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Confrontation Rights At Federal Revocation Hearings: Defendant’s Limited Confrontation And Due Process Rights


Criminal appeals lawyer,  col 32.1 (b)(2)(c), confrontation rights at revocation hearing

U.S v . Jordan

742 F.3d 276

The Court of Appeals for the Seventh Circuit

Decided on: January 28, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Attorney

When Liberty Is At Stake, The Limited Right To Confront And Cross-Examine Adverse Witnesses Should Not Be Denied Without A Strong Reason

Issue: Whether the District Court erred under the Federal Rules of Criminal Procedure Rule 32.1(b)(2)(C) which gives Defendant an opportunity to appear, present evidence, and question any adverse witness and violated Due Process when during a revocation hearing on a Defendant’s supervised release, the Court allowed a probation officer to testify about facts contained in a police report without finding that the report was reliable and then denied Defendant’s request to cross-examine the State Trooper who wrote the report.

Summary: The District Court held a revocation hearing on Defendant Jordan’s supervised release. The probation officer testified about events based on his review of a police report. Defense argued and asked the probation officer whether Trooper Wilson was available to testify. The Government objected, stating that the rules of evidence did not require him to be there.

See Also: De Novo Re-sentencing: Appealing When You Have Waived The Right To Appeal As Part Of A Plea Bargain May Subject You To De Novo Re-Sentencing ( You Can Lose Your §5K1.1 Letter)

Defendant appealed to the Seventh Circuit Court of Appeals where he argued that the District Court erred in admitting Trooper Wilson’s report without finding that it was reliable or making an interest of justice finding under Federal Rule of Criminal Procedure 32.1.(b)(2)(C). The Seventh Circuit concluded that Defendant Jordan was entitled to confront any witness during the revocation hearing, vacated the judgment of the District Court, and remanded the case for further proceedings.

Holding: The Court of Appeals for the Seventh Circuit held that the District Court erred when it admitted the State Trooper’s hearsay evidence without finding that it was reliable or making an interest of justice finding under Rule 32.1(b)(2)(C).

Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides that at a revocation hearing, the Defendant is entitled to an opportunity to appear, present evidence, and question any adverse witness unless the District Court determines that the interest of justice does not require the witness to appear.

The balancing test requires the District Court to consider not just the Government’s reasons for offering hearsay but also a Defendant’s interest in confronting adverse witnesses.

A person on parole or supervised release has a due process right, albeit a limited one, to confront and cross-examine witnesses.

Facts:  Defendant Jordan violated the condition of his supervised release and was charged with marijuana possession. The District Court held a revocation hearing to determine Defendant Jordan’s supervised release violation. A probation officer testified as to events based on his review of the police report. Defense argued and asked whether Trooper Wilson was available to testify. The Government objected, stating that the rules of evidence did not require him to be there.  The District Court found that Jordan possessed marijuana with the intent to distribute and sentenced him to 24 months in prison. The court made no finding that the police report was reliable or that good cause existed for it admission, and did not discuss Rule 32.1(b)(2)(C).

Defendant appealed to the Seventh Circuit Court of Appeals where he argued that the District Court erred in admitting Trooper Wilson’s report without finding that it was reliable or making an interest of justice finding under Federal Rule of Criminal Procedure 32.1.(b)(2)(C). The Court of Appeals vacated the judgment of the District Court, and remanded the case for further proceedings.

Legal Analysis: The Court of Appeals for the Seventh Circuit held that District Court made no finding that the police report was reliable or that good cause existed for its admission, and did not discuss Rule 32.1(b)(2)(C).

Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides that at a revocation hearing, the Defendant is entitled to 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.

The “interest of justice” requirement was added in 2002. The accompanying Advisory Committee Note stated: The court is to balance the person’s interests in the Constitutionally guaranteed right to confrontation against the Government’s good cause for denying it. All Circuits that have addressed the question now require District Courts to perform this balancing test before admitting hearsay evidence in revocation hearing. The balancing test correctly requires the District Court to consider not just the Government’s reasons for offering hearsay but also a Defendant’s interest in confronting adverse witnesses.

The Seventh Circuit held that that a person on parole or supervised release has a due process right, albeit a limited one, to confront and cross-examine adverse witnesses, Morrisey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 1972.

When liberty is at stake, the limited right to confront and cross-examine adverse witnesses should not be denied without a strong reason. Cross-examination provides an opportunity to expose a witness’s motivation for testifying, his bias, or his possible incentives to lie, United States v. Recendiz, 557 F.3d 511, 530 7th Cir.2009; Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed2d 674 1986.

The Seventh Circuit Court of Appeals held that a revocation hearing is not a trial, so the Defendant’s interests are less compelling than for someone still presumed innocent. For example, where live testimony would be difficult or burdensome to obtain, confrontation need not be face-to-face. Video conferencing could allow a distant witness to testify and face cross-examination with minimal inconvenience and expense. Where such inexpensive means of communication are available to the District Court, a remote witness should generally be expected to appear.

The Seventh Circuit held that they joined other Circuits that have ruled on the question and hold that Rule 32.1(b)(2)(C) requires a District Court in a revocation hearing explicitly to balance the Defendant’s Constitutional interest in confrontation and cross-examination against the Government’s stated reasons for denying them.

 In this case, the District Court erred when it admitted Trooper Wilson’s report without conducting the required balancing test. The Seventh Circuit held that the Government urged them to find the error harmless because the police report was reliable. The Court held that they discuss the Government’s reliability arguments in detail because they were the focus of the briefing.

However, the Court held that reliability cannot be at the beginning and end of the interest of justice analysis under Rule 32.1(b)(2)(C), and they do not mean to imply that finding the hearsay reliable would alone suffice to support its admission under the rule. In any case, the Seventh Circuit held that they were unable to conclude on appeal that the police report admitted in this case was so reliable with respect to the Defendant that the error was harmless.

The Seventh Circuit Court of Appeals also held that none of the evidence sufficiently corroborated the report’s account of the violation to allow them to determine on appeal that the evidence was so reliable as to render the District Court’s error harmless. The probation officer’s testimony was based entirely on his telephone conversations with Trooper Williams and his reading of the police report. He had no independent knowledge of the events, so his testimony merely repeated rather than corroborated the police report.

Because the Government focused on the reliability of the police report in arguing that the District Court’s error was harmless, the Court of Appeals held that they did not need to decide conclusively whether the Government had good cause to deny the Defendant to the right to confront Trooper Wilson or whether the cause outweighed Defendant’s Constitutional interest in confrontation and cross-examination. The Seventh Circuit Court of Appeals concluded that Rule 32.1(b)(2)(C) was violated and the error was not harmless. The judgment of the District Court was vacated and the case was remanded for further proceedings.


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