Wednesday, April 6, 2016

10th Circuit to Government: No good cause? No hearsay!

It just got harder for the government to rely on hearsay at supervised-release revocation hearings. In United States v. Jones, the Tenth Circuit joined every other circuit court in holding that Rule 32.1(b)(2)(C) obligates district courts to apply the balancing test in the Rule's advisory committee notes to determine whether hearsay evidence may be considered for revocation purposes. In other words, finding simply that the hearsay is reliable is not enough. Rather, the court must weigh the defendant's interest in confrontation against the government's good cause for denying it.

In Mr. Jones's case, the government alleged that Jones had violated the conditions of his release by committing a murder. The government presented a single witness: a state homicide detective who reported an eyewitness's claim that she saw Jones shoot the victim. The eyewitness had later picked someone else out of a photo lineup while still insisting that Jones, whom she'd known long ago but hadn't seen recently, was the culprit. She then refused to testify in state court against Jones, leading to the dismissal of state charges. The district court nonetheless found the eyewitness's claim that Jones was the shooter reliable, and revoked Jones's release, sentencing him to 3 years in prison followed by 10 more years of supervised release.

The Tenth Circuit reversed. In addition to adopting the above test for relying on hearsay at a revocation hearing, the Court offered up a nice lesson in confrontation. Holding that Jones had a "strong interest" in confronting the witness, the Court listed the following "textbook bases for cross-examination" present here:
First, testing Ms. Palmore's ability to perceive—her distance from the parking lot, her angle of vision, any obstructions to her view, the quality of the lighting, and whether she had been drinking at Slick Willie’s.
Second, exploring possible bias—whether her long-term acquaintance with Mr. Jones might have affected her statements to Inspector Benavides.
Third, examining whether Ms. Palmore's prior conviction might affect her credibility.
Fourth, asking why Ms. Palmore refused to cooperate in the state prosecution of Mr. Jones, a matter on which the parties and the court could only posit educated guesses without her testimony.
Fifth, elaborating on Ms. Palmore's misidentification of Mr. Jones in the photo lineup. Despite corroborating evidence that placed Mr. Jones in the parking lot at the time of the shooting, Ms. Palmore pointed to someone else when asked to identify the shooter.
Finally on the defendant's side of the scale, the Court offered a nice string of citations to emphasize "the generally recognized concerns with eyewitness testimony."

For its part, the government made little showing of good cause, having neither asked the witness to attend the revocation hearing nor issued her a subpoena. In this case, it was easy for the Court to conclude that the balance weighed in favor of the defendant.

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