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California: Probation Revocation Based Upon Hearsay Evidence Was Error

by John E. Dannenberg

The California Court of Appeal reversed a prisoner's revocation of probation that had rested upon hearsay evidence at his revocation hearing. The court held that where there had been no impediment to having gained actual witness testimony, reliance upon hearsay violated the prisoner's Fourteenth Amendment due process rights.

Scott Shepherd was on probation in 2005 for a felony count of drug possession and a misdemeanor count of drug paraphernalia possession, with a prior prison term for drug possession. His probation conditions included taking a drug program and remaining free of substance abuse. However, he tested positive twice for alcohol in the months thereafter, for which his probation was continued. But on his third violation, where he denied any alcohol consumption, he was taken to a probation violation hearing, found guilty and had his probation revoked. He appealed the probation violation hearing because the sole evidence against him was an objected-to hearsay statement from a social worker at the treatment center he was attending.

The Superior Court rejected Shepherd's protestations, and not only sentenced him to two years in prison, but doubled his prior $200 restitution fine and added a $400 parole revocation fine. Shepherd appealed both on the issue of illegal use of hearsay and on improper increase of his fines.

The appellate court focused on the fact that Shepherd had never been tested for alcohol, but rather, that his revocation rested solely upon the testimony of his Probation Officer (PO). The PO, in turn, had stated at the revocation hearing that he was reporting his conversation with the social worker. But the crucial evidence regarding Shepherd's "smelling of alcohol" was attributed to the social worker's statements, as repeated by the PO. The court could not even determine if the social worker had personal knowledge, or was in turn only repeating someone else's observation. This, the court observed, was at least hearsay, if not double hearsay.

In reviewing the law on such revocations, the court found that hearsay was too low a standard to meet due process protections. While the evidentiary burden was only the ordinary preponderance standard (i.e., 510), it could not be met with hearsay unless the proponent of the evidence could show "good cause" (e.g., unreasonable expense, unavailability, fear of confrontation) why the witnesses could not be produced. The court noted that a key piece of evidence in such a hearing was the demeanor of the witness, which the revocation officer must consider. If the witness is not brought forth, and the prisoner is at the peril of the cold hearsay record, his Fourteenth Amendment rights are thereby violated. The court relied upon U.S. v. Inadi (1986) 475 U.S. 387, 394-5 and People v. Arreola (1994) 7 Ca1.4th 1144, 1158-59.

Finally, the court reversed the increase in Shepherd's fines. Because the original restitution fine remained in effect after the revocation, the trial court lacked authority to impose an additional fine. As to the parole revocation fine, it was limited to imposition of an amount equal to the original, not to a doubling of that amount, as the court had errantly calculated. See: People v. Shepherd, 151 Cal.App.4th 1193 (2007).

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Related legal case

People v. Shepherd