Use of Hearsay at Violation of Probation Hearings (Part 3)

The Court continued: In addition to examining for reliability, a number of states also require a specific showing of good cause by the prosecution to explain the failure to call a witness and instead offer hearsay evidence. See State v. Marrapese, 409 A.2d 544, 548-49 (R.I. 1979) (construing State v. DeRoche, 389 A.2d 1229 (R.I. 1978)); State v. Brown, 600 S.E.2d 561, 564-65 (W. Va. 2004). In such circumstances, the explanation can be incorporated into the examination for reliability when determining the sufficiency of the evidence to sustain the VOP charge.

In the federal sphere, a form of balancing test is utilized for determining the admission of hearsay evidence in VOP proceedings. In the seminal case of United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986), the Eighth Circuit established a balancing test for reconciling a probationer’s confrontation rights under Morrissey with the government’s reasons for not providing an opportunity for confrontation:

As is true of any balancing test, it is not possible to articulate fixed rules on what the government must show to establish “good cause” in every case. However, there are several factors which should be evaluated in examining the basis cited by the government for dispensing with confrontation.

First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical. For example, the government might contend that live testimony would pose a danger of physical harm to a government informant, see Birzon v. King, 469 F.2d 1241, 1244 (2d Cir. 1972), or, as suggested by Gagnon, that procuring live witnesses would be difficult or expensive.

This balancing test would naturally weigh against the State in most cases where the violation is based on matters within the probation officer’s knowledge as opposed to a new criminal offense within a police officer’s knowledge. Most probation departments in New Jersey are located within a short distance of the superior courthouse or within the courthouse itself. Thus, the burden in producing the live witness with firsthand knowledge would be very light.