DWI Appeal - Confrontation Clause Applies in Probation Revocation Hearing Too

In the fourth of a series of cases involving the right of confrontation, the next case discusses the right of confrontation under the Due Process Clause of the 14th amendment (as opposed to the 6th Amendment right of confrontation found in Melendez-Diaz). The case of Henderson v. Commonwealth of Virginia, --- S.E.2d ----, 2011 WL 2447084 (Va.App.) involved the admissibility of evidence of other crimes committed while the defendant was on probation, allegedly in violation of the right of confrontation under the due process clause.
During the hearing, the only evidence offered in support of any of the alleged violations of the conditions of probation was the testimony of Detective Rosa Ortiz (“Ortiz”) who testified regarding two alleged robberies that she had investigated in October 2009. No charges were brought against Henderson in connection with one of these robberies, and the other robbery charge was nolle prosequied. During the Commonwealth's questioning of Ortiz, Henderson's counsel objected to her testimony regarding what the witnesses in both cases told her, as hearsay in violation of the Confrontation clause.
The Virginia court first explained the type of 'confrontation' one is entitled to under the 14th amendment. “The Sixth Amendment right is limited to ‘criminal prosecutions,’ and a revocation hearing is not a ‘criminal prosecution.’“ Dickens, 52 Va.App. at 417 n. 1, 663 S.E.2d at 550 n. 1 (citing Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). “[B]oth the United States Supreme Court and this Court have ... held that probation revocation hearings are not a stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution.” Dickens, 52 Va.App. at 417, 663 S.E.2d at 550 (citing Davis v. Commonwealth, 12 Va.App. 81, 84, 402 S.E.2d 684, 686 (1991)); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972).FN7 However, “[p]robation revocation, like parole revocation, ... does result in a loss of liberty. Accordingly ... a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer.” Scarpelli, 411 U.S. at 782; see Davis, 12 Va.App. at 84, 402 S.E.2d at 686. In Morrissey, the United States Supreme Court required that the following “minimum requirements of due process” for a revocation hearing be provided:

(a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need to be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation].
408 U.S. at 489 (emphasis added).


As stated by the Virginia court herein:

“Specifically, the United States Supreme Court has stated that in revocation hearings ‘formal procedures and rules of evidence are not employed,’ Scarpelli, 411 U.S. at 789, and that the process of revocation hearings ‘should be flexible enough to consider evidence ... that would not be admissible in an adversary criminal trial,’ Morrissey, 408 U.S. at 489.” Dickens, 52 Va.App. at 421, 663 S.E.2d at 552. “Thus, 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,” id. (citing Morrissey, 408 U.S. at 489), if the circuit court “specifically finds good cause for not allowing confrontation,” Morrissey, 408 U.S. at 489 (emphasis added). 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 Crawford v. Washington, 541 U.S. 36 (2004), and its progeny's construction of the Sixth Amendment Confrontation Clause.
The Virginia court found that:
“[i]t is entirely clear from the circumstances [in this case] that the interrogation[s were] part of an investigation into possibly criminal past conduct,” Davis, 547 U.S. at 829, and thus the primary purpose of the interrogations was “ ‘for the purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution,’ “ Crawford, 281 Va. at 98, 704 S.E.2d at 116 (alterations in original) (quoting Davis, 547 U.S. at 822). As stated, the challenged evidence in the present case is a detective's testimony that included, and was based on, information provided to her by witnesses during her investigation of two alleged robberies after they had occurred—“ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ “ Melendez–Diaz, 129 S.Ct. at 2531 (quoting Crawford, 541 U.S. at 52).

Having found that the witness' statements were testimonial, the Va. court then determined whether there was 'good cause' to suspend the right of confrontation. The Virginia court noted that, in determining whether to admit testimonial hearsay evidence under the “good cause” exception, other courts have adopted either of two methods in determining whether evidence admitted at a probation revocation hearing violated the limited due process right to confrontation and cross-examination. In Reyes v. State, 868 N.E.2d 438, 441 (Ind.2007), the Indiana Supreme Court explained both methods:

"In one, 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. E.g., United States v. Martin, 382 F.3d 840, 844–45 (8th Cir.2004). In the balancing test, the State is required to show good cause for denying confrontation. See United States v. Rondeau, 430 F.3d 44, 48 (1st Cir.2005). In another test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness. E.g., United States v. Kelley, 446 F.3d 688, 692 (7th Cir.2006). The requirement, found in Morrissey, 408 U.S. at 489, that the trial court find “good cause” before denying the right to confrontation plays an explicit role when a trial court performs a balancing test; however, this does not mean that Morrissey's good cause requirement is not addressed in the substantial trustworthiness test.... [T]he substantial trustworthiness test implicitly incorporates good cause into its calculus.

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.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692; Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir.2003); Hampton v. State, 203 P.3d 179, 184–85 (Okla.Crim.App.2009). “Hearsay evidence has been held admissible in federal probation and parole revocation proceedings where the evidence is ‘demonstrably reliable.’ “ Turner, 278 Va. at 742, 685 S.E.2d at 667 (quoting McCallum, 677 F.2d at 1026). In Curtis v. Chester, 626 F.3d 540, 548 (10th Cir.2010), the court noted the following “[e]xamples of evidence possess[ed] recognized indicia of reliability”:

(1) the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence), (2) statements falling under an established exception to the hearsay rule, (3) statements corroborated by detailed police investigative reports, and (4) statements corroborated by the releasee's own statements. See [ Scarpelli], 411 U.S. at 782 n. 5; Prellwitz v. Berg, 578 F.2d 190, 193 (7th Cir.1978) (evidence falling under the “business record” hearsay exception is reliable); Jackson, 323 F.3d at 130–31 (evidence corroborated by observations in a police investigative report is reliable); McCallum, 677 F.2d at 1026 (evidence corroborated by the releasee's testimony is reliable).
Applying the reliability test, the Virginia Court found that the testimony was not so reliable so as to excuse confrontation:
"In turning to the facts in this case, Ortiz'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. The hearsay statements used to establish that Henderson violated the conditions of probation meet no firmly rooted exception to the hearsay rule that implies their inherent reliability. In addition, the record does not convey whether Ortiz was speaking purely from her memory in conveying the statements of the witnesses, or whether she was utilizing a police report or her notes thus further diminishing the reliability of her testimony. See Comito, 177 F.3d at 1171 (concluding that “[u]nsworn verbal allegations are, in general, the least reliable type of hearsay ...”); United States v. Pratt, 52 F.3d 671, 677 (7th Cir.1995) (holding the officer's hearsay testimony was reliable because it was consistent with the written statements of the victim in addition to other corroborating information).

Concluding, the court stated: "Because the out-of-court statements made to Ortiz were neither inherently reliable by satisfying a firmly rooted exception to the hearsay rule nor were the statements corroborated by other evidence presented at the revocation hearing, the hearsay evidence offered by Ortiz does not rise to the level of being so demonstrably reliable that Henderson's limited right to confrontation in a probation revocation hearing should have been denied."
"[U]nder 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.” Continuing, the court stated:
"Henderson's interest in confronting the witnesses was high in that the nature of the statements was “ ‘detailing the specific criminal wrongdoing of the defendant’ “ in crimes that he denied any involvement in. Dickens, 52 Va.App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va.App. 749, 755, 644 S .E.2d 406, 410 (2008)); see also McCormick, 54 F.3d at 222 (“It follows, therefore, that a releasee's interest in cross-examining a laboratory technician regarding a scientific fact is less than would be his interest, for example, in confronting a hearsay declarant regarding what the declarant may have seen. The truth of the former can be verified through methods of science; the truth of the later can best be verified through the rigor of cross-examination, conducted under the circumspect eye of the district court.”).
The court found against the State under the balancing test as well:
"In short, the record reflects no reason advanced by the Commonwealth as to what governmental interest was served by not producing the witnesses against Henderson. Thus, Henderson's interest in confronting the witnesses who spoke with Ortiz necessarily outweighed the interest of the Commonwealth in not producing them. In this case, the Commonwealth neither satisfied Henderson's due process right to confront the adverse witnesses against him nor adequately justified its failure to do so. Curtis, 626 F.3d at 548 (“Instead of hindering Curtis's ability to test the victim's statements, the government did as much as it could to facilitate it.”). Thus, the circuit court could not, and therefore did not, balance Henderson's interest in confronting the witnesses against him against any interest the Commonwealth may have had in denying Henderson that right.
As a result, the sentence following the revocation hearing was reversed, and the matter was remanded for a new hearing.


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