A new case from the Supreme Court of North Carolina gives us a chance to revisit the issue of a defendant’s confrontation rights at a probation violation hearing.
In State v. Jones, 2022-NCSC-103, ___ N.C. ___ (Aug. 19, 2022), a defendant on felony probation was alleged to have violated probation in several ways—absconding, some technical violations, and committing new criminal offenses. The new criminal offense violations stemmed from new firearm charges that had previously resulted in a mistrial, but were nonetheless raised as a violation of probation. At the probation violation hearing, the State sought to admit the transcript of a suppression hearing from the earlier criminal trial, which included testimony from the arresting officer. The officer was prepared to testify again at the violation hearing, but was never actually called to do so. The judge presiding over the revocation hearing admitted the transcript and ultimately determined—based on the transcript and other evidence—that the defendant committed a criminal offense and revoked his probation.
On appeal to the Court of Appeals, the defendant argued that the admission of the trial transcript at the probation revocation hearing deprived him of his right to confront the arresting officer. Under G.S. 15A-1345(e), the defendant contended, the trial court could only allow the officer’s testimony in without confrontation based on a finding of good cause. The Court of Appeals affirmed the revocation, concluding that no good cause finding was required when the defendant did not actually seek to confront and cross-examine the officer at the revocation hearing.
In the Supreme Court, the defendant once again argued that admission of the officer’s testimony via the transcript violated his confrontation rights. It was immediately clear in the high court’s analysis that it was not going to extend the robust Sixth Amendment confrontation right applicable at a trial under Crawford v. Washington, 541 U.S. 36 (2004), to a probation violation hearing. Slip op. at ¶ 12 (“The Sixth Amendment, which guarantees [certain protections] to the accused in all criminal prosecutions, does not apply to hearings on probation violations.” (quoting State v. Braswell, 283 N.C. 332 (1973)). Instead, the Court reaffirmed the rule that the confrontation rights applicable at a probation violation hearing are rooted in the Due Process Clause, not the Sixth Amendment. Id. ¶ 14. That constitutional framework is built into G.S. 15A-1345(e), which says that defendants “may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation”—an exception that obviously would not apply at trial.
But in Jones, the Court affirmed the Court of Appeals’ decision that the defendant did not assert his confrontation rights when he objected to the admission of the suppression hearing transcript at the revocation hearing. Instead, that objection was premised on the fact that the State was attempting to prove new criminal offense violations that hadn’t resulted in a conviction. The Court viewed G.S. 15A-1345(e) as a “conditional statutory mandate,” requiring a trial judge to make findings of good cause for not allowing confrontation only when the defendant specifically attempts to initiate that confrontation. Where, as in Jones, the defendant never actually attempted to call the officer to testify, confrontation was not requested, at thus no findings were required. The Court distinguished State v. Coltrane, 307 N.C. 511 (1983), where the defendant was interrupted and revoked so quickly that she didn’t even have an opportunity to ask to confront any witnesses.
With Jones being resolved as it was, my advice about confrontation at probation revocation hearings remains pretty similar to what I wrote over a decade ago in the post available here. For probationers and their lawyers, if you want to confront an adverse witness, be sure to bring it up at the violation hearing. Don’t raise it for the first time on appeal. Probation officers, if you are asked to testify based on a violation report prepared by another officer, be prepared to explain why the officer who prepared the report is unavailable. That information may be important if the defendant insists on confrontation and the judge is called upon to evaluate whether there is good cause to proceed without it. Judges, we still don’t have much guidance on what amounts to a “good cause” for not allowing confrontation. At a minimum, you should evaluate the reason for the witness’s absence and the type of information at issue. Some violations, such as a positive drug screens or new criminal convictions, may be proved just as well through documentary evidence, see, e.g., United States v. Carrion, 457 Fed. Appx. 405 (5th Cir. 2012) (sufficient evidence of good cause to deny cross-examination of expert witness whose credentials and experience were listed in transcript of prior testimony), whereas others, such as failing to report to the officer in a “reasonable manner,” would seem more likely to require live, first-hand testimony.