Confrontation at Probation Violation Hearings

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Under G.S. 15A-1345(e), a probationer is entitled at a probation violation hearing to “confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” What does that statute mean by confrontation?

The statute’s language comes directly from a 1973 case called Gagnon v. Scarpelli, 411 U.S. 778 (1973), in which the Supreme Court of the United States set out what process is due at a probation violation hearing. The Court held that before probation is revoked, a probationer is entitled to, among other things, “the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 786. As you can see, the statute practically quotes the Court.

The law’s reference to confrontation may call to mind the Sixth Amendment’s Confrontation Clause, which Jessie Smith has written so much about on this blog and elsewhere (her flagship bulletin, Jessica Smith, Understanding the New Confrontation Clause Analysis: Crawford, Davis, and Melendez Diaz (Apr. 2010), is available here). The Confrontation Clause provides that “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” If you’ve learned anything from Jessie you know that the Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), excludes a lot of evidence that might otherwise be admissible under the rules of evidence and older confrontation case law.

But that’s Sixth Amendment confrontation. Read the amendment carefully and you’ll see that it applies to “criminal prosecutions”—and North Carolina’s courts have long held that a “proceeding to revoke probation is not a criminal prosecution.” State v. Duncan, 270 N.C. 241 (1967). The supreme court put it to an even finer point in State v. Braswell, 283 N.C. 332, 337 (1973): at a probation hearing, the “Sixth Amendment rights of th[e] defendant are not involved.”

The confrontation right discussed in Gagnon is not a Sixth Amendment right, but instead a matter of due process under the Fourteenth Amendment. Due process confrontation is more flexible than its Sixth Amendment cousin. It’s not, as the Court called the Sixth Amendment in Crawford, a procedural “guarantee.” Rather, it’s rooted in notions of “fairness,” and the court may deny confrontation if it has a sufficiently “good cause”—something that would not be true if Crawford controlled. The Supreme Court even noted in Gagnon that “[w]hile in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not . . . intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.”

But due process confrontation is not so flexible as to be meaningless. In State v. Coltrane, 307 N.C. 511 (1983), the Supreme Court of North Carolina reversed a probation revocation when the trial court did not allow the probationer to confront her probation officer. At the hearing the district attorney simply relayed to the court that the probation officer told the DA that the probationer had failed to get a job. The probation officer wasn’t present at the hearing, and the conversation between the probationer and the judge went like this:

Probationer: “I’m expecting a call about a job at—”

The Court: “Do you have a job now?”

Probationer: “No, sir.”

The Court: “Let the sentence be put into effect. She’s in custody.” Id. at 515.

The court of appeals upheld the revocation, but the supreme court reversed on grounds that the defendant “was allowed to confront neither the prosecuting attorney who claimed that the probation officer had told him that the defendant had not procured employment nor the probation officer herself.” Further, the high court concluded, “No findings were made that there was good cause for not allowing confrontation.” Id. at 515–16. In short, the Coltrane court concluded that G.S. 15A-1345(e) means what it says.

In a more recent case, State v. Terry, 149 N.C. App. 434 (2002), a probationer complained on appeal of her revocation that she didn’t get an opportunity to cross-examine someone (one of her professors, who did not appear at the hearing) who provided damaging information about her to her probation officer. The court of appeals affirmed the revocation, noting that the defendant never subpoenaed the professor or otherwise asked to confront him. (That line of reasoning would be improper in the Sixth Amendment context. The Supreme Court has said that “the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009).) The Terry court added that any error by the trial court was harmless to the extent that the professor’s statements merely confirmed information provided through other sources.

Terry never cites to Coltrane so it’s hard to know precisely how the cases fit together when thinking about how confrontation at probation hearings plays out in practice. I won’t let that stop me from concluding with a few practical thoughts.

For probation officers: I am told you are sometimes asked to testify based on a violation report prepared by another officer. When that happens, it seems the testifying officer should be prepared to explain why the officer who prepared the report is unavailable. That’s not to say, however, that I think the State needs to make the same showing of a “good faith effort to obtain the witness” that it would be required to make for Sixth Amendment purposes. Cf. Smith, supra, at 26.

For judges: We don’t have much guidance on what amounts to a “good cause” for not allowing confrontation. It strikes me that (at a minimum) you’d need to consider both the reason for the witness’s absence and the type of information at issue. Some violations, such as a positive drug screens or a new criminal convictions, may be proved just as well through documentary evidence, whereas others, such as failing to report to the officer in a “reasonable manner,” would seem more likely to require live, first-hand testimony.

And finally for probationers, it seems the best advice on this front may be that 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. See, e.g., Duncan, 270 N.C. at 246 (“[N]owhere in the record does it appear that the defendant asked to cross-examine any witnesses for the State, and particularly the State Probation Officer . . . , and was refused.”).

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