As we held in People v. Ressin, 620 P.2d 717, 720 (Colo. 1980), "[t]here are critical differences between a criminal trial and a probation revocation proceeding." See also People v. Atencio, 186 Colo. 76, 78, 525 P.2d 461, 462-63 (1974). These differences appear in stark contrast when we compare the purposes of each proceeding, the procedures that govern the process, and the rights afforded to the accused. See § 16-11-206(3), 6 C.R.S. (2002); People v. Carr, 185 Colo. 293, 298, 524 P.2d 301, 303 (1974).

Moreover, we hold that a trial court is not required to give a defendant an affirmative advisement of his right to testify in a hearing to revoke a deferred judgment and sentence. Defendants in revocation proceedings are not entitled to the full range of constitutional guarantees afforded to defendants in criminal prosecutions. See People v. Atencio, 186 Colo. 76, 78, 525 P.2d 461, 462 (1974). In Atencio, we set forth the minimum requirements of due process at parole and probation revocation hearings.

¶ 36 Fifth, a probationer facing a revocation hearing "is not entitled to claim the full range of constitutional guarantees available to one who has not yet been convicted of a crime." People v. Atencio , 186 Colo. 76, 78, 525 P.2d 461, 462 (1974) ; see also Morrissey v. Brewer , 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ("We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations."). ¶ 37 Indeed, there are "critical differences between criminal trials and probation revocation hearings[.]"

¶ 26 Finally, we disagree with Finney's contention that compliance with the penalty advisement of Crim. P. 11(b)(4) in revocation proceedings is required to comport with constitutional due process. Recognizing that there are “critical differences between criminal trials and ... revocation hearings,” People v. Atencio, 186 Colo. 76, 79, 525 P.2d 461, 462 (1974), we have long held that “[d]efendants in revocation proceedings are not entitled to the full range of constitutional guarantees afforded to defendants in criminal prosecutions,” Allen, 973 P.2d at 622. See also Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (“We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.”). As the Supreme Court observed in Morrissey, “[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special ... restrictions.”

Although we have not heretofore passed upon that question, courts elsewhere, without distinguishing between parole and probation revocation hearings, have almost unanimously ruled the evidence admissible. United States v. Vandemark, 522 F.2d 1019 (9th Cir. 1975); United States v. Farmer, 512 F.2d 160 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970); In re Martinez, 1 Cal.3d 641, 463 P.2d 734, 83 Cal.Rptr. 382, cert. denied. 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88 (1970); People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974); People v. Dowery, 20 Ill. App.3d 738, 312 N.E.2d 682 (1974); Dulin v. State, 169 Ind. 211, 346 N.E.2d 746 (1976); State v. Caron, 334 A.2d 495 (Me. 1975); State v. Kuhn, 7 Wn. App. 190, 499 P.2d 49 (1972). At the root of most of these decisions is the accepted constitutional tenet that the exclusionary rule proscribing the admission of concededly relevant and reliable evidence is designed not to "redress the injury to the privacy of the search victim," United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 619, 38 L.Ed.2d 561, 571 (1974); see Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601, 613 (1965); Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 388-89 (1964), but to deter unconstitutional methods of law enforcement.

This accords with the almost unanimous view that the exclusionary rule does not usually apply in probation revocation proceedings. United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973) (alternate holding); United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir. 1975); United States v. Hill, 447 F.2d 817, 818-19 (7th Cir. 1971) (alternate holding); United States v. Allen, 349 F. Supp. 749, 753-54 (N.D.Cal. 1972); United States ex rel. Lombardino v. Heyd, 318 F. Supp. 648, 650-52 (E.D.La. 1970), aff'd, 438 F.2d 1027 (5th Cir.) (per curiam), cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1971); People v. Calais, 37 Cal.App.3d 898, 904, 112 Cal.Rptr. 685, 689 (3d Dist. 1974) (alternate holding); People v. Hayko, 7 Cal.App.3d 604, 609-11, 86 Cal.Rptr. 726, 730 (1st Dist. 1970); People v. Atencio, Colo., 525 P.2d 461, 462-63 (1974); Bernhardt v. State, 288 So.2d 490, 500 (Fla. 1974) (alternate holding); Brill v. State, 159 Fla. 682, 684-86, 32 So.2d 607, 608-10 (1947); People v. Dowery, 20 Ill.App.3d 738, 741-44, 312 N.E.2d 682, 684-87 (1st Dist. 1974); State v. Caron, Me., 334 A.2d 495, 499-500 (1975); State v. Thorsness, Mont., 528 P.2d 692, 695-96 (1974); Stone v. Shea, 113 N.H. 174, 177, 304 A.2d 647, 649 (1973); State v. Simms, 10 Wn. App. 75, 79-81, 516 P.2d 1088, 1091-92 (2d Div. 1973) (dictum); State v. Kuhn, 7 Wn. App. 190, 192-95, 499 P.2d 49, 51-52 (2d Div.), aff'd on other grounds, 81 Wn.2d 648, 650-51, 503 P.2d 1061, 1063 (1972). But see Michaud v. State, 505 P.2d 1399, 1402-03 (Okl.Cr. 1973).

Several other courts, without discussing the due process implications, have held that the exclusionary rule does not apply to parole or probation revocation proceedings. See United States v. Frederickson, 581 F.2d 711 (8th Cir. 1978); United States v. Winsett, 518 F.2d 51 (9th Cir. 1975); United States v. Farmer, 512 F.2d 160 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975); United States v. Brown, 488 F.2d 94 (5th Cir. 1973); United States v. Hill, 447 F.2d 817 (7th Cir. 1971); State v. Sears, 553 P.2d 907 (Alaska 1976); In re Martinez, 1 Cal.3d 641, 463 P.2d 734, 83 Cal.Rptr. 382, cert. denied, 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88 (1970); People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974); Croteau v. State, 334 So.2d 577 (Fla. 1976); People v. Dowery, 62 Ill.2d 200, 340 N.E.2d 529 (1975); State v. Thorsness, 165 Mont. 321, 528 P.2d 692 (1974). I need not decide the constitutional issue of whether due process requires the exclusion of illegally seized evidence in parole revocation proceedings, for, even if the Court of Appeals for the Third Circuit were to disagree with the majority of courts which have held that exclusion is not required, defendants would still be entitled to qualified immunity from liability for damages to plaintiff.

The defendant cites this language from our decision in Spratt. where we left for a later day the question of whether the exclusionary rule would apply at a probation revocation hearing to evidence derived from “searches which are consciously directed toward or intended to harass probationers * * * or which shock the conscience of the court * * *.” Spratt, 120 R.I. at 195 n. 2, 386 A.2d at 1095 n. 2 (citing United States v. Winsett, 518 F.2d 51, 54 (9th Cir.1975); People v. Atencio, 186 Colo. 76, 525 P.2d 461, 463 (1974)). Because there is nothing in the record to suggest that the officers' conduct shocks the conscience, we see no need to address the question left unanswered in Spratt at this time.

While due process must be accorded the respondent, there is no entitlement to the full range of criminal trial safeguards because the court is not dealing with a person who had yet to be convicted of anything. People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974). The full requirement of Ake v. Oklahoma, supra, to the extent it might require providing independent psychiatric help to determine competency at the time of "trial" as well as competency at the time the offense was committed, does not apply to a proceeding that is not a part of a criminal trial.

Cf. § 16-11-206, 8A C.R.S. (1973) (setting forth a similar burden of proof for probation revocation proceedings). The judge should have discretion to relax the rules of evidence to permit reliable information to be received even though it might not meet the formal requirements of the Colorado Rules of Evidence. Cf. People v. Atencio, 186 Colo. 76, 78-79, 525 P.2d 461, 462-63 (1974) (court not bound by the strict rules of evidence in probation revocation proceeding). At a minimum, the defendant should be given the right to present evidence concerning whether he violated a rule or condition of his placement and to confront any witnesses against him unless good cause is shown that a substantial risk of serious harm would exist if such confrontation were allowed. Cf. Morrissey v. Brewer, 408 U.S. at 489 (relating to parole revocation proceedings); People v. Varner, 181 Colo. 146, 149, 508 P.2d 390, 391 (1973) (the requirements set out in Morrissey v. Brewer apply equally to the revocation of probation; the probationer shall be allowed "to be heard in person, present evidence in his own behalf, and confront and examine adverse witnesses"); American Bar Association Standards for Criminal Justice, Sentencing Alternatives and Procedures, Standards 18-7.3, — 7.5 (1986 Supp.).