A recent case from the Supreme Court of North Carolina appears to have relaxed the limits on the use of hearsay at a probation violation hearing. The case also sheds light on the persistent question of whether a pending criminal charge may be considered as a violation of probation.
In State v. Murchison, the defendant was on probation with two 24–38 month suspended sentences. Less than a year into his probation, he was charged with first-degree burglary, first-degree kidnapping, and assault with a deadly weapon. His probation officer filed a probation violation report alleging that he violated the “commit no criminal offense” condition by being charged with the new crimes.
At the ensuing violation hearing, the defendant’s probation officer testified that the defendant’s mother said over the phone that the defendant had broken into her house with a knife, causing her and the defendant’s girlfriend to hide in a closet. The State also introduced a computer printout from the AOC showing that the defendant had been indicted for the burglary, with the case set for court later that week. Finally, the probation officer testified that she had “a feeling he’s going to kill somebody.” Based on that information, the trial judge found that the defendant committed the new criminal offenses and revoked. The defendant appealed.
In an unpublished opinion the court of appeals reversed, holding that the trial court erred when it revoked probation based solely on the probation officer’s hearsay testimony. The court cited to prior cases—State v. Pratt, 21 N.C. App. 538 (1974) and State v. Hewett, 270 N.C. 348 (1967)—indicating that hearsay alone is not competent evidence to support a trial judge’s finding of violation. The State petitioned for discretionary review.
The supreme court unanimously reversed the court of appeals. Beginning with the incantation that “[p]robation or suspension of sentence comes as an act of grace”—never a good sign for a probationer on appeal—the high court stressed that probation violation hearings are informal. By statute (G.S. 15A-1345(e)) formal rules of evidence do not apply, and a trial judge has broad discretion to admit any evidence relevant to revocation of the defendant’s probation. When considered alongside the probation officer’s concerns about the defendant’s dangerousness, the hearsay evidence was relevant and admissible and the revocation should have been affirmed.
I wouldn’t describe Murchison as groundbreaking, but earlier cases tended to be more restrictive regarding hearsay at violation hearings. In Pratt the court reversed a revocation based on a probationer’s improper change of address when the primary evidence showing the establishment of a new residence was hearsay—even though there was “direct evidence that on eight or ten occasions defendant was not found at the place that was supposed to be her residence.” 21 N.C. App. at 541. In Hewett, the supreme court went so far as to say that hearsay evidence should not have been considered by the revoking judge at all (although the revocation was ultimately upheld based on other competent evidence). 270 N.C. at 356. Even if the hearsay standard is lowered after Murchison, defendant-probationers should not forget their statutory and due process right to confront adverse witnesses at a violation hearing. That right, discussed here, requires the trial court to make findings of good cause if confrontation is not allowed.
Finally, to focus on the hearsay issue in Murchison feels a little like burying the lede. The only violation alleged by the probation officer and found by the trial court in Murchison was that the defendant committed new criminal offenses. The officer’s report focused exclusively on the pendency of the charges, and they clearly were still pending at the time of the violation hearing.
I have long been of the opinion that a probation court is free to consider a “new criminal offense” violation while the charge is still pending, so long as the judge makes independent findings of the alleged criminal behavior. Murchison supports that view. Nevertheless, I have often wondered if more process might be due when holding a hearing on that sort of violation than a run of the mill technical violation, on the theory that the violation hearing becomes a sort of mini-trial on the new criminal charge. Looking at the types of information considered in Murchison—a secondhand telephone conversation, a copy of an indictment, the “defendant’s demonstrated propensity for violence,” and the probation officer’s concern about the defendant’s dangerousness—it does not appear that any special rules apply.