Monday, June 27, 2011

Hearsay admission at revocation hearing was error

Hearsay Admission at Revocation Hearing Was Error

By Deborah Elkins
Published: June 23, 2011

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At a robbery defendant’s probation revocation hearing, the trial court violated defendant’s due process right to confront the witnesses against him when it admitted a detective’s hearsay testimony concerning two other offenses, one which never resulted in charges against the defendant and one where the charges were dropped; the Court of Appeals says that in non-trial proceedings involving an accused’s liberty interest, a balancing approach to admission of hearsay is the preferred test.

Hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court’s discretion, if the court specifically finds good cause for not allowing confrontation. Neither our Supreme Court nor this court have squarely addressed what constitutes “good cause” for denial of the due process right of confrontation in the wake of the many changes wrought by iiiCrawford v. Washington,iii 541 U.S. 36 (2004), and its progeny’s construction of the Sixth Amendment Confrontation Clause.

First, we must decide whether the evidence at issue constitutes “testimonial hearsay,” which in the wake of iiiCrawfordiii is a predicate to the applicability of the right of confrontation under any circumstances.

With regard to the first alleged crime that took place on Oct. 2, 2009, the detective spoke with the victim and his daughter by telephone four days after it had occurred and after the initial officers had done a full preliminary investigation in order to obtain the facts regarding the alleged robbery. On Oct. 8, 2009, the detective was called to come down to the police station regarding the second alleged crime that had occurred that day, and she stated that she met with the victim at the police station that day regarding the alleged home invasion robbery. When she spoke with the individuals, it was in the formal setting of a police officer investigating a past crime by seeking facts regarding each alleged robbery for the purpose of apprehending and prosecuting the perpetrator.

Also, the information was not provided during an ongoing emergency in order to enable police to meet the emergency and to understand what was happening; but rather, the detective was seeking to determine what had already occurred and to preserve it for later use in connection with court proceedings.

We conclude the detective’s testimony was testimonial hearsay, to which the limited 14th Amendment due process right of confrontation applies.

Under the “reliability” test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness, and the substantial trustworthiness test implicitly incorporates good cause into its calculus.

Here, the detective’s hearsay testimony regarding both alleged crimes based solely on her conversations with the witnesses does not rise to the level of demonstrable reliability required for admissibility.

Because the out-of-court statements made to the detective were neither inherently reliable by satisfying a firmly rooted exception to the hearsay rule nor were the statements corroborated by any other evidence presented at the revocation hearing, the hearsay evidence offered by the detective does not rise to the level of being so demonstrably reliable that defendant’s limited right to confrontation in a probation revocation hearing should have been denied.

Alternatively, under the balancing test, the court weighs the probationer’s interest in confronting a witness against the interests of the state in not producing the witness and the state is required to show good cause for denying confrontation. Here, the hearsay testimony was indisputably important to the circuit court’s finding of a violation. The prosecution did not meet its burden of establishing why it should be excused from producing the adverse witnesses for cross-examination, nor is the evidence demonstrably reliable as previously discussed. There is no evidence the commonwealth made any good faith attempt to subpoena the witnesses or otherwise produce them in court. In short, the record reflects no reason advanced by the commonwealth as to what governmental interest was served by not producing the witnesses against defendant. The circuit court could not and did not balance defendant’s interest in confronting the witnesses against him against any interest the commonwealth may have had in denying defendant that right.

Although the circuit court would not necessarily have erred had it applied the reliability test to the detective’s testimony, we think the balancing test ought to be the preferred test used in the courts of the commonwealth since it requires confrontation ab initio unless, and until, the commonwealth provides a sufficient reason to outweigh an accused’s interest in confronting and cross-examining the evidence against him. We hold that in non-trial proceedings involving an accused’s liberty interest, an approach that requires the commonwealth to explain and justify its failure to provide confrontation before considering the evidentiary admissibility of any testimonial hearsay is more consistent with the overall purpose of requiring an opportunity to confront testimonial hearsay as the default position for any due process analysis, and the analytical framework from the relevant case law.

In any event, in this case the circuit court did not apply either test in overruling defendant’s objection to the detective’s testimony. The record here fails to establish “good cause” for denying defendant an opportunity to confront and cross-examine the witnesses against him, and the circuit court erred in admitting the testimonial hearsay evidence offered by the detective.

Reversed and remanded.

Dissent
Haley, J.: I respectfully dissent. Courts have developed two tests to determine whether good cause exists. Virginia has adopted a reliability test that admits hearsay if it is sufficiently reliable. While one might appreciate the majority’s analysis of Crawford as applicable in the context of criminal trials, that analysis has no bearing on revocation proceedings. I would hold that the hearsay here was properly admissible under existing Virginia jurisprudence.

Henderson v. Commonwealth
(Humphreys) No. 0688-10-4, June 21, 2011; Arlington County Cir.Ct. (Kendrick) Elizabeth L. Tuomey for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 011-7-210, 48 pp.










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