Thursday, June 25, 2015

Be There, or Get Reversed

State v. Eldert, 2015 VT 87

By Elizabeth Kruska

Here’s the short version: SCOV reverses a probation violation because the trial court admitted inadmissible hearsay, and based the findings on that hearsay.

Here’s the longer version.

Stephen Eldert was convicted of some Vermont charges in 2004. He received a suspended sentence with probation. His probation had a condition saying he could not purchase, possess, or consume alcohol while on probation. This is a pretty common condition. And probably much to the delight of SCOV, this probation case doesn’t involve an argument about conditions.


Mr. Eldert wanted to transfer his probation supervision to Delaware. Vermont transferred the probation supervision to Delaware using the Interstate Compact Offender Tracking System (ICOTS), and Mr. Eldert was supervised there. The Vermont case is always a Vermont case, but the interstate system allows a person to transfer his or her supervision from Vermont to another state so they can live somewhere else. Vermont gets periodic updates from the other state’s probation officer on how the person is doing through the ICOTS system. As you’ll see, this becomes the big issue in this particular case.

Mr. Eldert picked up new charges in Delaware, leading to a hearing on a violation of Delaware probation (it isn’t totally clear if he had an independent Delaware probation sentence or if this was connected to the Vermont sentence). Delaware said they didn’t want to supervise him for Vermont anymore, so he’d have to leave and finish his probation time in Vermont. A receiving state can choose not to supervise someone, and if there’s violation behavior that can be enough for the state to send someone back.

When Mr. Eldert’s sentence on his Delaware charges was finished, Vermont went to get Mr. Eldert to bring him back here. Vermont also filed a probation violation in his case, alleging he violated the condition saying he couldn’t have alcohol. In support of the violation filing, the Vermont Probation Officer (VTPO) relied on some reports that came through the ICOTS system saying that on a couple of occasions Mr. Eldert admitted he drank alcohol.

The probation merits hearing rolls around and the State’s Attorney and Defense Attorney speak to the judge before the actual hearing starts. The State asked the judge if the court preferred to have “direct testimony from a Delawarean” since the alleged alcohol violation took place in Delaware. The defense objected to a continuance because they were ready to go. The opinion doesn’t say this, but I’m guessing that Mr. Eldert was in jail during this time, which would have contributed to objecting to the continuance. The court didn’t rule on whether or not the State needed to bring a Delawarean, and the hearing proceeded.

The only person who testified was the VTPO. The State admitted the ICOTS report saying that Mr. Eldert admitted drinking in Delaware. The Defense objected, but the court admitted the testimony anyway. Ultimately, the court found that the State proved its case and revoked Mr. Eldert’s probation.

Mr. Eldert appealed and SCOV reverses.

Probation violation hearings are a hybrid of civil and criminal together. The State just has to prove by a preponderance of the evidence that the probationer violated his or her conditions of probation. Some hearsay is admissible. But, because a probation violation could end up with a probationer getting sentenced to jail, the probationer has a liberty interest. Because of the liberty interest, the probationer is entitled to live testimony and confrontation, as guaranteed by the Due Process Clause through the Fourteenth Amendment.

So, this creates kind of a weird tension. Some hearsay is admissible, but a probationer is entitled to confrontation. That means that the court actually has to take live testimony. How to square this?

The answer is that hearsay is admissible in probation violation hearings only if it shows “sufficient indicia of reliability” and if the State can show good cause for not offering live testimony to get the evidence before the court. There isn’t a fixed rule for what kinds of hearsay do or do not meet this test. The court has to balance the defendant’s confrontation right against the State’s proffered argument in favor of admitting the hearsay.

Luckily, there have been some cases in the last several years that give the court some guidance about what hearsay could be admitted or not. For example, if there’s a hearsay statement that can be corroborated by other non-hearsay evidence, it tends to be more reliable. If the hearsay is an objective fact, as opposed to a conclusory statement, it tends to be reliable. For example, if the proffered hearsay is “the probationer had a urine test that was positive for drugs” that’s a fact as opposed to, “the probationer failed treatment,” which is a conclusory statement. The court also looks at whether there are sufficient details to the hearsay, whether the hearsay is offered to prove a central issue in the case, and whether the hearsay comes from a person who might have an adversarial relationship with the probationer.

Courts have found that a police report would be unreliable hearsay because the police officer and person have an adversarial relationship. On the other hand, a toxicology report from an independent laboratory is probably admissible, because it simply reports facts from a scientific test.

At the merits hearing, Mr. Eldert objected to the admission of the ICOTS reports. The trial judge admitted them, finding that they were reliable because the VTPO received them through the ICOTS reporting system. Also, they were used in court in Delaware, and the DPO, as an officer of the court, could not submit information he or she knew was false. The court also found that a probation officer doesn’t have the same adversarial relationship with a probationer that a police officer has with a suspect.

Here, SCOV completely disagrees and finds that the ICOTS documents were almost all the kinds of unreliable. They were unsigned and incomplete. Although they reported that Mr. Eldert admitted drinking alcohol, they didn’t say anything about when he allegedly did the drinking, to whom he made the admission, or the circumstances of the admission. The VTPO testified that she talked to a Delaware PO (DPO), but that person didn’t have firsthand knowledge of the report, and wasn’t even the person who supervised Mr. Eldert when he did live in Delaware. Finally, the ICOTS documents didn’t contain hearsay that went to a tangential issue, they went to the very central issue of whether or not Mr. Eldert was drinking in violation of his probation.

SCOV finds first that the evidence was unreliable. Then SCOV goes on to look at whether the State had good cause not to bring a live witness. The court is supposed to balance both of these factors against the probationer’s confrontation interests. There are times when it wouldn’t work out to bring a live witness; there could be danger to the witness for testifying. It could involve a lot of travel to bring a live witness. I am recalling a case of mine where the investigating officer left his job as a police officer to become a firefighter in Antarctica. I think that sounds like a cool job (literally and figuratively). It also turned out to be far too burdensome for the State to bring him back to be a witness in my case. Antarctica is geographically inconvenient at best.

Delaware is a lot closer. I’ve been to Delaware. I know without traffic you can get there in about 6 hours. There might even be an airplane or a train that goes between there and here if driving is a pain.

At the hearing, the State’s Attorney said “obviously Delaware has no particular interest in coming to Vermont.” This appears to have been based on pretty much nothing. Justice Eaton called it “woefully insufficient.” That’s why he’s a Supreme Court justice and I’m a blogger. Well, that and he has way more experience. Anyway, there was no evidence proffered to show what efforts, if any, the State made to locate and secure the right witness. The State also didn’t show that there would be any danger to the witness to come and testify in person.

SCOV also then considers Rule 32.1, which governs probation violation proceedings. It says that a probationer “shall be given… the opportunity to question opposing witnesses.” SCOV reads in a “good cause” exception. The Vermont rule is patterned after the same Federal rule and federal courts pretty consistently recognize a good cause exception. SCOV’s rationale is that if every witness had to testify live, it would end up being way too burdensome on the state. However, if a witness isn’t present, the trial court has to engage in the balancing test to determine if hearsay from that witness could be admissible.

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