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Univ. of South Carolina School of Law

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Saturday, May 30, 2009

Balanced Opinion: Third Circuit Applies Balancing Test To Hearsay Admitted At Revocation Hearing

Pursuant to Federal Rule of Evidence 1101(d)(3), the Federal Rules of Evidence do not apply in revocation hearings. This does not, however, mean that hearsay evidence is per se admissible at such hearings as the Third Circuit made clear in its recent opinion in United States v. Lloyd, 2009 1459216 (3rd Cir. 2009).

In Lloyd

While on supervised release for a crime he committed in the United States Virgin Islands, [Ashbert] Lloyd pleaded guilty in Duval County, Florida to possession of a firearm by a convicted felon in violation of Florida law. After the Virgin Islands probation office was notified of Lloyd's guilty plea, the District Court summoned Lloyd to St. Thomas for a revocation hearing. 

At that hearing and over Lloyd's objection, the State introduced, inter aliaa violation report prepared by a Duval County probation officer. In preparing his report, the officer 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; however, neither the probation officer who authored the report nor any representative of the Duval County Sheriff testified at Lloyd's revocation hearing. After the hearing, the district court concluded that Lloyd had violated the terms of his supervised release.

Lloyd subsequently appealed, claiming, inter alia, that the district court erred by admitting the probation officer's report because it contained inadmissible hearsay. The Third Circuit began by noting that the Federal Rule of Evidence 1101(d)(3) indicates that the Federal Rules of Evidence do not apply in revocation hearings but found that this does not make hearsay evidence ipso facto admissible. Instead, as the Supreme Court found in Morrissey v. Brewer, 471 U.S. 471, 489 (1971), 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)."

The Third Circuit went on to note that Morrissey's requirements have been incorporated into Federal Rule of Criminal Procedure 32.1(b)(2)(C), which states that

Unless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is 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.

Moreover, the Advisory Committee's Note to that Rule

recognize[s] that the court should apply a balancing test at the hearing itself when considering the releasee's asserted right to cross-examine adverse witnesses. The court is to balance the person's interest in the constitutionally guaranteed right to confrontation against the government's good cause for denying it.

Following the lead of several other circuit courts of appeal, the Third Circuit decided to follow the language of this Note and found that 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."

Applying this test to Lloyd's case, the Third Circuit found that (1) Lloyd's aggravated domestic battery violation was supported solely by unreliable hearsay, and that (2) the State made no attempt to show cause for the declarants' absence. The court thus (properly, in my view) vacated the lower court's ruling.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/05/hearsay-sentencingus-v-lloyd----f3d------2009-wl-1459216ca3-virgin-islands2009.html

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