from a district court's revocation of probation. First
Judicial District Court, Carson City; James E. Wilson, Judge.
L. Kreizenbeck, Public Defender, and Sally S. deSoto, Chief
Appellate Deputy Public Defender, Carson City, for Appellant.
Paul Laxalt, Attorney General, Carson City; Jason D.
Woodbury, District Attorney, and Kristin Luis and Meredith N.
Beresford, Deputy District Attorneys, Carson City, for
THE COURT EN BANC.
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
AND PROCEDURAL HISTORY
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
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.
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).
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.
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
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
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 ...