Justice LaVecchia continued: A second factor that must be considered, and one that has been focused upon by a number of courts, is the reliability of the evidence which the government offers in place of live testimony. See, e.g., United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978); United States v. McCallum, 677 F.2d 1024, 1026-27 (4th Cir. [1982]). Thus, where the government demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable, it has made a strong showing of good cause. Where, on the other hand, the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the probationer is entitled to confrontation.
Following Bell‘s lead, other federal courts began adopting a balancing-test approach. United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000); United States v. Walker, 117 F.3d 417, 420 (9th Cir. 1997); United States v. Grandlund, 71 F.3d 507, 510 (5th Cir. 1995); United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994).
Of particular note is the Ninth Circuit’s enunciation of the proper balancing in Walker. Walker instructs trial courts to consider several factors when balancing interests in connection with the use of hearsay at a VOP hearing: (1) “the importance of the evidence to the court’s finding”; (2) “the probationer’s opportunity to refute the evidence”; (3) “the consequences for the probationer of the court’s finding”; (4) “the ‘difficulty and expense of procuring witnesses'”; and (5) “the ‘traditional indicia of reliability borne by the evidence.'” 117 F.3d at 420 (quoting United States v. Martin, 984 F.2d 308, 312 (9th Cir. 1993)). We add that Federal Rule of Criminal Procedure 32.1(b)(2)(C) was amended in 2002 to impose a balancing of interests. Under the rule as currently constructed, a federal defendant facing a revocation of probation “is entitled to,” among other things, “an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” That 2002 amendment incorporated the balancing approach that circuit courts had begun to follow. See generally United States v. Jones, 818 F.3d 1091, 1098-1100 (10th Cir. 2016) (discussing development of law and significance of Rule amendment). Presently all circuit courts of appeals but the Sixth Circuit have expressly adopted a balancing-test approach.
It is unclear how courts are to weigh “the importance of the hearsay evidence.” On the one hand, prosecutors will argue that it should be admitted because it is so important. On the other hand, the defense would argue that the evidence is too important to be insulated from cross-examination. Reference to the federal rules and courts is a disturbing trend for those of us who have admired New Jersey’s proud history of providing citizens greater rights than the bear minimums required by the federal constitution.
