Last week, the North Carolina Court of Appeals reversed a defendant’s conviction under G.S. 90-95(d1)(1)(c), which makes it unlawful to “[p]ossess a pseudoephedrine product if [a] person has a prior conviction for the possession or manufacture of methamphetamine.” The court ruled that the defendant’s “due process rights under the United States Constitution were violated by his conviction of a strict liability offense criminalizing otherwise innocuous and lawful behavior without providing him notice that a previously lawful act had been transformed into a felony for the subset of convicted felons to which he belonged.” In other words, the defendant’s apparent ignorance of the law excused his violation of it. Continue reading
Tag Archives: due process
In its seminal opinion establishing the State’s right to withdraw blood from a DWI suspect over his objection and without a warrant when there are exigent circumstances, the United States Supreme Court left a significant question unanswered. The court in Schmerber v. California, 384 U.S. 747 (1966), noted that the petitioner “is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. . . . We need not decide whether such wishes would have to be respected.” Id. at 771.
So how have courts in the ensuing four decades answered this question? Must an impaired driving suspect be offered the least intrusive type of chemical test available or a choice about the type of testing when he or she has a sincere objection to a particular test?
[Editor’s note: This post was originally published on the SOG’s civil law blog, On the Civil Side. Nonetheless, given its coverage of Confrontation Clause issues arising from a criminal case, we thought that it would be of interest to many of our readers.]
Last month the U.S. Supreme Court decided Ohio v. Clark, 135 S.Ct. 2173 (2015). The Court determined whether a teacher’s testimony of a child’s statements to her was barred by the Confrontation Clause. My colleague, Jessica Smith, wrote a blog post about the holding and its impact in criminal cases. But, what about the world of child protective services? Continue reading →
Suppose Defendant is charged with sex offense against a child. He knows that DSS previously investigated similar allegations made by the child against other people and heard that DSS found those charges to be unfounded. When Defendant subpoenas the records from DSS, the agency moves to quash. Is Defendant entitled to the records? The answer is: Sort of. On these facts, Defendant has a right to have the court do an in camera review of the records. If the court finds that they contain favorable, material evidence, it has to be turned over to the defendant. This post outlines the relevant law, which stems from a U.S. Supreme Court case called Pennsylvania v. Ritchie, 480 U.S. 39 (1987). Continue reading →
Entering a sentence is more than a mere recitation of months and years and dollars. A judge has wide latitude to consider all sorts of information at sentencing, and then to make comments about that information when pronouncing judgment. As the Fourth Circuit put it in a leading case, “[t]o a considerable extent a sentencing judge is the embodiment of public condemnation and social outrage.” United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991). It is entirely appropriate for a judge to speak to defendants—even to lecture them—“as a lesson to that defendant and as a deterrent to others.” Id.
But some topics are off limits. A recent North Carolina case explored the propriety of a religious comment at sentencing. In State v. Earls, a jury found the defendant guilty of multiple sex crimes, including indecent liberties, rape, and incest. At sentencing, the judge said:
I think children are a gift of God and I think God expects when he gives us these gifts that we will treat them as more precious than gold, that we will keep them safe from harm the best as we’re able and nurture them and the child holds a special place in this world. In the 19th chapter of Matthew Jesus tells his disciples, suffer the little children, to come unto me, forbid them not: for such is the kingdom of heaven. . . . I’m going to enter a judgment in just a moment. But some day you’re going to stand before another judge far greater than me and you’re going to have to answer to him why you violated his law and I hope you’re ready when that day comes.
The judge consolidated the defendant’s seven convictions into two judgments, one sentenced as low as possible and the other sentenced at the top of the presumptive range. The defendant argued that the judge violated his right to due process by quoting the Bible at sentencing.
The court of appeals disagreed, concluding that while the trial judge “should not have referenced the Bible or divine judgment in sentencing,” religious references violate due process only when the impermissibly expressed views become the basis of the sentence. In light of the facts of the case and the defendant’s consolidated and non-aggravated sentences, the appellate court held that any error was non-prejudicial, and the sentence was affirmed.
Still, the Earls court gave a final reminder that trial judges should take care to avoid using language that could create an appearance of impropriety. That is undoubtedly good advice, because the issue of religious references at sentencing turns out to be a complicated one. I suppose that’s not surprising when you consider that many faith traditions have a view of justice that aligns with our own statutory purposes of sentencing. (Retribution, for example, is often described as “an eye for an eye.”) There is no per se rule against religious references, but some common stumbling blocks (did you know that phrase has religious origins?) emerge in the case law discussing the issue.
Commenting on religion when the case itself involves religion. There is no exception to the rule against religious comments when the crime itself involves religion. In United States v. Bakker, 925 F.2d 728 (4th Cir. 1991), evangelist Jim Bakker was convicted of various fraud crimes related to his television ministry and associated property deals. At sentencing, the trial judge commented that “those of us who do have a religion are ridiculed as being saps from money-grubbing preachers and priests.” The appellate court remanded for resentencing, to avoid any perception of the bench as a “pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.” Id. at 740.
By contrast, the same court found no error in Deyton v. Keller, 682 F.3d 340 (4th Cir. 2012). In that case, co-defendants robbed a church congregation at gunpoint, stealing over $2,500 worth of valuables, including the weekly offertory. At sentencing the judge commented on the heinousness of the crime, saying “I mean if there’s one place in the whole world that you ought to have the right to feel . . . some degree of safety it would be in a church,” and “You took the Lord’s money and [to] those of us that believe that there is an Almighty . . . [that] is just outrageous . . . .” Id. at 342. The court rejected the habeas petitioners’ argument that the judge’s comments “reflected an impermissible religious bias that infected the sentencing procedure,” Id. at 343, noting that houses of worship demand a “special tranquility” regardless of the faith being observed.
Noting defendant’s lack of fidelity to a religious faith. A judge should avoid any comment indicating that a defendant is not a “good” practitioner of his or her faith. In Torres v. State, 124 So. 3d 439 (Fla. Dist. Ct. App. 2013), a defendant was convicted of sexual battery against a victim with whom he had prior consensual extramarital sex. The judge erred at sentencing when he said “Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people—that’s not the way anybody with morals should do anything.” Id. at 440–41. Despite the trial judge’s broader statement about morality, the appellate court reversed, concluding that “[n]o one should be punished, or conversely shown leniency, merely because he or she may be a member of a particular religion.”
Using religious references to make a non-religious point. Mere reference to a religious figure or story is not likely to be deemed error if the reference is intended to make a non-religious point. In Jones v. Donnelly, 487 F. Supp. 2d 403 (S.D.N.Y. 2007), a federal district judge concluded that a state trial court did not err when it referenced the Biblical story of Cain and Abel to make the point that a defendant’s actions could have broader implications. Similarly, the Tenth Circuit held in United States v. Traxler, 477 F.3d 1243 (10th Cir. 2007), that a district judge did not err when he said at sentencing that “good things can come from jail. A guy named Paul was put in jail a couple thousand years ago and wrote a bunch of letters from jail . . . and people are still reading those letters and being encouraged by them and finding hope in them thousands of years later.” The judge’s reference to the Apostle Paul were properly used to illustrate that good things can come out of a bad situation.
The Seventh Circuit just ruled that the $30 booking fee charged to each arrestee in an Illinois town is constitutional. Markadonatos v. Village of Woodridge, __ F.3d __, 2014 WL 60452 (7th Cir. Jan. 8, 2014). I had never heard of booking fees and decided to learn a bit more about them, including where they are in effect and what courts have said about them.
Booking fees generally. Booking fees are in use in Illinois, Colorado, Washington State, Michigan, Minnesota, Ohio, Indiana, and California, at least. 36% of the jails that responded to this DOJ survey imposed booking fees. The fees work differently in different jurisdictions. The amount of the fee ranges from $12 to $100 or more. In almost all jurisdictions, the fee is refunded if the arrestee is acquitted or charges are dropped, though the procedure for seeking a refund varies. In some cases, arrestees who are mentally ill or indigent are exempt from booking fees.
Legal controversy over booking fees. Booking fees are often challenged in court, frequently due process grounds. Case outcomes have been mixed. See, e.g., Roehl v. City of Naperville, 857 F.Supp.2d 707 (N.D. Ill. 2012) (denying motion to dismiss constitutional challenge to booking fee); Hohsfield v. Polhemus, 2012 WL 603089 (D. N.J. Feb. 23, 2012) (unpublished) (analyzing booking fee along with daily jail fee and upholding both); Berry v. Lucas County, 2010 WL 480981 (N.D. Ohio Feb. 4, 2010) (unpublished) (upholding $100 booking fee that was to be refunded upon acquittal or applied to “pay-for-stay” obligations upon conviction); Gonzalez v. City of Fife, 2008 WL 2482010 (W.D. Wash. June 17, 2008) (unpublished) (denying city’s motion for summary judgment and questioning whether booking fee deprived arrestees of due process); Allen v. Leis, 213 F.Supp.2d 819 (S.D. Ohio 2002) (nonrefundable booking fee violated due process).
The Seventh Circuit Case. As noted above, the Seventh Circuit recently waded into the fray. The village of Woodridge is a suburb of Chicago. It has an ordinance that requires each arrestee to pay a $30 booking fee. Unlike many other jurisdictions that impose a fee, Woodridge provides no procedure for contesting or refunding the fee, even if the arrestee is subsequently acquitted.
Plaintiff Jerry Markadonatos was arrested for retail theft. He expressly admitted that there was a basis for his arrest as part of his entry into a deferred prosecution agreement. He completed the deferral and ultimately received an adjudication of “not guilty.” He did not receive a refund of the booking fee, and sued the village in federal court under 42 U.S.C. § 1983, alleging that the imposition of the fee without any means to contest it violated due process.
The federal district court dismissed his claim, and a divided panel of the Seventh Circuit affirmed. The majority rejected his procedural due process claim because (1) the booking fee is modest, (2) the fee is used to “offset at least a portion of the administrative costs associated with processing [an] arrest,” and (3) providing a hearing about the propriety of imposing such a small fee would be unreasonably burdensome for the village. The court also suggested that a person who was unlawfully arrested could ask a judge to refund the fee or could pursue other “state remedies,” though it acknowledged that this “opportunit[y]” is not “formally provided for in the [ordinance].” Furthermore, the court rejected the plaintiff’s substantive due process claim, finding that there is nothing that “shocks the conscience” about charging a modest amount to a person who was properly arrested, and ruling that Mr. Markadonatos lacked standing to make a claim on behalf of wrongly arrested people.
Judge Hamilton argued in dissent that the ordinance is unconstitutional on its face because it is “in substance a criminal fine” that is “imposed regardless of the validity of the arrest and regardless of whether there is any criminal prosecution or what its outcome might be.”
Booking fees in North Carolina? I’m not aware of any jurisdictions in North Carolina that charge booking fees. If you are, please post a comment or send me an email. There is, of course, a daily cost-of-confinement fee, which Jamie discussed here. In case any jurisdictions are considering booking fees, it is worth noting that a nonrefundable fee like Woodridge’s might not pass muster under State v. Webb, 358 N.C. 92 (2004) (invalidating nonrefundable appointment-of-counsel fee for indigent defendants). As noted above, even refundable fees are often challenged in court, and it seems to be an open question whether they generate enough revenue to offset the cost of administering them, though their prevalence may suggest that they do.
Northwestern University law professor Eugene Kontorovich believes that that bestiality is constitutionally protected private sexual activity, and thinks that a recent federal court ruling supports his claim. This post examines the issue briefly.
North Carolina law. Bestiality is illegal under G.S. 14-177, which makes it a Class I felony to “commit the crime against nature, with mankind or beast.” See State v. O’Keefe, 263 N.C. 53 (1964) (“In this jurisdiction crime against nature embraces . . . bestiality as [that offense was] known and defined at common law.”). A couple of months ago, a bestiality case arising in Raeford, North Carolina, attracted national attention.
Other states’ laws. I haven’t researched the question myself, but Professor Kontorovich asserts that “[m]ost states criminalize zoophilia.”
The constitutional argument. Professor Kontorovich argues that “[t]he 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy. Constitutional doctrine regards private sexual choices as vastly more important than other kinds of choices, and thus presumptively protected. . . . Bestiality is private sexual conduct and thus prima facie requires a very good justification to regulate.” He doesn’t think that animal welfare is such a reason, at least not categorically, noting that “many European countries make zoophilia legal, but punishable under existing animal welfare laws when cruelty can be shown.” Professor Kontorovich isn’t totally alone in his thinking. In Lawrence v. Texas, 539 U.S. 558 (2003), Justice Scalia argued that state laws against bestiality – among other types of sexual conduct – might be difficult to sustain in light of the Court’s protection of sexual behavior. And a paper posted recently on SSRN by a visiting fellow at Cornell Law School argues that “the standard justifications [for prohibiting bestiality] break down” upon closer inspection.
The recent case. The case that Professor Kontorovich thinks lends some support to his argument is Brown v. Buhman, a federal district court decision from Utah. CNN has the story here. It’s a civil case in which the plaintiffs are the stars of the Sister Wives television show. They sued the county attorney, challenging the constitutionality of Utah’s anti-polygamy law. The judge granted a portion of their motion for summary judgment, ruling that the part of the law that prohibits a married person from “cohabiting” with another person is a violation of the Free Exercise Clause and the Due Process Clause of the Constitution.
Application to bestiality. As far as I know, there’s no religious aspect to bestiality, so the free exercise ruling isn’t relevant. As to due process, the court stated that “[c]onsensual sexual privacy is the touchstone of rational basis review in this case,” and it found no rational basis for criminalizing the conduct in question. Professor Kontorovich takes the ruling and runs with it: “Bestiality bans are . . . less constitutionally defensible than polygamy bans because the purported harms associated with the practice are lower. It does not undermine families because it is not a substitute for traditional unions . . . . Nor does it oppress women, the empirical claim behind bans on polygamy.”
My take. Whatever the merits of the Brown decision, there’s a good chance that it won’t stand. Professor Kontorovich himself thinks it is likely to be overturned on appeal, and the Utah courts have rejected similar arguments, suggesting the possibility of Supreme Court review if the court of appeals were to affirm. Furthermore, even if the courts were to recognize a right to polygamy or polyamory, that strikes me as a long way from recognizing a right to bestiality, which is both a deeper taboo and an area where there can be no meaningful consent. So I don’t think we’re anywhere near seeing legal recognition for bestiality. In fact, I’m not aware of a single decision in which such a right has been held to exist.
Or, Seeking Dismissal Based on the State’s Destruction of Evidence
Unpublished court of appeals opinions occasionally assume the cache of bootleg recordings of live performances of the Grateful Dead. If you’ve got your hands on a good one, the real value is in sharing it with an appreciative audience. One such opinion making the rounds of late is State v. Absher, 2010 WL 3860501 (N.C. Ct. App. October 5, 2010). Absher affirmed the trial court’s dismissal with prejudice of charges against the defendant arising from an altercation with the Wilkes County Sheriff’s Department in which the defendant suffered a fractured skull and a serious brain injury. The trial court dismissed the charges after determining that notwithstanding numerous requests from the defendant’s attorney for a videotape of the defendant in the intake center at the time of the altercation, the sheriff’s department modified the video, preserving only certain images, and destroyed the original. The court of appeals agreed with the trial court that the state’s destruction of the videotape was a flagrant violation of the defendant’s constitutional rights that irreparably prejudiced his defense; thus, there was no remedy but to dismiss the prosecution. The appellate court relied upon State v. Williams, 362 N.C. 628 (2008), and rejected the premise that that Arizona v. Youngblood, 488 U.S. 51 (1988), controlled. In Youngblood, the United States Supreme Court held that the police’s failure to preserve potentially useful evidence constitutes a due process violation only if the defendant can show bad faith on the part of the police. Absher viewed Youngblood as applicable to “potentially useful” evidence, as distinguished from the “material exculpatory evidence” destroyed in Absher’s case. Thus, the court reasoned, there was no requirement that the defendant in Absher show bad faith on the part of the State.
What application might Absher have more broadly? Suppose a defendant charged with impaired driving requests to view the patrol car’s videotape of the traffic stop leading to defendant’s arrest. Sometime after this request but before trial, the videotape is inadvertently destroyed by the police. Is the defendant entitled to dismissal of the charges based on these facts alone? I don’t think so. First, I think Youngblood controls and there is no due process violation absent bad faith. Second, even if North Carolina courts require no showing of bad faith where the destroyed evidence is material and exculpatory versus merely “potentially useful,” I doubt the videotape of the traffic stop would, absent some additional showing, qualify as exculpatory. Finally, the absence of the videotape arguably does not irreparably prejudice the defense of the case as the defendant has other means of proving his innocence, including cross-examining the officer.
Let’s turn to the published cases for a more full explanation.
The United States Supreme Court first considered in California v. Trombetta, 467 U.S. 479 (1984), whether the Due Process Clause of the Fourteenth Amendment required the State to preserve potentially exculpatory evidence on behalf of defendants. The question in Trombetta was whether due process required law enforcement agencies to preserve breath samples of drivers suspected of driving while impaired in order for the results of a breath-analysis to be admitted into evidence. Trombetta ultimately concluded that the State’s destruction of breath samples did not run afoul of due process as any constitutional duty to preserve evidence was limited to evidence that had “an exculpatory value that was apparent before the evidence was destroyed, and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489. As the “chances [we]re extremely low that preserved samples would have been exculpatory” and defendants had alternative means of demonstrating their innocence, among them the right to cross-examine the law enforcement officer who administered the test, the court concluded that the evidence did not meet the standard of constitutional materiality. Id.
The court refined its analysis in Arizona v. Youngblood, 488 U.S. 51 (1988), a case in which the defendant sought reversal of his conviction on child molestation charges on the basis that the police’s failure to refrigerate the victim’s clothing and test semen samples shortly after they were collected deprived him of evidence that might have exonerated him. Recognizing that the Due Process Clause, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), makes the good or bad faith of the State irrelevant when the State fails to disclose material exculpatory evidence, the court held that the clause “requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57. Youngblood held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.” Id. at 58.
Over the ensuing decades, North Carolina’s appellate courts applied Youngblood in numerous contexts, finding no constitutional violation arising from the failure to preserve potentially exculpatory evidence where the defendant failed to demonstrate bad faith. See, e.g., State v. Hunt, 345 N.C. 720 (1997) (police’s failure in murder investigation to preserve items seized at defendant’s home did not violate due process where exculpatory value of evidence was speculative and nothing suggested police willfully destroyed evidence); State v. Mlo, 335 N.C. 353 (1994) (release of impounded vehicle without district attorney’s approval in violation of G.S. 15-11 did not warrant dismissal of murder charges where exculpatory value of comparing vehicle’s tires to tracks at the location where the body was discovered was speculative and there was no bad faith on part of police); State v. Thorne, 173 N.C. App. 393 (2005) (holding that defendant’s concession that videotape of bank robbery that led to his identification as a suspect was not lost or destroyed in bad faith obviates any due process claim); State v. Burnette, 158 N.C. App. 716 (2003) (intentional destruction of plastic bag containing drugs did not require dismissal of drug charges since “[w]ithout a showing of bad faith, the failure to preserve potentially exculpatory evidence does not constitute a denial of due process”); State v. Banks, 125 N.C. App. 681 (1997) (while police department’s destruction of the rape kit obtained from the victim “violated the rules concerning the safekeeping of potential evidence,” it did not violate the defendant’s due process rights as there was no reason to conclude the police believed the rape kit had any exculpatory value at the time it was destroyed).
Beginning with State v. Taylor, 362 N.C. 514 (2008), however, the North Carolina courts’ analysis underwent a subtle, yet significant, change. Taylor distinguished the State’s failure to preserve exculpatory evidence, a violation it considered appropriately analyzed pursuant to Brady, from the State’s failure to preserve potentially useful evidence, which was analyzed pursuant to Youngblood and required concomitant proof of bad faith. Taylor characterized this distinction as grounded in Youngblood. I disagree. Youngblood set the standard for determining when failure to preserve evidence amounts to a violation of due process (which it only does in cases involving bad faith), while Brady and progeny set the standard for determining when the State’s failure to disclose evidence violates due process. Youngblood’s adoption of a “potentially useful” standard merely recognizes the difficulties associated with “divining the import of materials whose contents are unknown and, very often, disputed.” Trombetta, supra. The standard does not, in my view, apply only to the failure to preserve potentially useful evidence. It also applies to the destruction of material exculpatory evidence.
The state supreme court applied this new standard in State v. Williams, 362 N.C. 628 (2008), a case decided the same day as Taylor. Williams affirmed the trial court’s dismissal of an assault charge based upon the State’s destruction of a poster displayed in the district attorney’s office. The poster, created by an assistant district attorney, featured two mug shots of the defendant, the first with the caption “Before he sued the D.A.’s office,” and the second picture, depicting the defendant with injuries, captioned “After he sued the D.A.’s office.” Williams made no mention of Youngblood, instead analyzing the case pursuant to Brady and holding that “the State’s destruction of material, favorable evidence to defendant, and its admission that the evidence could not be produced, warrant the conclusion that any trial commenced against defendant would not comport with our notions of due process,” thus amounting to a flagrant violation of the defendant’s constitutional rights. Id. at 639.
Williams obviously is a rare case in that the contents of the posters were known and not subject to any significant dispute. Most defendants seeking relief based on the destruction of evidence likely will be able to prove no more than its potential usefulness; thus requiring a demonstration of bad faith. And though both Williams and Absher depart from traditional Youngblood analysis, it isn’t hard to imagine the court finding bad faith in either case. So I suspect Absher’s cache will be as short-lived as those bootleg tapes in the era of YouTube.
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.”).