Hearsay in Probation Violation Hearings

For a long time, hearsay has just been a part of probation hearings. The rationale for this is that a probation hearing is a post-conviction hearing so that the full panoply of constitutional protections are not available for the violator. However, there have always been some protections available for those accused of probation violations and the line has always been a little fuzzy. Last week, the Virginia Court of Appeals addressed whether hearsay can be allowed in a probation hearing in the post-Crawford world.

In Henderson v. Commonwealth, JUN11, VaApp No. 0688-10-4, the Commonwealth introduced witness statements of victims of crimes which had never been prosecuted through the officer who investigated the crimes. The defendant objected. The trial court allowed the testimony. Then came the appeal.

The Virginia Court of Appeals references USSC precedent and states that there is a 14th Amendment due process right for a defendant in a probation violation case to cross examine witnesses against him unless there is a finding of “good cause” for not allowing the confrontation.

The Court then states that the first test which must be passed is whether a statement the prosecution wishes to introduce is actually testimonial. The test adopted here is the same one adopted in the 6th Amendment confrontation cases: the primary purpose test. In other words, if the statement which is sought to be introduced was primarily taken to help capture and prosecute the defendant it is subject to constitutional confrontation requirements. If the primary purpose of the questioning had another purpose (i.e. dealing with an emergency) there is no constitutional entanglement and State rules of evidence are controlling. In other words, if the statement is non-testimonial hearsay it can be introduced, just as it always was, but testimonial hearsay must face the “good cause” test.

The Court tells us that there are two tests to determine whether good cause exists for not requiring the actual speaker of a statement to testify.

Test 1: Balancing Test - The trial court employs a balancing test that weighs the probationer’s interest in confronting a witness against the interests of the State in not producing the witness.

Test 2: Reliability Test - The trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness.

The Court goes on to state that the reliability test has been implicitly approved in Virginia and the balancing test was found not to apply in the same case (a case involving non-testimonial governmental documents). However, the Court does not explicitly endorse either test. Instead, it runs through both and finds that the statements in this case should not have been allowed under either test. The Court seems to prefer the reliability test, but to be covering its bases in case a superior court should take this question up and decide to use the balancing test.

The Reliability Test: The reliability test is addressed first and the court goes out of its way to point out that good cause is implicit in the reliability test. It does absolutely nothing to explain this statement and it comes across as a gloss. On its face, this makes the reliability test appear to be the less valid of the two tests. However, this might be fixable if in the test above “certain level of reliability” is defined as being equal to, or greater than, that level of reliability which would make the presence of the actual person who made the statement initially entirely irrelevant.

Then the Court goes on to give several examples of statements which have been recognized as being reliable in federal appellate courts:

the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence),

statements falling under an established exception to the hearsay rule

statements corroborated by detailed police investigative reports

statements corroborated by the releasee’s own statements

statements given under oath,

statements supported by corroborating evidence

Also included are some which have been found to be not reliable:

out-of-court statements reflecting an adversarial relationship with the accused

statements containing multiple layers of hearsay

The Court then goes on to find that the unsworn allegations of crime victims are not reliable and therefore an officer cannot restate them as hearsay during a probation violation hearing. Nevertheless, be aware that there is a lot of language in this case which seems to indicate that if there was other corroborating evidence the reliability of the victims' statements could be bolstered to the point that they are reliable and could be introduced.

The Balancing Test: The balancing test has two sides to it. The Court adopts two factors on the defendant's side of the scale:

the importance of the hearsay evidence to the court’s ultimate finding

the reliability of the facts to be proven by the hearsay evidence

On the other side, the Court adopts two factors to weigh the prosecutor's interest in allowing the hearsay in:

the explanation the government offers of why confrontation is undesirable or impracticable

the reliability of the evidence which the government offers in place of live testimony

You'll notice that reliability is on both sides of the scale. In fact, this seems to be a reliability-plus test. Basically, once reliability is established the weight the evidence will carry against the defendant must be weighed against the government's reason for not having the person who made the statement available.

In this case, the Court found that the hearsay evidence weighed very heavily toward the finding that the defendant had violated his probation. It then found that there was no evidence that the government had tried to subpoena the witnesses nor evidence that the witnesses could not be brought to the trial court. Consequently, the hearsay was inadmissible.

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Conclusion: At least for the near future, the standard in Virginia seem to be that testimonial hearsay can only be introduced if it passes the reliability test. Interestingly, the Court recognizes, in a footnote, that this may not pass a straight Crawford test, but it points out that this is confrontation under the 14th Amendment, not confrontation under the 6th Amendment. Therefore, a strict compliance with Crawford does not apply.