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May 27, 2009

Intriguing Third Circuit case on considering hearsay in supervised release revocation

The Third Circuit has an intriguing little procedural ruling today in US v. Lloyd, No. 08-2513 (3d Cir. May 27, 2009) (available here).  Here are the basics of the ruling and a few of the doctrinal highlights:

At issue in this appeal is hearsay evidence presented during Appellant Ashbert Lloyd’s supervised release revocation hearing....

The question presented is whether Lloyd’s sentence was based on improper hearsay evidence. Since the Federal Rules of Evidence do not apply in revocation hearings, see FED. R. EVID. 1101(d)(3), hearsay that would be inadmissible at a criminal trial may support a judge’s decision to revoke supervised release.  This does not mean, however, that hearsay evidence is ipso facto admissible. Due process requires that supervised releasees retain at least a limited right to confront adverse witnesses in a revocation hearing.  See Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972).

In Morrissey, the Supreme Court held that a parolee’s liberty cannot be revoked without due process and the minimum requirements of a revocation proceeding include “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” 408 U.S. at 489.  This limited right to confrontation stems from the Fifth Amendment’s Due Process Clause, not from the Confrontation Clause of the Sixth Amendment. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)....

In sum, because Lloyd’s aggravated domestic battery violation was supported solely by unreliable hearsay and the Government makes no attempt to show cause for the declarants’ absence, we will vacate Lloyd’s sentence and remand for resentencing.

May 27, 2009 at 03:58 PM | Permalink

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Comments

The "trustworthy" phrase takes us to the specific examination of the evidence and scrutiny of the declarant called for in Ohio v. Roberts. That case, according to Crawford v. Washington, is still law in non testimonial non Confrontation Clause settings. Many declarants of an original statement and many persons articulating the original declarant' statement will be untrustworthy in a probation revocation setting. Jilted girlfriend calls in to say that Mr. Roberts did not come home last night and thus broke the terms of house arrest after nine pm.

This is an important case.

I would suggest that if Justice Scalia was reviewing a Morrissey case today that the Confrontation Clause would get thrown into the mix. Liberty emanates from the Due Process Clause and the deprivation is achieved by a witness. The guy in the dock is still an "accused". He may be a convicted "accused" but now as a convict he is accused of some act which will take his liberty away.

Posted by: mpb | May 28, 2009 12:21:53 PM

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