Justice LaVecchia continued: That said, the decision in Reyes does not suggest, in its letter or spirit, that hearsay could be used, wholesale, as proof of a VOP under any set of circumstances. Any such understanding of the Reyes opinion does it injustice. Reyes allows for flexibility for the State but is ever mindful of the need for sufficient reliable evidence to prove the factual underpinnings to a charged violation. The decision emphasizes the obligation of a court to be fair and balanced to the rights of the defendant to have due process, which includes the right to be proven guilty by reliable evidence and to confront the evidence advanced against him. The decision also strives to avoid placing wasteful, unnecessary obligations on the State if it can prove its case through hearsay and other non-live evidence, including the supplementation of the record through cross-examination or additional witnesses on leave granted. Also, the use of inferences can fill evidential obligations where supported by the record, as Reyes explained.
Overall, the framework that was established in Reyes was and remains sound. In the years that have ensued since Reyes issued, appellate courts in numerous other jurisdictions have addressed the use of hearsay in VOP hearings. In their own ways, those courts have sought to offer guidance to trial courts on when hearsay may be relied upon to support a VOP charge while balancing the rights of the defendant in such a proceeding. The starting premise, however, is that hearsay generally is admissible in VOP hearings. The devil is in the detail of avoiding trenching on the defendant’s confrontation rights.
With respect to state courts that consider the question, the overwhelming majority allow the admission of hearsay so long as the hearsay is determined to be reliable. See, e.g., State v. Stotts, 695 P.2d 1110, 1119-20 (Ariz. 1985); State v. Giovanni P., 110 A.3d 442, 447-48 (Conn. App. Ct. 2015); Reyes v. State, 868 N.E.2d 438, 441-42 (Ind. 2007); State v. Graham, 30 P.3d 310, 313 (Kan. 2001); Bailey v. State, 612 A.2d 288, 292-93 (Md. 1992); State v. Guthrie, 257 P.3d 904, 914-15 (N.M. 2011). The reliability of the evidence to support the VOP charge satisfies due process concerns in such states.
This portion of the holding begs the question: what factors make hearsay reliable or unreliable. Courts generally couch reliable in terms of witness demeanor. However, with hearsay, the declarant is not present. Thus, their testimonial demeanor cannot be assessed.