RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald
PROBATION VIOLATION HEARINGS
State v. DeRoche, 389 A.2d 1229 (R.I. 1978). Defendant’s probation was violated based upon the hearsay statements of an alleged accomplice. Defendant is entitled to confront state witnesses unless the judge finds good cause. If a witness is unavailable, the court may consider other elements such as reliability and evidentiary exceptions to the hearsay rule.
“… we are bound by the minimum requirements set forth in Morrissey v Brewer. One of those requirements is ‘the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ If the witness is unavailable, then the tribunal may consider other elements such as reliability and evidentiary exceptions to the hearsay rule.” Id. at 1234.
“… before admitting hearsay, particularly on issues that are central to the determination of the commission of the violation, the trial justice must determine whether there is good cause for denying confrontation and/or cross-examination.” Id. at 1234.
State v. Vashey, 823 A.2d 1151 (R.I.2003). “The minimum due process requirements of a violation hearing call [only] for notice of the hearing, notice of the claimed violation, the opportunity to be heard and present evidence in defendant’s behalf, and the right to confront and cross-examine the witnesses against defendant.” Id. at 1155 (quoting State v. Casiano, 667 A.2d 1233, 1237 (R.I.1995).
The right to confront and cross-examine adverse witnesses during probation-revocation hearing is merely a “conditional right,” and “need not be afforded to the defendant in those cases in which the hearing officer has found good cause for not allowing confrontation.” Id. (quoting Casiano, 667 A.2d at 1239).
Furthermore, the rules of evidence are applied less stringently in a probation-revocation hearing than during a trial proceeding.
State v. Casiano, 667 A.2d 1233 (R.I. 1995). Trial court’s denial of confrontation of the complaining witness child upheld by R.I.S.C. Hearsay testimony presented at defendant’s hearing was sufficiently reliable to establish good cause for denying confrontation.
“Before hearsay is admitted, however, particularly on issues that are central to determining whether the violation has been committed, the trial justice must decide whether there is good cause for denying confrontation and/or cross-examination. State v. DeRoche, 389 A.2d 1229, 1234 (1978). Hence, the opportunity to confront and cross-examine adverse witnesses at a violation hearing is a conditional right and need not be afforded to the defendant in those cases in which the hearing officer has found good cause for not allowing confrontation.”
State v. Greene 660 A.2d 261 (R.I. 1995). In a stolen license plate case, the police officer was allowed to testify as to the hearsay statements of the plate’s owner. Defendant was adjudicated a violator of his probation based upon this testimony. R.I.S.C. remanded for a new hearing ruling that the hearsay testimony should not have been admitted without a showing of good cause denying confrontation or indicia of reliability.
“In the case at bar no determination of good cause was made for the denial of the right of confrontation of either of these highly significant witnesses. In the case of D’Ambra, her written statement given in the Cranston police station had virtually no indicia of reliability. It was in contradiction of other documentary evidence of title to the automobile and her own initial statement given to the police when she sought release of the automobile. Certainly confrontation and cross-examination of this witness were essential to defendant.” Id. at 263.
State v. Sparks, 667 A.2d 1250 (R.I. 1995). Prior inconsistent statements may be used as the sole basis for a violation of probation. Reasonable satisfaction is a lower quantum of proof than preponderance of the evidence.
“…because the ‘reasonably satisfied’ standard of a probation-revocation hearing allows an even more relaxed burden of proof than the preponderance of the evidence standard required in a civil case, a statement inconsistent with the declarant’s testimony introduced at a violation hearing should be considered enough, standing alone, to sustain the state’s burden of proving a defendant’s violation by reasonably satisfactory evidence.” Id. at 1252.
State v. Bernard, 925 A.2d 936 (R.I. 2007). Admission of hearsay testimony at defendant’s probation revocation hearing violated his due process right to confront witnesses. The state presented one witness, who lacked personal knowledge of defendant’s probationary record, and trial court failed to conduct any inquiry into whether there was “good cause” to deny confrontation of further witnesses. R.I.S.C. vacated judgment and remanded for a new hearing.
The “good cause” determination for denying confrontation at a probation proceeding is generally based on both “the reliability of proffered substitute evidence and the state’s explanation of why confrontation was undesirable or impractical.” Id. at 939 (quoting State v. Casiano, 667 A.2d 1233, 1239 (R.I. 1995)).
“Failure to make such a determination constitutes reversible error.” Id.
Rather than conducting the threshold “good cause” inquiry, the hearing justice simply stated that “hearsay is admissible in a violation hearing.” This was an “oversimplification of the law” that resulted in reversible error once testimony was admitted.
State v. Pompey, 934 A.2d 210 (R.I. 2007). Police responded to a domestic assault call and were greeted at the door by the visibly upset and shaking victim, who stated “[Defendant] beat me up.” The victim did not testify at defendant’s probation revocation hearing and the state sought to admit her statement through the responding officer. Defendant argued that, under Crawford v. Washington, 541 U.S. 36 (2004), admitting the statement would violate his constitutional right to confront the witness.
Applying the interrogation test from Davis v. Washington, 547 U.S. 813 (2006), R.I.S.C. affirmed the trial court’s finding that the statement was “nontestimonial” because it was “made voluntarily during the initial response of the police officer to an emergency call for assistance,” and that it was then admissible hearsay as an excited utterance.
Regardless, Crawford does not apply to probation revocation hearings “because a probation violation proceeding is not a criminal prosecution.” Therefore, even testimonial hearsay, unequivocally prohibited at trial, is permissible in a probation revocation hearing. Id. at 214.
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