Stapleford v. Perrin, 122 N.H. 1083, 1088, 453 A.2d 1304, 1307 (1982). In Moody v. Cunningham, 127 N.H. 550, 503 A.2d 819 (1986), the defendant points out, this court stated that "live testimony, tested by confrontation and cross-examination, is the time-honored method for achieving" accurate factual determinations. Id. at 554, 503 A.2d at 822.
We first address the probative value of the complaints. The tenant argues that the complaints have insufficient probative value and likens them to indictments, relying on Moody v. Cunningham, 127 N.H. 550, 554, 503 A.2d 819 (1986). In Moody, we addressed whether an indictment is sufficient evidence to prove that a defendant violated his parole.
We have recognized that a significant liberty interest exists which is worthy of due process protection under our State Constitution when the State seeks to revoke parole and incarceration may be the sanction of a parole violation. See Stapleford v. Perrin, 122 N.H. 1083, 1088 (1982); Moody v. Cunningham, 127 N.H. 550, 553 (1986); Baker, 128 N.H. at 378, 381; see also Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole revocation deprives individual of conditional liberty). The due process to be afforded includes:
"An indictment represents the conclusion of a grand jury that probable cause exists to believe that a defendant has committed a particular crime." Moody v. Cunningham, 127 N.H. 550, 554, 503 A.2d 819 (1986). We consider whether the indictments returned against the plaintiff entitle the defendants to immunity under RSA 507:8–d or to official immunity.
In Moody v. Cunningham, we noted that "[t]he procedural protections of Stapleford help to ensure that the fact-finder will make an accurate determination on the basis of reliable evidence and verified facts." Moody v. Cunningham, 127 N.H. 550, 554, 503 A.2d 819, 822 (1986). "In the absence of a criminal conviction, the fact-finder must make an independent determination that the defendant committed the alleged violations."
The State's burden of proof in a revocation proceeding is satisfied either "by establishing the fact of a criminal conviction for the acts which constitute the violation or by proof of the commission of the underlying acts." Moody v. Cunningham, 127 N.H. 550, 554, 503 A.2d 819, 821 (1986). The defendant relied primarily on the position that because uncounseled convictions are unreliable they should not be used as the basis for revoking a suspended sentence.
Therefore, review of the "prospective merit" criterion is essentially a determination as to whether probable cause exists. See Moody v. Cunningham, 127 N.H. 550, 554, 503 A.2d 819 (1986) ("An indictment represents the conclusion of a grand jury that probable cause exists to believe that a defendant has committed a particular crime."). Because we conclude that the record supports the family division's probable cause finding, we likewise conclude that the prospective merit criterion favored transfer as well.
In the absence of a criminal conviction for the acts that allegedly constitute the good behavior violation, the State can satisfy its burden by proving "the commission of the underlying acts." Gibbs, 157 N.H. at 540, 953 A.2d 439 (quotation omitted); seeMoody v. Cunningham, 127 N.H. 550, 553-54, 503 A.2d 819 (1986) (holding evidence of criminal indictment was insufficient, standing alone, to justify imposing suspended sentence because "[i]n the absence of a criminal conviction, the fact-finder must make an independent determination that the defendant committed the alleged violations"). Although the State need not "establish criminal liability" to prove a good behavior violation, Stapleford, 122 N.H. at 1089, 453 A.2d 1304, the State must still establish that the defendant engaged in criminal conduct, i.e., conduct not in conformance with the law, Auger, 147 N.H. at 753-54, 802 A.2d 1209.
We have never required such a rigid inquiry in matters dealing with the imposition of a previously deferred or suspended sentence. Rather, we have explained that the "fact-finding process should be flexible," Moody v. Cunningham, 127 N.H. 550, 555, 503 A.2d 819 (1986), because "the only inquiry is usually whether the defendant has been of good behavior or has in some way violated the terms of his freedom," and "not to establish criminal liability," Stapleford, 122 N.H. at 1089, 453 A.2d 1304. In fact, we have held that a non-final conviction subject to a pending appeal was sufficient for the court to conclude that a defendant violated the good behavior provision.
Affording the defendant these procedures ensures "that the fact-finder will make an accurate determination on the basis of reliable evidence and verified facts." Moody v. Cunningham, 127 N.H. 550, 554 (1986); Morrissey, 408 U.S. at 484 (stating that a parole revocation hearing should be "structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior"). Here, the trial court imposed the defendant's two-and-one-half to five year suspended sentence without a hearing.