The Court summarized the minimum requirements of due process as including:

(a) written notice of the claimed
violations of parole; (b) disclosure
to the parolee of evidence against
him; 202 (c) opportunity to be heard
in person and to present witnesses
and documentary evidence; (d) the
right to confront and cross-examine
adverse witnesses (unless the hearing
officer specifically finds good cause
for not allowing confrontation);
(e) a "neutral and detached" hearing
body such as a traditional parole
board, members of which need not be
judicial officers or lawyers; and
(f) a written statement by the fact-
finders as to the evidence relied
on and reasons for revoking parole.
We emphasize there is no thought
to equate this second stage of
parole revocation to a criminal
prosecution in any sense. It is a
narrow inquiry; the process should
be flexible enough to consider
evidence including letters, affi-
davits, and other material that
would not be admissible in an
adversary criminal trial.

408 U.S. at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d at 499.

Morrissey was followed by Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), which held that probationers facing possible

202. In United States ex rel. Carson v. Taylor, 540 F.2d 1156, 1161 (2d Cir. 1976), the court held that a parolee must be permitted to see the actual documents considered by the hearing examiners unless there is a showing of good cause for nondisclosure. However, in Stidham v. Wyrick, 567 F.2d 836 (8th Cir. 1977), the court stated: "Although he did not receive copies of (some of) the documents relied upon at the hearing, he was party to the incidents reported in each of them and none of them presented evidence of which he had no prior knowledge.

Under these circumstances we find no due process violation." 567 F.2d at 838.

revocation were entitled to preliminary and final revocation hearings as prescribed for parolees in Morrissey. However, Gagnon answered a question left open in Morrissey--whether an indigent probationer or parolee has a due process right to representation by appointed counsel. The court noted that in most cases the probationer or parolee has been convicted of committing another crime or has admitted the charges against him. The introduction of counsel into a revocation proceeding would significantly alter the nature of the proceeding. The state would provide its own counsel and the hearing could become an adversary proceeding rather than an inquiry into the rehabilitation needs of the probationer or parolee. The decision-making process would be prolonged and the financial costs to the state would be substantial. The court determined that the need for counsel must be made on a case by case basis in the exercise of sound discretion:

Although the presence and participa-
tion of counsel will probably be both
undesirable and constitutionally

unnecessary in most revocation hearings,
there will remain certain cases in
which fundamental fairness--the touch-
stone of due process--will require that
the State provide at its expense
counsel for indigent probationers
or parolees.

Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to

be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds should be stated succinctly in the record.

411 U.S. at 790, 93 S. Ct. at 1763, 36 L. Ed. 2d at 666. The Court noted that the probationer's admission that he committed another serious crime created the type of situation in which counsel need not ordinarily be provided. However, since the probationer claimed his statement had been made under duress and was false, the district court was directed to reexamine the request for assistance of counsel.

The

His

Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L. Ed. 2d 336 (1967) held that a probationer was entitled to be represented by counsel at his probation revocation hearing which resulted in the imposition of a ten year prison sentence. Under state law the judge was required to impose the maximum sentence provided by law but was also required to make a recommendation to the parole board of the time the defendant should serve. The actual sentence was determined by the parole board. In Mempa the judge In Mempa the judge had recommended that the probationer be required to serve only a year. probationer's original offense was "joyriding." alleged probation violation was involvement in a burglary for which he was not charged, although he admitted his participation. Another probationer had been placed on probation for three years after his plea to burglary in the second degree. After he was charged with forgery and grand larceny, his probation was revoked and he was sentenced to fifteen years imprisonment on the original burglary conviction. Gagnon, supra, the Court distinguished Mempa as a case in which probation revocation was combined with a sentence hearing. 411 U.S. at 781, 93 S. Ct. at 1759, 36 L. Ed. 2d at 661.

In

Gill v. Estelle, 530 F.2d 1152 (5th Cir. 1976) cert. denied, 431 U.S. 924, 97 S. Ct. 2199, 53 L. Ed. 2d 239 held that it was constitutional error to introduce into evidence, during the punishment stage of a later trial, the defendant's counselless probation revocation. The record does not reveal whether the probation revocation proceeding included resentencing. Citing Mempa, supra, the court stated: "Constitutional law

clearly requires that counsel be afforded to a defendant in a probation revocation proceeding." 530 F.2d

at 1153. The court did not discuss Gagnon, supra. Therefore, it is not clear whether the Gill court combined the probation revocation hearing with a resentencing hearing, whether the court held that a counselless revocation of probation cannot be used against the probationer in later proceedings even though under Gagnon the probationer does not have the right to counsel, or whether the court failed to consider Gagnon.

United States ex rel. Martinez v. Alldredge,

468 F.2d 684 (3d Cir. 1972), cert. denied, 412 U.S. 920, 93 S. Ct. 2737, 37 L. Ed. 2d 146 (1973) held that a parolee does not have the right to counsel at a mandatory release revocation hearing when the factual grounds for revocation are uncontroverted.

United States v. Evers, 534 F.2d 1186 (5th Cir. 1976), cert. denied, 429 U.S. 1024, 97 S. Ct. 644, 50 L. Ed. 2d 626 held that where the alleged violation constitutes a criminal offense, probation can be revoked on evidence which is not sufficient to sustain a criminal conviction. The court stated: "All that is required is enough evidence, within a sound judicial discretion, to satisfy the district judge that the conduct of the probationer has not met the conditions of the probation." 534 F.2d at 1188. Similarly, Mack v. McCune, 551 F.2d 251 (10th Cir. 1977) held that the reversal of a state conviction based upon the same facts as the alleged parole violation did not affect the revocation unless the acquittal removed all factual support from the parole revocation:

United States v. Manuszak, 532 F.2d 311 (3d Cir. 1976) held that probation can be revoked although the probationer has been acquitted of the criminal charge based upon the same facts as the alleged probation violation. "[T]o revoke probation it is not necessary that the probationer be adjudged guilty of a crime, but only that the court be reasonably satisfied that he has violated one of the conditions of his probation."203 532 F.2d at 317.

Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978)

stated:

Furthermore, there is no

merit to Robinson's argument
that the dismissal of state
charges against him removed
any basis for the Parole
Board's decision to rescind
parole. In parole revocation
all that is required is that
the evidence and facts reason-
ably demonstrate that the person's
conduct has not been as good
as required by the terms of
his release. Only if as a
matter of law the dismissal
of state charges removes
all factual support from
revocation can a parolee
be successful.

570 F.2d at 923.

Graves v. Ogliati, 550 F.2d 1327 (2d Cir. 1977) decided that a sentence can be held in abeyance from the initial date of parole delinquency until the parolee is returned to custody for the violation.

Skipworth v. United States, 508 F.2d 598 (3d Cir. 1975) held that the court can extend a probationer's period of probation without notice, hearing, and presence of the probationer.

203. See also Standlee v. Rhay, 557 F.2d 1303, 1307 (9th Cir. 1977) (parole revocation permissible even though acquitted of criminal charges).