legally obligated to be honest with their probation officer. A probationer who claims he went to three job interviews last week when he didn’t, for example, is likely to be in violation of his probation supervision conditions not only because he didn’t attend the interviews but also because he was dishonest with his PO. And yet probation officers are used to hearing exaggerations, omissions, and sometimes downright lies from their probationers.
To supervise probationers effectively, including those who may be untruthful, the probation officer often must act as an investigator or, to put a finer point on it, a “truth-seeker.” Often confirmation of a probationer’s statements is done by requiring documentation—for example, a form on which potential employers can provide contact information to confirm a probationer attended a job interview.
But documentation created by a third party isn’t always available or sufficient. For example, let’s say you are performing an unannounced home visit in a state where possession of medical marijuana is legal with a medical card and you spy a bag of marijuana in the house of your probationer. Your probationer, who is prohibited from possession per his supervision conditions due to multiple prior drug convictions and lack of a medical card, immediately denies the marijuana is his, claiming it must belong to his roommate. You must ask yourself: Has the probationer mentioned living with a roommate before? How many beds are in the home? What happens when you ask to speak with the roommate?
As a probation officer, you will have your discretion questioned at some point and we all hope that questioning doesn’t come in the form of a civil lawsuit against you or your agency.
Here’s where reporting comes in. You could do what is easiest and fastest: File a violation report stating simply that you showed up, saw marijuana on the table, and thereafter arranged for the probationer’s arrest, with minimal accompanying notes made in the probationer’s file. But what if turns out there actually is someone living in the house with a medical use permit? What will you say to the court when the case comes on for hearing? Does it damage your reputation with the judge for not being more thorough? And can you even remember details of the incident when combined with the dozens of other incidents you may experience in even a single week? Your report and file notes need to outline not only what you observed but the thought process you went through to conclude the marijuana belonged to the probationer, including the details of the apartment’s sleeping arrangements, how the probationer acted when you asked him about the drugs, and whether or not a roommate was present who produced a permit.
At this point you might be thinking, “That’s all well and good, but my case load is so high, I simply don’t have time to write detailed file notes.” I fully sympathize; today’s case volumes are problematic. But with a little practice, you can document detail without adding a lot of time. It may help to revisit an exercise you likely learned when you were first learning to write in elementary school: ask yourself, “Who, What, When, Where, Why, and How?” Answering these questions in reference to the above example could look something like this:
“I arrived for an unannounced home visit at the home of Pauly Probationer, located at 123 Robme Way (WHERE), on April 20 at approximately 4:20 pm (WHEN.) Pauly’s car was the only car present in the driveway and Pauly was confirmed to be the only person at home after an initial room-by-room security check (WHO was present; HOW you confirmed this.) Out on the coffee table in the front living room was a ‘quarter-size’ bag of marijuana beside an ash tray and rolling papers (WHAT you saw and WHERE.) Pauly was nervously rolling a lighter across his knuckles as I examined the marijuana (HOW Pauly was behaving). Immediately after I looked up at Pauly from examining the marijuana, Pauly spontaneously stated the marijuana belonged to his roommate. When I asked him to tell me about the roommate, he described her as a woman named Mary Jane who has a medical marijuana card, works as an elementary school teacher in town, and is ‘Totally legit’ (Pauly’s version of WHY the marijuana was there). However, I observed no female clothing, shoes, or other items appearing to belong to either a female or to an elementary school teacher; after a second room-to-room check, I observed only a single toothbrush and one single-size bed (WHAT you did or didn’t observe).”
This short account provides significant detail about the encounter, should be sufficient to jog your memory at a later time, and—along with a small amount of additional information regarding Pauly’s history and drug screen results—is likely to be sufficient for a judge to make a decision as to Pauly’s culpability for purposes of his probation. Such an account is also likely to be sufficient, along with a quick phone call to see if there is a Mary Jane who works as an elementary school teacher in the local district, to convict Pauly for possession of marijuana should you or local law enforcement choose to proceed with such a criminal charge. In short, taking the two minutes necessary to make these types of notes will pay dividends in the future and will assist you in combatting significant issues discussed further below.
Probation Officer as Reporter
Probation officers often work closely with law enforcement officers who are investigating crimes the probationer may be involved in or may know about. Fearing revocation of their probation or otherwise seeking preferential treatment, probationers will also provide information to their POs, sometimes in the form of direct statements about criminal activity and other times as statements of “word on the street” related to other criminal acts. This puts the probation officer in the role of reporter—providing information received from a probationer to law enforcement. In some cases, this same information is used to pursue charges against another person; in others, it can be used to elicit a confession from the probationer or proceed with criminal charges against him or her.
Probation officers must be careful to document the conditions of interviews to show the probationer wasn’t in what could be considered a custodial situation and wasn’t threatened.
In Minnesota v. Murphy, the U.S. Supreme Court held that as a general rule, probationers are not deterred from asserting their Fifth Amendment right against self-incrimination in conversations with their probation officers based solely on the perceived threat of revocation. Said more practically, if a probationer chooses to disclose information or answer a probation officer’s questions, the statements are generally considered to be voluntary statements for purposes of admission in a later criminal trial—as long as the probation officer isn’t threatening revocation action against the probationer if the probationer elects to assert a Fifth Amendment right against self-incrimination and chooses not to answer the PO’s questions.
Probation officers must be careful, however, to document the conditions of such interviews to show the probationer wasn’t in what could be considered a custodial situation and wasn’t threatened, both of which could create the appearance of a Fifth Amendment violation. Details such as “We were in a room with the door open,” “No outside law enforcement officers were present,” or “I asked him this question because it posed a treatment concern” become critical, as cases occurring since Murphy have emphasized.
So, let’s pick up with Pauly from our example above, who, we should add, hasn’t exactly been a model probationer, has significant time hanging over his head, and now realizes he’s about to be taken into custody. When Pauly starts to spill “word on the street” in an attempt to avoid the filing of a violation, you need to be very diligent in your reporting. Consider:
- Repeating in all related reports and case/file notes that the encounter occurred in Pauly’s home with only a single PO present and Pauly was not in handcuffs or otherwise restrained.
- Emphasizing Pauly began to provide information before you mentioned filing a violation report in response to the marijuana.
- If Pauly starts to waver on providing the information, noting specifically he wasn’t threatened with revocation if he didn’t provide the “word on the street” information.
- Documenting the relationship of questions you asked Pauly (“How did you get the money to purchase the marijuana?”) with each question’s relevance to Pauly’s probation (Pauly is in arrears for probation-related fees).(1)
Such documentation is likely to be very useful not only to the PO but to law enforcement officers and prosecutors if the information Pauly provides is needed in further criminal proceedings related to either Pauly or third-party defendants. As we’ll see below, documentation may also be critical to protecting you and your agency down the line.
Probation Officer as Exerciser of Discretion
In addition to the issue of compelled statements, the role of probation officers as reporters brings up another issue: the limits of immunity. Immunity is complicated by the fact that in many jurisdictions probation and parole officers can modify certain terms of supervision—for example, extending treatment or modifying frequency of drug screenings—without judicial approval and/or through a hearing waiver process with the consent of the probationer. In other scenarios, as we’ve seen above, POs may obtain information they feel needs to be communicated to third parties, including but not limited to law enforcement, treatment providers, and victims. Such decisions require the probation officer to exercise significant discretion based on facts often unknown to the court.
To supervise probationers effectively, including those who may be untruthful, the probation officer often must act as an investigator or, to put a finer point on it, a “truth-seeker.”
Yet what do experienced probation officers know about many probationers who fear imminent revocation? What is their last-ditch defense? Bias, of course—attack the PO’s exercise of discretion! In my experience conducting revocation hearings as a prosecutor, probationers claimed or blamed probation officer bias surprisingly frequently, alleging everything from PO racial and religious discrimination against them to wild conspiracy theories. When that happens at a revocation hearing in front of judge you know, who has a favorable opinion of your character for truthfulness and is familiar with your record as a PO, it’s one thing, but when it happens in a filing alleging you violated a probationer’s civil rights, it is entirely another. The real protection you have to fall back on is your report and the details it contains, along with other cumulative reports from prior cases which can show lack of bias.
Reports that document details such as a probationer making veiled threats against the PO or others, or the probationer being chronically late to meetings and belligerent about his tardiness—particularly when combined with reports from other POs or individuals who witness the probationer’s behavior—will also help defend against allegations you’re treating the probationer unfairly, particularly if this documentation can be made or entered into computerized systems that document the time of creation.(2) Regardless of your jurisdiction, there is almost always an exception to immunity in the law for intentional behavior committed by a public official in violation of a probationer’s civil rights. So, POs may not always be protected by absolute or qualified immunity or from suit in their individual capacities. Just as a police officer who falsifies information on an affidavit for a search warrant is liable, so too can be a probation officer who intentionally or through gross negligence provides false information that leads to the arrest of the probationer or a third party. Thus, the information included in your report must be accurate, thorough and consistent.(1)
Such details can also be critical to potentially preventing a breach of public safety. If you feel a violent offender is likely to reoffend, putting the appropriate details in your reports can help you make a case for revocation of probation later. A probationer skipping a single treatment session is unlikely to result in revocation in many jurisdictions, but if your file notes describe the probationer’s consistently hostile attitude toward probation supervision and/or toward you as the PO, with specific details of probationer behavior and statements, revocation becomes much more likely. POs should also remember that despite the positive working relationships they may have with the officials having revocation authority in their jurisdiction, reports and file notes are still necessary to create a full picture for that authority, or for officials down the line who may have to assess the same information for other purposes, such as when used as corroborating information on an application for a law enforcement search warrant.
As a probation officer, you will have your discretion questioned at some point and we all hope that questioning doesn’t come in the form of a civil lawsuit against you or your agency. Writing probation reports and making detailed file notes that clearly and impartially document the facts and show the reasons for your decisions is often your best, and sometimes your only defense. Smart probation officers know they must prioritize these reporting tasks to effectively supervise probationers, to accurately report necessary information to the court and third parties, and to protect both themselves and their agencies.
- A full discussion of nationwide case law post-Murphy and the scope of immunity protection in individual jurisdictions apart from the concept of general claims under authority like 42 U.S.C. 1983 is beyond the scope of this article. However, it merits stating here that analysis for purposes of Fifth Amendment violations in these situations is highly fact-specific; thus, policy best practice for probation officers is to err on the side of caution by linking questioning to specific probation supervision conditions absent special circumstances. POs should also recall that while prosecutors are often well-meaning in advising or working with POs, prosecutors do not typically represent the civil interests of individual POs or of probation agencies and situations can and do arise where law enforcement’s interest in “getting the bad guy” can conflict with PO supervision requirements and legal mandates. POs and probation agencies should maintain close working relationships with independent counsel and/or their supervising courts for purposes of obtaining legal advice and guidance in these and other scenarios.
- Supervision of “button-pushing” probationers—those who know just how far they can go without engaging in objective violation behavior—can be particularly difficult, especially when those probationers make veiled or arguable threats toward POs, victims, or other third parties. A primary concern here is probation officers may categorize a probationer as a “button pusher” instead of recognizing a veiled or arguable threat as an actual statement of intent to do harm. While failure-to-warn liability is also outside the scope of this article and varies across the country, policy best practice suggests probation officers observing these types of veiled or arguable threats should treat them as though they are overt threats and immediately report them to an on-call supervisor as well as to the judicial authority whom the probation agency works with or reports to, law enforcement, the prosecutor’s officer, and agency legal counsel. As seasoned probation officers know, these types of comments by probationers can be more common than those outside of the field recognize, but judging what is a “real” threat is generally not something an individual PO should undertake on their own. Thus the use of veiled threats in this example is not intended to suggest POs should not immediately report these types of statement or actions, but instead is used to describe a particular type of “hard to revoke/button-pushing” probationer who is familiar with and sometimes enjoys working the system, along with a way to objectively document evidence for revocation.