The Right to Confront Adverse Witnesses at Post-Conviction Release Revocation Hearings

The Right to Confront Adverse Witnesses at Post-Conviction Release Revocation Hearings Bruce Zucker* ABSTRACT Offenders on probation, parole, and other conditional release often violate the terms of their release and are subject to re-incarceration. Fourteenth Amendment Due Process requires some form of evidentiary hearing before a detached decision maker prior to a final determination of the violation. Although hearsay evidence is admissible at these hearings, the federal courts have held that the releasee is entitled to a limited right to confront and cross-examine the source of the hearsay against him. This article explores the parameters of that limited right. I. INTRODUCTION Virtually every jurisdiction in the United States has in its criminal system a parole, probation, or other supervised release 2 structure. 3 * Professor, College of Business and Economics, California State University, Northridge. J.D. Loyola Law School (1993); B.A. University of California, Los Angeles (1989). I. "[A]II states except Maine and Virginia have some requirement for post-prison or parole supervision, and nearly 80 percent of all released prisoners in 1997 were subject to some form of conditional community or supervised release." Joan Petersilia, Parole and Prisoner Reentry in the United States, 26 CRIME & JUSTICE 479, 482 (1999). "Criminal probation is an alternative to incarceration in which a convicted criminal is allowed to serve all or part of his sentence at liberty, subject to the supervision of the sentencing court." Daniel F. Piar, A Uniform Code of Procedure for Revoking Probation, 31 AM. J. CRIM. L. 117, 117 (2003). 2. See, e.g., 18 U.S.C. 3583 (2000 & Supp. IV 2004) (providing for the imposition of supervised release in federal felony or misdemeanor matters). 3. All forms of post-incarceration release supervision will collectively be referred to as "parole" in this article as the courts have found that the rights afforded to each are often interchangeable. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3 (1973) ("Despite the

CRIMINAL AND CIVIL CONFINEMENT [Vol. 34:87 Convicted offenders released on parole are placed under the supervision of a parole officer or parole agent. 4 Typically, a parolee is subjected to numerous conditions of release, including: reporting to a parole agent on a regular basis; being subject to a search of his person, residence, and property; and complying with other restrictions on his movements and activities in the community. A parolee is "entitled to retain his liberty as long as he substantially abides by the conditions of his parole." 5 Often, parolees violate the terms of their release. As of December 2005, approximately thirty-eight percent of the nearly five million adults on federal or state probation or parole supervision 6 committed a violation of their release conditions and were returned to custody. 7 In California, seventy percent of inmates released to parole supervision annually will violate parole and be returned to custody within twenty-four months of their release from prison. 8 This translates into over 80,000 parolees being returned to custody in California for suspected parole violations each year. Before returning to prison for suspected parole violations, parolees in every jurisdiction are entitled to a due process hearing before a court or parole board to ensure that the violation is predicated upon verified fact. 10 It is a basic precept in American jurisprudence that courts will not generally accept hearsay evidence unless it is a special proceeding or if one of the exceptions to the "hearsay rule" applies." The due process hearing afforded parolees, commonly referred to as a release violation or parole undoubted minor differences between probation and parole, the commentators have agreed that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole."); see also United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994) (parole and supervised release revocation subject to essentially the same due process protections). 4. See generally Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REv. 623 (2006). 5. Morrissey v. Brewer, 408 U.S. 471, 479 (1972). 6. See LAUREN E. GLAZE & THOMAS P. BONCZAR, U.S. DEP'T OF JUSTICE, PROBATION AND PAROLE STATISTICS IN THE UNITED STATES, 2005 1-2 (2006), http://www.ojp. usdoj.gov/bjs/pub/pdf/ppus05.pdf. 7. Id. 8. Joan Petersilia and Robert Weisberg, Parole in California: It's a Crime, L.A. TIMES, Apr. 23, 2006, at M2. 9. Robert K. Ross, Prison Reform Must Include the Inmates, SACRAMENTO BEE, Dec. 3, 2006, at E4. 10. Morrissey, 408 U.S. at 488. 11. See, e.g., Nicole J. Thomas, Note, "They Told Me He Said He Would Kill Me": Why Hearsay Should Get Full Weight in Asylum Proceedings, 37 CAL. W. INT'L L.J. 299, 307 (2007).

2008] CONFRONTATION AT REVOCATION HEARINGS 89 revocation hearing, 12 is a "special proceeding" in which hearsay evidence is allowed.' 3 However, criminal defendants' federal constitutional right to confront and cross-examine adverse witnesses is, with some limitations, extended to parolees in parole revocation hearings.14 The presence of hearsay in parole revocation hearings often clashes with the parolees' right to confront and cross-examine witnesses. For example, consider a hypothetical situation where Victor accuses David, a parolee, of identity theft. According to Victor, David assumed Victor's identity when David applied for and received a credit card in Victor's name. David misused the card, charging over $20,000 in merchandise. After failing to pay the bill, the credit card company reported Victor in default. Although Victor was relieved of the debt, Victor's credit was ruined for almost six months. When Victor discovered that David, whom he suspected was responsible for the identity theft, was on parole in California, he contacted Paul, David's parole agent, explaining the entire story to him. Paul prepared a parole violation report and filed it with the state parole board, the California Board of Parole Hearings. Paul arrested David for identity theft. David denied the charge and demanded a hearing. At the hearing, Paul testified as to what Victor told him. David objected, demanding that Victor attend the hearing so that David could cross-examine him. The hearing officer overruled David's objection, stating that hearsay is admissible at parole violation hearings. The hearing officer found good cause that David violated parole and returned him to prison for one year. The David/Victor scenario is quite common at parole revocation hearings. Even though hearsay is generally admissible at these hearings, parolees are nevertheless entitled to a limited right to cross and confront adverse witnesses. 15 This article will examine the allowance of hearsay evidence in parole revocation hearings and the parolees' limited right to confront and cross-examine witnesses. The article will offer an argument for the limitation of hearsay evidence in parole revocation hearings. 12. See Morrissey, 408 U.S. at 480. 13. Id. at 489. The parole revocation process is "a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id. 14. "In all criminal prosecutions, the accused shall... have the Assistance of Counsel for his defense." U.S. CONST. amend. VI. 15. See Morrissey, 408 U.S. at 489.

CRIMINAL AND CIVIL CONFINEMENT [Vol. 34:87 II. LIMITED RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES In its seminal opinion, Morrissey v. Brewer, 16 the U.S. Supreme Court held, inter alia, that parolees facing revocation of their Parole release are entitled to some minimum level of due process review. Included in the review is the parolee's "right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)."' 8 The Morrissey Court did not elaborate upon the scope of the right to confront or cross-examine witnesses. However, the Morrissey Court clearly had no intention of availing parolees to the full constitutional protection afforded to defendants facing criminal charges. 19 Rather, the Court limited its review to the issue of whether a parolee is entitled some form of crossexamination and confrontation of adverse witnesses prior to the revocation of parole. 20 III. UNITED STATES V. COMITO: THE NINTH CIRCUIT REQUIRES CONFRONTATION The scope of a parolee's right to cross-examine and confront adverse witnesses at release violation hearings was explored in detail by the Ninth 16. Id. at 471. For further discussion on the Morrissey Court's impact on the rights of parolees at revocation hearings, see Sharif A. Jacob, The Rebirth of Morrissey: Towards a Coherent Theory of Due Process for Prisoners and Parolees, 57 HASTINGS L.J. 1213 (2006); Stephen S. Sypherd & Gary M. Ronan, VI. Prisoners' Rights: Substantive Rights Retained by Prisoners, 89 GEO. L.J. 1897 (2001). 17. Morrisey, 480 U.S. at 488-89. 18. Id. 19. "We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id. at 489. It is important to note that the Morrissey Court seems to have based the "minimum process due" in parole revocation matters on the Fourteenth Amendment's Due Process Clause as opposed to any of the criminal procedure rights conferred by the Fourth, Fifth, Sixth, or Eighth Amendments. The opening line of the main opinion reads "[w]e granted certiorari in this case to determine whether the Due Process Clause of the Fourteenth Amendment requires that a State afford an individual some opportunity to be heard prior to revoking his parole." Id. at 472. 20. The Morrissey Court did not expand upon the extent or scope of the right. The Court simply stated, "Our task is limited to deciding minimum requirements of due process. They include... (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). Id. at 488-89.

2008] CONFRONTATION AT REVOCATION HEARINGS 91 Circuit in United States v. Comito. In Comito, the defendant was released from federal prison following a sixty-three-month sentence for distributing cocaine. 22 During his six-year term of supervised release, his probation officer charged him with, inter alia, unauthorized use of credit cards and checks belonging to his former girlfriend and roommate, Deidre Connell. 23 Comito claimed that he had permission to use them. 24 Ms. Connell failed to attend any of the scheduled release violation hearings in federal district court. 2 5 Instead, Comito's probation officer testified as to what Connell reported to him regarding Comito's alleged wrongdoing. 26 Comito objected, claiming that the "use of this hearsay testimony to prove the violation... would violate [Comito's] confrontation rights." 2 ' Besides the hearsay testimony, the government offered the following evidence at the hearing: stipulated testimony of a Las Vegas Police Detective that Connell had reported unauthorized bank card transactions, that no charges had been filed, and that the case remained open; a memorandum written by Connell, apparently at Officer Perdue's request, listing the dates and amounts of the transactions in question; several of Comito's 21. United States v. Comito, 177 F.3d 1166 (9th Cir. 1999). 22. Id. at 1167. 23. Id. 24. Id. 25. Id. at 1168. The court asked counsel about the circumstances surrounding Connell's absence. The Assistant United States Attorney said that the Government had been unsuccessful in its attempt to subpoena her. He alleged, based on information given to him by Comito's probation officer, that Connell was afraid that she would be harmed by an unknown associate of Comito's should she testify. Comito's counsel, on the other hand, stated that he had personally spoken to Connell as recently as half an hour prior to the hearing, during which conversation she had told him that the only reason she had made the allegations was because her romantic relationship with Comito had soured at the time, that she would not repeat the allegations at the hearing, and that her reluctance to testify was due to fear of perjury charges or other repercussions should she change her story. Moreover, Comito's counsel stressed that, to the best of his knowledge, Connell was not afraid of his client, pointing to her almost daily visits and telephone calls to Comito at the Detention Center. After hearing from counsel on this issue, the District Judge stated that his 'inclination would be to see what is said and what kind of foundation is laid, but clearly... hearsay can be considered and it would - if this were the only violation of the defendant it might be different, but this defendant, if what has been alleged is true, has a lot of problems.' Id. (footnote omitted). 26. Id. 27. Id.

CRIMINAL AND CIVIL CONFINEMENT [Vol. 34:87 unemployment compensation documents and his December 1997 bank statement; and, Officer Perdue's testimony regarding his discussion with a credit card fraud investigator about the investigator's conversations with Connell and Comito. 28 Comito testified at the hearing. He stated that he had a romantic relationship with Connell, and that each had permission to use the other's credit and ATM cards. 29 Comito claimed that other people who had used Connell's credit cards in the past may have made the alleged unauthorized transactions. 30 He also claimed that Connell told him that "she was sorry that she had made the accusations and would withdraw them." 31 Comito's counsel continued to object to the hearsay evidence in closing, "reasserting his client's constitutional right to confrontation." 32 The Court, without addressing the hearsay issue, found Comito in violation of supervised release and returned him to custody for thirty months. 33 Comito appealed. 34 The Ninth Circuit Court of Appeals reversed. Relying on Morrissey v. Brewer and its progeny, the Ninth Circuit opined that the district court did not properly analyze Comito's due process right to confront and crossexamine the alleged victim. 35 Given that reliance upon hearsay evidence without regard to the releasee's interest in confronting and challenging the information may lead to revocation and incarceration based upon unverified fact, the Ninth Circuit concluded that Morrissey requires analysis of the relative interests of the state and the releasee. 3 6 The Ninth Circuit set forth a two-prong "balancing test" that a court or parole board must use prior to revoking parole or supervised release. 37 Under the first prong, the trier of fact must consider "the significance of the releasee's interest in the right to confrontation." 3 8 Every parolee or releasee has a constitutional right to confrontation; however, that right is not absolute. 39 28. Id. at 1168-69 (footnote omitted). 29. Id. at 1169. 30. Id. 31. Id. at 1169. 32. Id. 33. Id. 34. Id. at 1169-70. 35. According to the Ninth Circuit, "the district court failed to conduct the requisite due process balancing test, or even to rule directly on the admissibility of Officer Perdue's hearsay testimony, despite the fact that at the inception of the revocation hearing the parties had accurately described the balancing test to the court." Id. at 1170. 36. Id. at 1170, 1173. 37. Id. at 1170. 38. Id. at 1171. 39. Id.

2008] CONFRONTATION AT REVOCATION HEARINGS 93 The weight to be given the right to confrontation in a particular case depends on two primary factors: the importance of the hearsay evidence to the court's ultimate finding and the nature of the facts to be proven by the hearsay evidence... [Tjhe more significant particular evidence is to a finding, the more important it is that the releasee be given an opportunity to demonstrate that the proffered evidence does not reflect 'verified fact.' 40 Further, the parolee's or releasee's interest in confronting the evidence increases as the accuracy and reliability of the proffered hearsay evidence decreases. 41 Thus, the more significant and less reliable the hearsay evidence, the greater the interest of the parolee or releasee in the right to confront and cross-examine witnesses. 42 In Comito's case, the Ninth Circuit held the district court violated his confrontation right. 43 The district court's finding that Comito violated conditions of his supervised release was based almost exclusively on the hearsay evidence. "Thus, Comito had a very strong interest in demonstrating that the hearsay testimony did not reflect 'verified fact."' 44 The first prong of the "balancing test," that is, the significance of the hearsay evidence, heavily weighed in favor of the parolee's right to confrontation. 45 "Because the hearsay evidence was important to the court's finding, and because it involved the least reliable form of hearsay, Comito's interest in asserting his right to confrontation is at its apogee. ' 46 However, this first prong does not automatically grant the releasee the right to confront and cross-examine the source of the hearsay evidence. The second prong of the Comito test requires the trier of fact to consider the "good cause" advanced by the government in failing to afford the parolee 40. Id. (citation omitted). 41. Id. 42. Id. 43. ld. at 1173. 44. Id. The Ninth Circuit further opined: Here, the hearsay testimony was, indisputably, important to the finding of the violation. Comito was charged with using Connell's credit cards and checks without her permission; he admitted to using the financial instruments, but testified that he had her authorization to do so. Thus, the contested element of the violation was whether Connell authorized Comito to use her cards and checks. The hearsay testimony consisted of the alleged victim's purported statements regarding that critical question: [sic] Officer Perdue testified as to what Connell told him regarding her consent or lack of consent to the use by Comito of her cards and checks. Id. 45. Id. at 1170. 46. Id. at 1173.

CRIMINAL AND CIVIL CONFINEMENT or releasee this right. 47 The Ninth Circuit was less clear in giving guidance on this prong of the balancing test. "Whether a particular reason is sufficient cause to outweigh the right to confrontation will depend on the strength of the reason in relation to the significance of the releasee's right. In some instances, mere inconvenience or expense may be enough; in others, much more will be 48 required. In Comito's case, the prosecutor told the district court that he could not subpoena the victim and that the victim did not wish to testify in court out of fearfulness of Comito or his associate. 49 The prosecutor failed to present proof of the alleged fear. As such, the government failed to make any showing of "good cause" for failing to produce Connell for Comito and subrogating Comito's right to confront and cross-examine this witness. 50 In its final effort to salvage the district court's ruling, the government argued that other non-hearsay evidence offered to support the violation makes the hearsay evidence reliable. However, the court rejected the argument. "Given the substantial nature of Comito's interest in confrontation and the absence of good cause for the [g]overnment's failure to produce the adverse witness, the supporting or corroborative evidence noted by the [g]overnment cannot suffice to deprive Comito of his constitutional right to confrontation." 51 The Ninth Circuit reversed and remanded the case accordingly. 52 IV. BALANCING THE INTERESTS [Vol. 34:87 In an unpublished decision of the Ninth Circuit Court of Appeals, the court further examined the methodology necessary for conducting the Comito balancing test. In United States v. Parkinson, the U.S. Probation Office charged Don Phillip Parkinson, a federal supervised releasee, with tampering with a drug urinalysis test. 53 Parkinson apparently tried to alter test results by drinking a very large quantity of water before providing a urine sample to his probation officer. 54 47. Id. at 1172. 48. Id. at 1172 (citation omitted). 49. Id. 50. Id. The Ninth Circuit did not address what would constitute "good cause" for failing to produce a fearful victim or witness. "We need not decide whether or under what circumstances a fear for one's own safety or that of a family member might justify the use of hearsay testimony in a revocation proceeding." Id. 51. Id. 52. Id. at 1173. 53. United States v. Parkinson, 172 F. App'x 744, 745 (9th Cir. 2006). 54. Id.

2008] CONFRONTATION AT REVOCATION HEARINGS 95 Richard Coleton, the probation officer who actually witnessed Parkinson provide the sample, did not appear at the hearing. 5 5 Instead, he reported the information, including the test results, to Amy Young, another probation officer, in the same office who testified at the hearing. 56 Parkinson objected on hearsay grounds, but the district court permitted Young to relay the information. 57 The government made no attempt to secure Coleton's presence at the hearing, nor did the government offer any explanation for his absence. 5 8 The district court relied on the hearsay evidence to find Parkinson in violation of the terms of his supervised release. 59 Parkinson appealed. In a split decision, the Ninth Circuit concluded that the district court erred in applying the Comito balancing test. 60 "Although Parkinson's interest in confronting the witness was weak, there is nothing to support the government's denial of that right." 6 1 In ruling that Parkinson's due process confrontation right was violated, the majority concluded that Parkinson's weak interest weighed heavily in comparison to the "government's nonexistent interest." 6 The interests of the government in presenting information with the least amount of administrative cost will regularly compete with the releasee's interest in challenging the proffered information. However, the Comito balancing test, when applied per Parkinson, ensures that governmental expediency and desire to re-incarcerate probationers and parolees with ease and efficiency will not run afoul of the need to confirm the accuracy and validity of the accusations. V. SCOPE OF THE RIGHT The Comito court clearly resolved the question of whether, and under what circumstances, a parolee or releasee has a right to confront and cross- 55. Id. 56. Id. At the revocation hearing, the government called Parkinson's probation officer, Amy Young, to testify that Parkinson's urine sample was flushed (diluted with water). One piece of objective evidence that the government used to prove that the sample was flushed was the specific gravity measurement taken at the time Parkinson submitted his sample. Id. 57. Id. 58. Id. 59. Id. 60. Id. at 746. 61. id. 62. Id.

CRIMINAL AND CIVIL CONFINEMENT [Vol. 34:87 examine a hearsay declarant at a revocation hearing. However, the scope of the right has been further refined in other appellate cases. A. Probation or Parole Officers' Administrative Records Parolees often face release revocation for so-called "technical" violations, such as failure to report to the parole office or inform it of a new address. 63 In these situations, parole or probation officers other than those who have first-hand knowledge of the violation may appear at the revocation hearing. In these situations, does the parolee have a right to confront and cross-examine the particular individual officer making the accusation, or may the court or parole board rely solely upon the documentation in the administrative file? In United States v. Walker, 64 Donald Martel Walker faced a revocation hearing to determine whether he violated a condition of his federal supervised release. 65 A key factual issue was the precise date that his supervised release began and terminated. 66 A probation officer other than the one who maintained Walker's probation file testified at the hearing. Walker objected to this substitute witness on hearsay grounds. 67 The magistrate judge overruled the objection and allowed the presentation of the hearsay evidence regarding the probation officer's administrative file. 68 Walker appealed. The Ninth Circuit unanimously affirmed the decision in a three-judge panel. 69 The magistrate judge indeed failed to conduct the requisite balancing test; however, the Ninth Circuit concluded that the error was harmless based upon the inherent reliability of the evidence. 70 The Ninth Circuit opined: Walker did not challenge the reliability of the evidence nor offer any contrary evidence. There is simply no reason to doubt the evidence regarding the date on which Walker's supervised release began. 63. See, e.g., B.J. Reyes, Isle Parole Failure Rate Forty-Three Percent, HONOLULU STAR BULLETIN, Aug. 16, 2001; Jim Herron Zamora, Parolees in Revolving Door: California Has Highest Rate of Recidivism, S.F. CHRON, Dec. 23, 2002, at A-I ("In 1980, 21 percent of those entering prison were parole violators, evenly split between technical violations and new offenses. By 2000, 69 percent of those entering in prison were parolees; 57 percent for technical parole violations and 12 percent for new felony convictions."). 64. 117 F.3d 417 (9th Cir. 1997). 65. Id. at 419. 66. Id. 67. Id. 68. Id. 69. Id. 70. Id. at 420-21.

2008] CONFRONTATION AT REVOCATION HEARINGS 97 Because of the reliability of the hearsay evidence, and the failure of Walker to show prejudice, any error in failing to apply the balancing test was harmless. 7 1 The Walker decision strongly suggests that for purposes of the right to confront and cross-examine witnesses, administrative records maintained by probation and parole officers are not subject to nearly the level of scrutiny placed on non-administrative evidence and documentation maintained by other authorities. Will this lead courts and parole boards to assume that any information contained in those files is inherently reliable, excluding it from the Comito balancing test? B. Police Reports Parole boards often base parole violations upon the written reports of police or other law enforcement officers without requiring the authors to appear in person to testify. United States v. Lizarraga1 2 called into question that practice. In Lizarraga, federal prosecutors charged Mario Alberto Lizarraga with violating the terms of his supervised release by driving under the influence of alcohol in violation of Arizona state law. 73 At his parole revocation hearing, the prosecutor presented the testimony of Lizarraga's probation officer and the police report. Lizarraga objected, claiming the probation officer's testimony and the police report were entirely hearsay. 74 Lizarraga had contacted his probation officer to tell him that he had been arrested by a Nogales, Arizona police officer for allegedly driving under the influence of alcohol. 75 The probation officer testified that Lizarraga conceded that he had been drinking, but not that he was intoxicated or otherwise driving under the influence of alcohol. 76 State criminal charges that had been brought against Lizarraga were dismissed 71. Id. at 421. 72. No. CR-01-305-TUC-FRZ (JCG), 2005 U.S. Dist. LEXIS 25612 (D. Ariz. Oct. 21, 2005). 73. Id. at *1-2. The petition alleged: On May 7, 2005, Mario Alberto Lizarraga committed the offenses of driving under the influence, driving under the influence with an alcohol concentration of 0.08 percent or more, and driving while under the extreme influence of intoxicating liquor, violations of A.R.S. 28-1381(A)(1), 28-1381(A)(2), and 28-1383(A) [misdemeanors], respectively, as evidenced by a complaint filed in Nogales (Arizona) Municipal Court Case No. TR200501421 and Nogales Police Department Arrest Report NO. 05-001958. Id. at *2. 74. Id. at *3. 75. Id. 76. Id. at *34.

CRIMINAL AND CIVIL CONFINEMENT [Vol. 34:87 due to possible problems with the calibration of the breathalyzer machine that was used to test Lizarraga for alcohol. 77 Cross-examination of the probation officer revealed that there was no direct communication with anyone at the Nogales Police Department; and therefore, the officer could not testify to the accuracy or reliability of the Breathalyzer machine. 78 According to the police report, the police stopped Lizarraga because he "ran a red light, his car veered towards the right side of the road and almost struck another vehicle, and at the time of the stop Lizarraga left the vehicle in drive, rather than putting the car in park." Moreover, the report said that "the officer smelled an odor of intoxicants coming from inside the car and that Lizarraga's breath smelled of intoxicants." 80 Nevertheless, the court allowed the government to submit the report into evidence. 8 ' Lizarraga objected, claiming that the report "constituted double hearsay, was unreliable, and deprived Lizarraga of his constitutional right of confrontation. 82 The court overruled the objection, but stated that the reliability of the admitted report "would be taken into account in consideration of the weight of the evidence." 83 On review, the federal district court balanced the relative interests of the government and Lizarraga. 84 According to the court, Lizarraga had a "strong" interest in confronting the underlying complainants because of "the importance of the hearsay evidence to the ultimate finding and the nature of the facts proved by the hearsay evidence." 85 The sole basis for concluding that Lizarra a was driving under the influence of alcohol came from the police report. 8 Further, the court concluded that the police report itself was not necessarily reliable. 87 For example, the probation officer had not spoken with the officer whose unsworn statements were contained in the report, and there was no evidence that the arresting officer had any specialized training to conduct field sobriety tests or breath tests. 88 After considering Lizarraga's interest in confronting the evidence, the court next turned to the second prong of the Comito test to determine 77. Id. at *4. 78. Id. 79. Id. at *4-5. 80. Id. at *5. 81. Id. 82. Id. 83. Id. 84. Id. at *6. 85. Id. at *7. 86. Id. 87. Id. 88. Id. at *8.

2008] CONFRONTATION AT REVOCATION HEARINGS 99 whether the government had "good cause" for abridging Lizarraga's confrontation right. 89 The government's only "cause" 90 appeared to be the inconvenience and expense of requiring the police officers to travel to court and testify at the hearing. 91 In concluding that the police report should not be considered as evidence, the court found that the government had failed to offer "any reason for denying Lizarraga his right to confrontation" in which his interest was strong. 92 C. Based in Due Process, Not the Sixth Amendment In its 2004 decision in Crawford v. Washington, 93 the U.S. Supreme Court issued a landmark ruling on the right to cross-examine and confront adverse witnesses in criminal trials. In Crawford, the defendant allegedly stabbed a man who was attempting to rape the defendant's wife. 94 During his criminal trial, the court admitted as evidence an audio tape recording of the defendant's wife, who had been barred from testifying at trial due to marital privilege, in which she stated the defendant had stabbed the victim.9 The defendant claimed that his Sixth Amendment right to confront and cross-examine adverse witnesses was violated. 96 The Supreme Court agreed with Crawford reasoning that, whether or not the hearsay evidence was deemed "trustworthy" 97 by the trial court, the Sixth Amendment's Confrontation Clause requires that an "accused shall enjoy the right... to be confronted by the witnesses against him." 98 Since Crawford was unable to cross-examine the testimony, admission was a per se violation of the Sixth Amendment. 99 89. Id. at *9. 90. Id. 91. The distance between Nogales, Arizona (the location of the arrest and the arresting officers) and Tucson, Arizona (the location of the district court where the hearing was conducted) is approximately 70 miles. See Google Maps, http://maps.google.com (search "Nogales, Arizona to Tuscon, Arizona") (last visited Oct. 31, 2007). 92. Lizarraga, 2005 U.S. Dist. 25612, at *9. 93. 541 U.S. 36 (2004). 94. Id. at 38. 95. id. at 40. 96. Id. 97. Id. at 41. 98. Id. at 42, 68. 99. Id. at 68. For a more complete discussion of the Crawford decision see, e.g., Carol A. Chase, Is Crawford a "Get Out of Jail Free" Card for Batterers and Abusers? An Argument for a Narrow Definition of "Testimonial," 84 OR. L. REv. 1093 (2005); W. Jeremy Counseller and Shannon Rickett, The Confrontation Clause After Crawford v. Washington: Smaller Mouth, Bigger Teeth, 57 BAYLOR L. REv. 1 (2005); Randolph N. Jonakait, "Witnesses" in the Confrontation Clause: Crawford v. Washington, Noah

CRIMINAL AND CIVIL CONFINEMENT [Vol. 34:87 Following the Crawford decision, parole defense practitioners sought to apply the Crawford rule to parole violation hearings. It appeared that the U.S. Supreme Court had strengthened parolees' rights to cross-examine and confront adverse witnesses that it first recognized in Morrissey. The Ninth Circuit addressed this possibility in United States v. Hall. 100 In that case, William Lewis Hall, a person on federal supervised release allegedly battered his girlfriend, Susan Hawkins, while he was intoxicated. 1 1 Hall's probation officer received a telephone message from Susan Hawkins stating that she had been beaten by Hall and wanted to file a police report. 10 2 She said that she was going to stay in a "domestic violence shelter."' 10 3 Hawkins went to a physician for treatment, reporting to the physician that her "live-in boyfriend" had caused the bruises and scratches which the physician observed on her body. 1 4 The physician reported that Hawkins "had contusions on her elbow, her chest and her back" and that the marks were "consistent with [her] complaint that she had been assaulted by her boyfriend with an open hand." 10 Hall's probation officer contacted Hall to inquire about the domestic violence allegations. 10 6 Hall minimized the event, calling Hawkins a "street person" and a "hooker[;]" however, Hall admitted to slapping her at least one time. 1 07 Hawkins then filed a police report. 10 8 Police officers responded to the shelter where they obtained her name and social security number as well as a more detailed account of the assault, including information that Hall had threatened her with a golf club. 109 Officers also took photographs of her Webster, and Compulsory Process, 79 TEMP. L. REv. 155 (2006); David A. Lowy & Katherine Bowles Dudich, After Crawford: Using the Confrontation Clause in Massachusetts Courts, 12 SUFFOLK J. TRIAL & APP. ADvoc. 1 (2007); Miguel A. Mendez, Crawford v. Washington: A Critique, 57 STAN. L. REv. 569 (2004); Robert M. Pitler, Crawford and Beyond: Exploring the Future of the Confrontation Clause in Light of Its Past, 71 BROOK. L. REv. 1 (2005); Ariana J. Torchin, Note, A Multidimensional Framework for the Analysis of Testimonial Hearsay Under Crawford v. Washington, 94 GEO. L.J. 581 (2006). 100. 419 F.3d 980 (9th Cir. 2005). 101. Id. at 982. 102. Id. 103. Id. 104. Id. 105. Id. 106. Id. 107. Id. 108. Id. at 982-83. 109. Id. at 983.

2008] CONFRONTATION AT REVOCATION HEARINGS 101 injuries.' 10 Police officers went to Hall's residence and arrested him for domestic violence. Police found the golf club in the precise location described by Hawkins." 1 Hall was arrested for violating the terms of his supervised release for the allegations of battery upon Hawkins. 112 The district court held an evidentiary hearing. Before the hearing, Hall moved for exclusion of all of Hawkins' statements under the Comito balancing test. 1 3 The court denied Hall's motion. 114 However, three days later, the Crawford decision was issued, so Hall asked the court to reconsider his motion in light of Crawford. 1 5 The court ruled that Crawford was inapplicable to release violation hearings. 116 The district court relied upon the hearsay statements presented through other witnesses; including the two police officers, the probation officer, and the attending physician who examined Hawkins, and found Hall in violation of supervised release. 117 Hall appealed. The Ninth Circuit affirmed the decision on both grounds: (1) that the Crawford decision does not apply to release revocation hearings; and (2) the Comito balancing test weighed against Hall in this case." 8 As for the Crawford decision, the Ninth Circuit held that the limited right to confrontation in post-conviction release revocation hearings announced in Morrissey is based on the Fourteenth Amendment's Due Process Clause, not the Sixth Amendment's right to confrontation. The Ninth Circuit reasoned: In Crawford, the Supreme Court addressed the Sixth Amendment rights of the accused in criminal prosecutions; it did not address the due process rights attendant to post-conviction proceedings for violations of conditions of release. We, like the two circuits that have also addressed this question, see no basis in Crawford or elsewhere to extend the Sixth Amendment right of confrontation to supervised release proceedings. 1 19 With respect to the Comito balancing test, the Ninth Circuit held that the district court properly balanced and considered the relative interests of the 110. Id. 111. Id. 112. Id. 113. Id. 114. Id. 115. Id. 116. Id. 117. Id. at 983-84. 118. Id. at 985. 119. id. at 985-86, 989 (citations omitted).

CRIMINAL AND CIVIL CONFINEMENT [Vol. 34:87 parties. 120 The nonhearsay evidence alone "was sufficient to sustain the domestic violence allegation," so the hearsay evidence of Hawkins' allegations did not impact the "ultimate finding" of the court.1 2 1 "The nonhearsay evidence at the hearing was substantial and sufficient to conclusively prove the domestic violence charge."' 122 Consequently, Hall's interest in confronting Hawkins was outweighed by the government's good cause for not producing her at the hearing. 123 VI. RESIDUUM RULE APPLIED TO VIOLATION HEARINGS Some states still apply a common law rule in administrative hearings known as the residuum rule. "Under the legal residuum rule, in administrative proceedings, while hearsay may be introduced, there must be some legally admissible evidence to support the tribunal's conclusion." 124 Otherwise, hearsay alone may not be relied upon. Carroll v. Knickerbocker Ice Co., 125 a New York State workers' compensation appeal, is the first such case which relied on the residuum rule. In Knickerbocker Ice Co., the New York Court of Appeals held that while hearsay evidence is admissible in an administrative hearing, the resulting decision cannot stand on this evidence alone. 126 In seeking benefits following a work-related accident of her husband, the court determined that the only substantial evidence before the workmen's compensation commission supported the finding that the decedent had not died from a work-related injury. 127 The only support for the "findings to the contrary rest solely on the decedent's statement made at a time when he was confessedly in a highly nervous state, which ended in his death from delirium tremens. Such hearsay testimony is no evidence."' 128 As such, the Court held the dismissal of the claim proper. 129 New York follows the residuum rule in probation 130 and parole 13 1 120. Id. at 989. 121. Id. at 986. 122. Id. 123. Id. at 986-87. 124. Gary Muldoon, To What Extent is the "Residuum of Legal Evidence" Rule Applicable in Criminal Proceedings?, 2 ISSUES IN N. Y. CRIM. L. 2 (March 2000), http://www.mcacp.org/issue 12.htm. 125. 113 N.E. 507 (N.Y. 1916). 126. Id. at 508-09. 127. Id. 128. Id. at 509. 129. See id. 130. See, e.g., People v. Machia, 467 N.Y.S.2d 708 (1983). The People do not dispute that the only evidence they introduced at the hearing

2008] CONFRONTATION AT REVOCATION HEARINGS 103 violation hearings. However, most states and the federal system do not. Although the residuum rule and the Comito rule seem similar, they are distinct. The residuum rule tests whether sufficient evidence exists beyond the hearsay testimony alone, as opposed to the Comito rule, which tests whether the parolee has a due process right to confront and cross-examine the out-of-court accusations. This right may be mitigated or otherwise eliminated if the state has good cause for failing to produce the out of court statements or if the releasee has a minor or minimal legal interest in confronting the accuser. 132 VII. CONCLUSION Federal case law has afforded at least some protection to the right of probationers, parolees, and federal supervised releasees to confront and cross-examine adverse or complaining witnesses. Federal courts have recognized that the greater the importance of the hearsay evidence to the tribunal's decision, the greater the interest the releasee has in confronting that evidence. Evidentiary rules limiting the use of hearsay evidence in criminal proceedings increase the likelihood that people will not be wrongly held accountable for certain charged conduct against them. As such, the need to have some limitation on the use of hearsay evidence alone at violation hearings is clearly evident. was hearsay, but rather argue that such evidence was admissible and, thus, sufficient to support County Court's finding of a probation violation. The People are correct in their contentions that the strict rules of evidence are not followed at a probation violation hearing and that any relevant evidence not legally privileged may be received. A finding of a probation violation, however, must be based upon a preponderance of the evidence which, requires a residuum of competent legal evidence in the record. Because the People's case rested entirely on hearsay, the record does not sufficiently support County Court's finding that defendant violated his probation. Judgment reversed, on the law, sentence of imprisonment vacated, and probation reinstated. Id. at 708-09 (citations omitted). 131. See, e.g., People ex. rel. Wilt v. Meloni, 565 N.Y.S.2d 669 (1991). It is well settled that hearsay is admissible in a parole revocation proceeding and may be the basis of a determination that parole was violated. We have held, however, that the burden of proof in a parole revocation proceeding is not satisfied unless there is a residuum of legal evidence to support a finding of guilt. Thus, except in the rare case, hearsay alone will not suffice. In recognition of that principle, we held that an uncertified report of a drug test which was not included in the record on appeal, and the reliability of which could not be determined, was insufficient to support a finding that parole was violated. Id. at 670 (citations omitted). 132. United States v. Comito, 177 F.3d 1169, 1172 (9th Cir. 1999).