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Cooper v. State

Supreme Court of Nevada

July 26, 2018


          Appeal from a district court's revocation of probation. First Judicial District Court, Carson City; James E. Wilson, Judge.

          Karin L. Kreizenbeck, Public Defender, and Sally S. deSoto, Chief Appellate Deputy Public Defender, Carson City, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Jason D. Woodbury, District Attorney, and Kristin Luis and Meredith N. Beresford, Deputy District Attorneys, Carson City, for Respondent.



         STIGLICH, J.

         We have long recognized that the Fifth Amendment is not violated when a probationer is faced with the difficult choice of testifying at a revocation hearing or remaining silent so as not to incriminate herself should the alleged probation violation result in subsequent criminal prosecution. In this opinion we consider whether to adopt a rule of admissibility that would limit the use of the probationer's testimony in a subsequent criminal proceeding. Having considered the compelling reasons behind adopting such a rule, we choose to invoke our supervisory powers to address the tension surrounding a probationer's testimony at a revocation hearing and adopt an admissibility rule in the interest of basic fairness and the administration of justice. Accordingly, we reverse the district court's revocation of probation and remand for proceedings consistent with this opinion.


         In March 2014, appellant Kamesha Cooper was placed on probation for a term not to exceed five years. In July 2016, Cooper was arrested, and a criminal complaint was filed alleging possession of false identification and concealment or destruction of evidence in the commission of a felony. The charges were subsequently dismissed without prejudice because the State needed more time to investigate and develop the case.

         Meanwhile, the Division of Parole and Probation filed two reports with the district court alleging various probation violations, including a violation for failure to obey laws that was based on Cooper's arrest. At the revocation hearing, defense counsel indicated that Cooper would concede the fact that she had been arrested but requested that the district court not allow testimony related to the arrest because Cooper was placed in a tenuous position of having to choose between her right to present mitigating evidence at the revocation hearing and her right against self-incrimination regarding the potential charges. The district court opined that Cooper could be prejudiced at the revocation hearing if she did not testify and opted to proceed with evidence of Cooper's other alleged violations due to Fifth Amendment concerns. However, after the district court heard the evidence for Cooper's other alleged violations, it noted that "the evidence at this point is close to the line on whether she would be revoked or not" and allowed testimony related to Cooper's arrest. The district court acknowledged that Cooper was "either going to be prejudiced here by not testifying or prejudiced potentially in [the county where she was arrested] and potentially in other jurisdiction[s] if she does testify." Nevertheless, the district court took testimony from the arresting officer and the district attorney's office regarding the circumstances of the arrest. On the advice of counsel, Cooper did not testify to the circumstances of the arrest. Based on testimony regarding the arrest, the district court found sufficient evidence to support probation violations of intoxicants, laws, and travel and revoked Cooper's probation. This appeal was taken.


         Because probation revocations are not criminal prosecutions, probationers are not afforded "the full panoply of constitutional protections" to which a criminal defendant is entitled. Anaya v. State, 96 Nev. 119, 122, 606 P.2d 156, 157 (1980). However, revocation proceedings "may very well result in a loss of liberty, thereby triggering the flexible but fundamental protections of the due process clause of the Fourteenth Amendment." Id. The Supreme Court has held that, at a minimum, due process at a revocation hearing requires a probationer be given "an opportunity to be heard and to show .. . that he did not violate the conditions, or, . . . that circumstances in mitigation suggest that the violation does not warrant revocation." Morrissey v. Brewer, 408 U.S. 471, 488 (1972).

         The issue before us concerns the tension at a revocation hearing between two important rights: the due process right to have an opportunity to be heard and present mitigating evidence and the right against self-incrimination as to pending or potential criminal charges related to the alleged probation violation. We are not unfamiliar with the tension at issue, as we have previously contemplated this very dilemma in Bail u. State, 96 Nev. 435, 610 P.2d 1193 (1980). In that case, we considered whether:

[T]o permit the holding of a probation violation hearing prior to the trial of the underlying criminal charge forces an alleged violator to make a constitutionally unfair election of either foregoing his right to take the stand and to speak in his own behalf at the revocation hearing, or testifying at such hearing and facing the prospect that the evidence elicited through him might be used against him at or in the subsequent criminal trial.

Id. at 437, 610 P.2d at 1194 (emphasis added). We held that the conflict between the two rights was not one of constitutional import and that the lack of a constitutional conflict "le[ft] this court with a policy determination." Id. at 438, 610 P.2d at 1194. After examining a split in authority between those jurisdictions that utilized court supervisory powers to fashion a remedy and those that found no chilling effect by requiring the probationer to decide between the two rights, we declined to establish a rule or requirement. Id. at 438-40, 610 P.2d 1194-96. Instead, we elected to "exercise judicial restraint and defer to the legislature the determination of whether public policy considerations, as distinguished from constitutional mandates, dictate a modification of revocation procedures." Id. at 439, 610 P.2d at 1195. [1]

         Now, nearly 40 years later, this dilemma still exists for probationers at a revocation hearing to choose between the same two important rights, and there has been no undertaking to address this tension. While this court recognizes the gravity of exercising judicial restraint and deferring to the Legislature, we find ourselves in a situation akin to one the Rhode Island Supreme Court encountered in State v. DeLomba, 370 A.2d 1273 (R.I. 1977). There, the court had initially been reluctant to adopt a rule to ease the same tension at issue in this case and deferred the matter to the state legislature. Id. at 1275 ("[W]e did not close the door to future consideration of the argument now advanced. Instead, we deferred, at least for the moment, to the Legislature the determination of whether public policy considerations, as distinguished from constitutional imperatives, dictated an alteration of revocation procedures."). However, after three years of inactivity, the Rhode Island Supreme Court decided that no "useful purpose would be served by [its] continued abstention" and utilized its supervisory jurisdiction to hold that a probationer must be given use and derivative use immunity for any testimony given at the revocation hearing or that the revocation hearing must be postponed until after the criminal trial. Id. at 1275-76. We, like the Rhode Island Supreme Court, initially deferred addressing this issue but, decades later, find no useful purpose in continued abstention.[2]

         We emphasize that we affirm the conclusion in Dail that the tension at issue is not one of constitutional import. See Dail, 96 Nev. at 437, 610 P.2d at 1194 ("[W]e perceive no unconstitutional dilemma for the alleged violator who desires to defend himself or present mitigating evidence at a revocation proceeding. Appellant's predicament does not run afoul of constitutional due process."). It is, instead, one involving public policy and fairness. And it is with these tenets in mind that we now consider the dilemma a probationer faces at a revocation hearing involving two constitutional rights-the "right to be heard and [the] right against self-incrimination." Id.

         "The principal policy underlying a probationer's right to an opportunity to be heard at a revocation hearing ., . is to assure informed, intelligent and just revocation decisions." People v. Coleman,533 P.2d 1024, 1031 (Cal. 1975) (emphasis added). The district court has an interest in exercising its discretion in an informed and accurate manner. See NRS 176A.630 (providing the district court with disposition options after a determination that probation was violated). The probationer and the State also have an interest in "the informed use of discretion-the probationer... to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community." Gagnon, 411 U.S. at 785. Indeed, the Supreme Court has recognized society's interest in not having supervised release rescinded "because of erroneous information or because of an erroneous evaluation of the need to revoke ...

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