Federal Evidence Review

In a supervised release revocation hearing, the Third Circuit notes a circuit split regarding the admission of hearsay evidence without a showing of cause for the declarant's absence at the revocation hearing; Third circuit agrees with other circuits that hearsay is not per se admissible in a revocation proceeding and that, under due process standards, “a releasee may have a legitimate interest in confrontation and cross-examination even when a declarant's out-of-court statement bears some indicia of reliability,” in United States v. Lloyd, 566 F.3d 341 (3d Cir. May 27, 2009) (No. 08-2513)

The Federal Rules of Evidence do not apply to revocation proceedings. See FRE 1101(d)(3). So what standards govern the admissibility of evidence, including hearsay statements under FRE 802? Hearsay evidence may be received only to the extent it is consistent with the constitutional requirements of due process. In a recent case, the Third Circuit in United States v. Lloyd succinctly assessed the current state of hearsay admissibility in revocation proceedings.

In the case, defendant Lloyd was on supervised release from a conviction in the Virgin Islands but while in Florida pled guilty to possession of a firearm by a convicted felon under Florida law. Upon notification of the conviction, the probation office in the Virgin Islands began revocation proceedings. At the proceedings, the prosecution was allowed to admit, over the defendant’s objection, a violation report from Duval County, Florida. According to the circuit:

The violation report relied on information provided by an officer of the Duval County Sheriff, who described a physical altercation between Lloyd and his pregnant girlfriend during which Lloyd brandished a gun at a passerby. Neither the probation officer who authored the report nor any representative of the Duval County Sheriff testified at Lloyd's revocation hearing.

Lloyd, 566 F.3d at 342-43. The district court revoked the defendant’s supervised release.

On appeal, based in part on the hearsay evidence, the Third Circuit concluded that the defendant’s aggravated domestic battery violation was “supported solely by unreliable hearsay and the Government makes no attempt to show cause for the declarants' absence.” The circuit vacated the sentence and remanded for resentencing. Lloyd, 566 F.3d at 346.

Acknowledging the inapplicability of the FRE to supervised release proceedings, the circuit noted that admission of hearsay was governed by Fed. R. Crim. P. 32.1(b). Because the trial court “made no attempt to conduct the analysis required by the criminal rule, the admissibility of the hearsay would be governed by Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972) (Parolee's liberty cannot be revoked without due process under the Fifth Amendment 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).”). The requirements of Morrissey were “incorporated” into criminal rule 32.1(b) (revokee entitled to “an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.”). In applying this standard, the Third Circuit noted that:

Most of our sister circuit courts of appeals have interpreted Morrissey and Rule 32.1(b) to require a balancing test … which consider[s] both the reliability of proffered hearsay and the cause why a witness is not produced.

Lloyd, 566 F.3d at 344.

The circuit pointed to the following circuits in support of this conclusion:

• First Circuit: United States v. Taveras, 380 F.3d 532, 537 (1st Cir. 2004) (unreliable hearsay inadmissible under Rule 32.1(b)(2)(C))
• Second Circuit: United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006) (no abuse of discretion in admission of hearsay after balancing reliability and cause)
• Fifth Circuit: Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir. 1999) (district court must balance reliability and cause)
• Eighth Circuit: United States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004) (hearsay admissible because reliable and cause shown for declarant's absence)
• Ninth Circuit: United States v. Comito, 177 F.3d 1166, 1171-72 (9th Cir. 1999) (hearsay inadmissible because unreliable and Government failed to prove the cause asserted for declarant's absence)
• Eleventh Circuit: United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994) (district court erred in failing to establish both reliability and cause)

In opposition to this standard, three other circuits “allow sufficiently reliable hearsay evidence without a showing of cause for the declarant's absence.” Lloyd, 566 F.3d at 344 (emphasis added) The dissenting circuits include:

• Seventh Circuit: United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006) (no need to show cause for absence to admit substantially trustworthy hearsay; a finding of “substantial trustworthiness” is the equivalent of a good cause finding for the admission of hearsay in the revocation context)
• Tenth Circuit: Kell v. United States Parole Comm'n, 26 F.3d 1016, 1020 (10th Cir.1994) (suggesting that sufficiently reliable hearsay may be admissible without a showing of cause)
• D.C. Circuit: Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir. 2003) (hearsay admissible because reliable, no cause analysis)

In light of this division in the circuits, the Third Circuit joined the first group that rejected a finding that hearsay could be per se admissible in a revocation proceeding:

We now hold that a district court ‘should apply a balancing test [in revocation hearings] when considering the releasee's asserted right to cross-examine adverse witnesses,’ and that ‘[t]he court is to balance the person's interest in the constitutionally guaranteed right to confrontation against the government's good cause for denying it.’ FED. R. CRIM. PROC. 32.1(b)(2)(C) advisory committee's note. The reliability of proffered hearsay is a principal factor, although not the sole factor, relevant to the releasee's interest in confrontation. To outweigh this interest, the Government must, in the typical case, provide good cause for a hearsay declarant's absence. As the language of the Advisory Committee Notes indicates, the releasee's interest in confrontation-which encompasses reliability-is an independent factor that should be analyzed separately from cause.

In some cases, the releasee's interest in confrontation may be overwhelmed by the hearsay's reliability such that the Government need not show cause for a declarant's absence. Accordingly, we reject a per se rule that a district court's failure to explicitly address cause amounts to reversible error in all cases. Nevertheless, a releasee may have a legitimate interest in confrontation and cross-examination even when a declarant's out-of-court statement bears some indicia of reliability, and district courts should normally address both factors when ruling on the admissibility of hearsay evidence in a revocation hearing.

Lloyd, 566 F.3d at 345.