The Court continued:
Applying those considerations to the case at hand, we conclude that the State deprived defendant of an important due process confrontation right at the VOP hearing. The State charged defendant with violating probation by committing another criminal offense. While normally that type of VOP charge is demonstrated through the submission of proof of a criminal conviction, the State here opted to proceed first with the VOP charge. It was incumbent on the State then to prove the new criminal charge. In violation hearings, the circumstances control the admission and consideration of offered evidence.
Defendant’s ability to defend against the new criminal charges, which were the premise for the VOP charge, was undermined because the State deprived defendant of the opportunity to confront and cross-examine Zundel, or anyone else, who saw the events transpire. Defendant was prevented from questioning the key observer — Zundel — on what he could or could not see, or see well, on the day of the events in the parking lot. In some situations, there is no adequate alternative to live testimony.” The State instead proceeded with Carullo’s hearsay testimony about what Zundel reported he observed on the day of the events in the parking lot instead of producing Zundel himself. A police report by Zundel, prepared in the context of an investigation and recounting subjective events in a narrative form, is not a document that fits into any exception to the hearsay rule. The hearsay evidence that the court accepted from Carullo was not reliable to prove the underlying new criminal charges that were the basis for defendant’s VOP charge. The consequences of the court’s determination to treat the evidence as reliable in this context were substantial for defendant.
The Court did not address what the State likely argued regarding violations of probation based on new offenses. Namely, a violation of probation need only be proved by a preponderance of the evidence as opposed to proof beyond a reasonable doubt. A preponderance of the evidence is proof that represents something only slightly greater than probable cause. If the new criminal charge were indicted, i.e. a grand jury found probable cause, the State would have strong proof of probable cause for the new offense and thus would be left with the logical requirement that they only produce some evidence in addition to the indictment. Thus, the State could argue that live testimony would be superfluous in cases of violations of probation based on new indicted charges.
