Justice LaVecchia continued: Several state jurisdictions now follow a balancing approach akin to the one initially expressed in Bell or as otherwise updated. See State v. Wibbens, 243 P.3d 790, 792-93 (Or. Ct. App. 2010) (applying balancing test adopted by Ninth Circuit); State v. Beck, 619 N.W.2d 247, 250-52 (S.D. 2000); State v. Austin, 685 A.2d 1076, 1081 (Vt. 1996).
Although we adhere to the use of hearsay at VOP hearings, we endorse a balancing approach that includes assessment of the reasons for the government’s proceeding through the use of hearsay in addition to testing the evidence’s reliability. Merely because the rules of evidence are inapplicable to VOP hearings does not control whether due process would be violated by the court’s acceptance and reliance on unreliable evidence to sustain a VOP charge. The evidence to support the VOP charge must be reliable to meet due process concerns, and the reason for relying on hearsay informs the decision on the evidence’s overall reliability. The court’s decision as to when to admit hearsay evidence should “represent a fair balance of the probationer’s rights with the interest of the public.”
We conclude that the Walker factors provide a helpful refinement of the guidance already existing in New Jersey from the Reyes decision. See id. at 138 (noting that right to confrontation is “one element among several to be considered and weighed by the hearing body”). The Walker factors that we adopt to guide trial courts bear repeating: (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 Martin, 984 F.2d at 312). Each factor can assist the trial court in analyzing the reliability of the hearsay being offered by the State and the fairness of its use. And, in the context of what is or is not being contested by the defendant, the court should explain its reasons for determining that the hearsay evidence is reliable for its stated purposes.
In theory, this is a helpful case to the defense. As noted by the Court, it had been customary for attorneys and courts to just rely on the evidence rule that allowed for hearsay to be admitted at violation of probation hearings. It is important to remember that court rules, evidence rules and statutes cannot override constitutional rights. Factor (2) “the probationer’s opportunity to refute the evidence” appears to present an anomaly in that it will tend to be cases without a good defense wherein the probationer’s only opportunity to refute the evidence would be cross-examination. Thus, the cases requiring live testimony will often be the ones with the strongest evidence against probationers. On the other hand, the State’s witnesses will be insulated from cross-examination in the cases in which their allegations are unfounded and ripe for cross-examination.
