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That Cross-Exam Doodad? It Applies to Revocation Hearings Too!

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By William Peacock, Esq. on March 27, 2013 8:53 AM

The right to confront adverse witnesses? "I don't think that applies here, Your Honor."

Ricky Lee Johnson was on supervised release after serving a 15-month sentence for conspiracy to possess stolen mail. Unfortunately for him, he was later arrested for second-degree forgery and theft of property. He also failed a drug test and skipped out on rehab.

It should've been a simple revocation hearing, but alas, the government's attorney failed to subpoena any witnesses or produce evidence, other than a police report. Instead, with the court's permission, the probation officer read the police report. The defense attorney objected:

"Your Honor, we would--if they don't have any witnesses--and I understand this is a revocation proceeding, but the Constitution still applies. He's got a right to confront and cross-examine the witnesses against him. And if [the probation officer] is--all he's going to do is produce a police report, then Mr. Johnson's constitutional right is being violated."

The court overruled the objection, but preserved it for appeal, stating, "the rules of evidence ... are relaxed in a revocation hearing because it's not the same thing as being charged with the underlying offense." The defense attorney renewed her objection before sentencing, citing Crawford, but it was to no avail.

Guess what? She was right.

Rule 32.1(b)(2)(C) provides that in revocation hearings, the defendant should have "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."

The government argued harmless error, as on remand, they would simply subpoena witnesses to corroborate the police report. The court dismissed that argument, stating that the testimony of the officers wouldn't be known until they actually testified and were cross-examined. It also hinted at the case's future fate on remand. (Hint: it's grim.)

The government argued that the issue wasn't properly raised in the lower court. How so? Didn't the defense attorney object multiple times, and the judge assure her that the argument was preserved for appeal?

The government's argument was that because the defense attorney cited Crawford instead of Rule 32.1 during one of her many reiterations of the objection, it was not a correct, specific objection. Using common sense, the court pointed out the text of the initial objection, which merely referred to the right to cross-examine.

Of course, in a revocation hearing, rather than a full trial, the right to cross-examine isn't absolute. Per Bell, the right to confront must be balanced against the reasons preferred for why live testimony would be undesirable or impractical.

Here, there was no reason. The government forgot to subpoena witnesses. That's it. Obviously, that fails the balancing test.

So what happens on remand? "[W]e conclude that the Government had a full and fair opportunity to present its evidence and that we should follow the traditional path of limiting the Government to one bite at the apple." That means no police report and no additional witnesses. Only the existing record will be available on remand.

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