Background
Jermaine Lewis pleaded guilty to assault in the first degree in January 2021 and was sentenced to ten years incarceration with execution suspended after five years, followed by five years of probation. In April 2023, while on probation, Lewis was arrested for risk of injury to a child. The allegations involved sending sexually explicit text messages to a 15-year-old girl, exposing himself, and soliciting sexual acts in exchange for payment. These actions violated a condition of his probation that he not violate any criminal laws. A violation of probation hearing was held in June 2024.
At the hearing, the state presented testimony from Lewis’s probation officer and a police officer regarding the text messages and alleged conduct. Defense counsel called two witnesses to testify but made no statement regarding Lewis’s constitutional right to testify. When defense counsel rested, neither the trial court nor defense counsel made any representations about Lewis’s decision not to testify, and Lewis remained silent. The trial court found the state proved by a preponderance of the evidence that Lewis violated his probation through the text messages, revoked his probation, and sentenced him to four years of incarceration.
Lewis appealed, raising for the first time a due process claim that his constitutional right to testify was violated because the record did not demonstrate that his waiver of that right was knowing, intelligent, and voluntary. He relied on State v. Morel-Vargas, which established that in criminal trials, a defendant’s waiver of the right to testify must meet this constitutional standard. The state argued that probation revocation proceedings are less formal than criminal trials and require fewer procedural safeguards.
The Court’s Holding
The Connecticut Appellate Court held that a defendant’s constitutional right to testify in a probation revocation proceeding is equivalent to that in a criminal trial, and that a waiver of this right must be knowing, intelligent, and voluntary to satisfy due process. The court found no compelling reason to distinguish between criminal proceedings and probation revocation hearings on this issue. While acknowledging that probation revocation is not a criminal prosecution and does not require all criminal trial protections, the court emphasized that defendants are entitled to minimum due process safeguards, including the right to testify on their own behalf.
The court established that a constitutionally valid waiver requires that “the totality of the record” furnish “sufficient assurance” that the defendant’s waiver was knowing, intelligent, and voluntary. Notably, the court clarified that although trial courts are not constitutionally mandated to conduct an on-the-record canvass of the defendant or to inquire of defense counsel, “the most prudent approach for trial courts would be to canvass defendants regarding a waiver of the right to testify.” Applying this standard to Lewis’s case, the court found the record deficient: defense counsel made no representations to the court about Lewis’s decision, the court did not inquire of either Lewis or counsel, and the record contained no indication that counsel had discussed the right to testify or its waiver. Because the state failed to demonstrate harmlessness beyond a reasonable doubt, the court reversed and remanded for a new hearing.
Key Takeaways
- Defendants possess the same constitutional right to testify in probation revocation hearings as in criminal trials
- A waiver of the right to testify must be knowing, intelligent, and voluntary in both criminal and probation revocation contexts
- The totality of the record must provide sufficient assurance of a valid waiver, and a silent record may be inadequate
- Trial courts should adopt best practices by canvassing defendants about their right to testify, though this is recommended rather than constitutionally mandated
Why It Matters
This decision substantially strengthens procedural protections for probationers facing revocation hearings. By extending the Morel-Vargas standard to probation proceedings, the court recognizes that even though probation revocation is not a criminal prosecution, the deprivation of liberty at stake warrants robust constitutional safeguards. The ruling requires probation officers and trial courts to ensure that when defendants do not testify, there is clear evidence on the record that such a waiver was knowingly and voluntarily made.
For trial courts, the decision signals that while discretion remains in how to establish a valid waiver, the safest practice is to conduct an on-the-record colloquy with the defendant about the right to testify. This protects against reversal and ensures revocation proceedings withstand constitutional challenge. For probationers and their counsel, the decision provides a meaningful basis to challenge revocation hearings where the defendant’s right to testify was not adequately addressed, potentially resulting in new hearings where the defendant can present testimony in their own defense.