Use of Hearsay at Violation of Probation Hearings (Part 1)

by | May 21, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

lady justiceOn March 6, 2018, Justice LaVecchia wrote for a unanimous New Jersey Supreme Court in the Middlesex County case of State v. Noah Mosley. The principal issue before the Court was whether under 2C:45-3, a defendant’s rights were violated when the sole basis for revoking his probation was a police officer’s hearsay testimony describing another officer’s observations of defendant. In relevant part, the Court held as follows:

Defendant presently claims his due process rights under the Federal and State Constitutions were violated by the State’s use of hearsay in his VOP hearing. U.S. Const. amend. XIV; N.J. Const. art. I, ¶ 1. As a broad statement of rights, it is incorrect that the use of hearsay in VOP proceedings is a per se violation of defendant’s due process rights. To the extent this Court has not expressly stated that principle, we do so now.

Under Gagnon, federal due process rights permit flexibility in the use of substitutes for live testimony in probation violation hearings. 411 U.S. at 782 n.5. And, as the Reyes panel concluded in 1986, state constitutional due process requirements had not been more strictly construed in the VOP setting. Nor have they since. Indeed, the New Jersey Rules of Evidence, updated since Reyes was decided, are not applicable to VOP hearings.

Our evidence rules define hearsay as “an out of court statement offered for the truth of the matter asserted.” This definition is sometimes misinterpreted to mean that so long as a statement is said in court and under oath it is not hearsay. This is incorrect. The “out of court” statement referenced in the hearsay definition refers to the statement that was originally made out-of-court and then relayed in court by a different live witness. The rationale for prohibiting such a statement is that the defense is left unable to confront and cross-examine the original author of the statement.