District/Municipal Courts Rules for Probation Violation Proceedings  Rule 7: Hearsay evidence

Hearsay evidence shall be admissible at probation violation hearings. 

The court may rely on hearsay as evidence of a probation violation only if the court finds in writing that the hearsay is substantially reliable. In determining if hearsay evidence is substantially reliable, the court may consider, among any other relevant factors, whether that evidence 

(1) is based on personal knowledge and/or direct observation, rather than on other hearsay; 

(2) involves observations recorded close in time to the events in question; 

(3) is factually detailed, rather than generalized and conclusory; 

(4) is internally consistent;

(5) is corroborated by any evidence provided by the probationer; 

(6) was provided by a disinterested witness; or 

(7) was provided under circumstances that support the veracity of the source (e.g., was provided under the pains and penalties of perjury or subject to criminal penalties for providing false information).

(2015)

Section (a) is the same as the 2000 District Court Rule 6(a). It provides that hearsay evidence "shall be admissible" in Boston Municipal Court and District Court probation violation hearings. In Commonwealth v. Durling, 407 Mass. 108, 114 (1990), the Supreme Judicial Court stated that only "reliable" hearsay is admissible in these proceedings. The rule does not impose reliability as a formal precondition to admission, but rather requires that, in effect, hearsay evidence be admitted de bene. This avoids the potential bifurcation of each proceeding into a preliminary "suppression" hearing followed, if necessary, by a separate hearing on the factual issue of the alleged violation. Instead, the court commences the violation hearing and receives all proffered evidence, including hearsay. As set forth in section (b), any hearsay challenged as, and found by the court to be, unreliable may not be used as evidence of a violation. Moreover, if the court finds hearsay to be reliable it must provide written reasons. After resolving any issue of hearsay reliability, the court then rules on the alleged violation based on any competent evidence. Thus, the rule provides appropriate procedural clarity and simplicity while ensuring compliance with the constitutionally-based limitation on the use of hearsay in these proceedings, as set forth in Durling. 

Nothing in these Rules precludes the judge from allowing a continuance to give either party an opportunity to summons witnesses if the judge deems it necessary to resolve facts in dispute. 

Section (b) has been amended to conform to case law decided after the rule was initially promulgated. That case law has made it clear that there is a "one-pronged" test for determining whether hearsay evidence is legally sufficient as proof of a violation. Specifically, such evidence must be found by the court, in writing, to be "substantially reliable." Commonwealth v. Maggio, 414 Mass. 193 (1993); see also Commonwealth v. Negron, 441 Mass. 685 (2004). 

The previous version of this rule imposed a two-pronged test, namely, for evidence to be legally adequate as a basis for finding a probation violation the rule required that it be both "substantially reliable," and, when the alleged violation was new criminal behavior, there had to be "good cause" for the absence of the percipient witness, i.e., the source of the hearsay. Current case law holds that where the hearsay is substantially reliable, this satisfies the good cause requirement. This paragraph and the previous paragraph of this Commentary were cited with approval by the Supreme Judicial Court. in Commonwealth v. Bukin, 467 Mass. 516, 522 n.10 (2014). 

The new rule also makes it clear that the single "substantial reliability" test applies regardless of whether the alleged violation consists of a new criminal charge. 

Section (b) and its caption require that hearsay be found by the court to be "substantially reliable" before it can serve as evidence of a violation, even when the court also has relied on non-hearsay evidence. The previous rule imposed the substantial reliability test only when hearsay was the only evidence relied upon by the court. In doing so it followed case law, Commonwealth v. Durling, 407 Mass. 108 (1990). Under the rule as amended, the court need not attempt to distinguish between hearsay that is "reliable" (and thus may be used if other, non-hearsay evidence is also relied upon by the court), and hearsay that is "substantially reliable" (and thus may be used when it is the only evidence of a violation). See Commonwealth v. Durling, 407 Mass. 108, 117-19 (1990). 

Finally, section (b) lists the seven indicia set forth in case law that the court may consider in determining whether the "substantial reliability" test has been met. 

It should be noted that, even if the court finds that hearsay is "substantially reliable" and thus may be used as evidence of an alleged violation, this is not conclusive on the issue whether a violation has occurred. The court's finding on an alleged violation must be based on whether, based on all the competent evidence submitted by both parties, the violation has been proved by a preponderance of that evidence.

(2000 Commentary to Former Rule 6)

Probation violation hearings often involve evidence in the form of records, documents and statements that constitute hearsay, that is, "an extrajudicial statement offered to prove the truth of the matter asserted." Commonwealth v. Keizer, 377 Mass 264, 269 n.4, 385 N.E.2d 1001, 1004 (1979). Common examples of hearsay evidence used at these hearings are police reports used as evidence of the probationer's criminal behavior, and correspondence from programs such as batterers' treatment programs used as evidence of the probationer's failure to complete the program in compliance with the probation order.

This rule is based almost exclusively on the opinion in Commonwealth v. Durling, 407 Mass. 108, 551 N.E.2d 1193 (1990), the leading case on the use of hearsay evidence at probation violation hearings. It is divided into separate sections, one on the admissibility of hearsay, the other on the sufficiency of hearsay as a matter of law when it is the only evidence presented against the probationer.

Admissibility

Section (a) states simply that hearsay is admissible at probation violation hearings. The Supreme Judicial Court "has always allowed the use of hearsay at probation revocation hearings." Commonwealth v. Durling, supra, at 114, 551 N.E.2d at 1197. The admissibility of hearsay is based on the principles set forth in Morrissey and Gagnon. The revocation process "should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604 (1972). Similarly, the Supreme Court has sanctioned the "use where appropriate of the conventional substitutes for live testimony including affidavits, depositions and documentary evidence." Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5, 93 S. Ct. 1756, 1760 n.5 (1973).

It has been held that if hearsay evidence qualifies under any of the legal exceptions to the hearsay rule (e.g., business record, excited utterance, dying declaration) it is presumptively reliable. Durling, supra, at 118, 551 N.E.2d at 1198. However, in keeping with the informal nature of these hearings and the fact that the case against the probationer is the responsibility of a probation officer rather than a trained criminal prosecutor, it would appear that the court should make a determination of the reliability of any hearsay, rather than engage in an argument on whether the hearsay qualifies as an exception to the hearsay rule so as to merit presumptively reliable status. In other words, if the court determines that a record of a drug treatment center is reliable, it is irrelevant as to whether it qualifies as a "business record." An example of hearsay that might be found unreliable, and thus not worthy of the court's consideration, would be a second- or third-hand out-of-court statement, or a statement that is vague or internally contradictory or inconsistent.

Sufficiency

Section (b) of the rule addresses an issue quite different from admissibility, namely, the legal sufficiency of hearsay evidence where hearsay is the only evidence of the probationer's alleged violation. In such cases, the probationer has no opportunity to confront a witness with personal knowledge and test the reliability of that evidence by cross-examination. This deprivation of the right to confrontation of witnesses implicates due process considerations. However, the Supreme Court in Durling made clear that since a probationer's liberty interest is conditional, so too is the probationer's right to confront witnesses, and that right can be denied for "good cause."

The court's description of "good cause," in Durling is somewhat unclear. On the one hand, the court indicates that "good cause" for denying the probationer the right to confront witnesses "has thus far been defined in terms of difficulty and expense of procuring witnesses in combination with 'demonstrably reliable' or 'clearly reliable' evidence." Durling, supra, at 120, 551 N.E.2d at 1200 (emphasis added).

In fact, the court defines the question in Durling in terms of this two-pronged issue:

"The judge in this case relied solely on hearsay in revoking the defendant's probation. The judge did not make any express determination that there was good cause for denying the defendant the right to confront a witness with personal knowledge. Nor did the judge make any determination whether the proffered hearsay was reliable."

Durling, supra, at 115, 551 N.E.2d at 1197.

However, in contrast to this two-pronged definition, the Durling court also defines "good cause" solely in terms of the reliability of the hearsay evidence:

"In our view, a showing that the proffered evidence bears substantial indicia of reliability and is substantially trustworthy is a showing of good cause obviating the need for confrontation."

Durling, supra, at 118, 551 N.E.2d at 1199.

Despite this apparent conflict, the opinion appears to settle on the two-pronged definition of good cause:

"On the whole, the resolution of the confrontation issue depends on the totality of the circumstances in each case... If the Commonwealth has "good cause" for not using a witness with personal knowledge, and instead offers reliable hearsay or other evidence, then the requirements of due process are satisfied.".

Durling, supra, at 118-119, 551 N.E.2d at 1199 (emphasis added).

Also, "The substantial reliability of the police reports in this case, coupled with the practical difficulty of presenting live testimony, discussed earlier, convinces us that the District Court judge could properly base his order of revocation on the evidence presented."

Durling, supra, at 122, 551 N.E.2d at 1201 (emphasis added).

In Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 668 N.E.2d 846 (1996) (rescript), the Appeals Court interpreted Durling to require only a showing that hearsay evidence bears substantial indicia of reliability and is substantially trustworthy in order to meet the "good cause" test, obviating the right to confrontation. In Calvo, "good cause" was held not to require any showing that a live witness was unavailable.

This rule takes a middle ground, requiring that in all cases where the only evidence of an alleged probation violation is hearsay there must be a finding that the hearsay is substantially trustworthy and demonstrably reliable, and requiring a showing of why a live witness is unavailable when the alleged probation violation is based on charged or uncharged criminal behavior.

Trustworthiness and reliability of hearsay

There are at least five criteria for the court's determination of whether a given piece of hearsay evidence is "substantially trustworthy" and "demonstrably reliable," namely, whether the out-of-court statement:

(1) is factually detailed, rather than generalized and conclusory;

(2) is based on personal knowledge and direct observation by the source;

(3) is corroborated by evidence submitted by the probationer;

(4) was provided under circumstances that support the veracity of the source (e.g., was provided under the pains and penalties of perjury or subject to criminal penalties for providing false information);

(5) was provided by a disinterested witness.

This list of factors for determining reliability is taken directly from Durling, except item (5), which is taken from Commonwealth v. Delaney, 36 Mass. App. Ct. 930, 932 n.4, 629 N.E.2d 1007, 1009 n.4 (1994) (rescript), a case applying the Durling test.

Good cause for absence of witness

There are three factors mentioned in Durling for determining good cause for the absence of a live witness, namely,

(1) the distance a witness would have to travel to get to court,

(2) the costs the witness (or his or her public or private employer) would have to incur if the witness were compelled to appear, and.

(3) the difficulty in scheduling the probation violation hearing at a time convenient to the witness and all other participants.

Hearsay test where the alleged violation is criminal conduct

One of the most common alleged violations of probation is alleged criminal conduct. In many of these cases, evidence of the alleged violation will be a police report. Under the rule, there are two issues if the police report is the only evidence presented: reliability of the report and the reason for the absence of a live witness.

In establishing the requisite reliability of the police reports in Durling, the Court stressed that the two police reports related facts observed by the officers personally, and were factually detailed rather than general statements or conclusions. "We think the factual detail is indicative of reliability." Durling, supra, at 121, 551 N.E.2d at 1200 (citation omitted). The Court also mentioned the similarity of the two reports and the fact that the two officers were from different departments. Thus, in Durling, the police reports corroborated each other.

The Durling Court also stressed that in determining "good cause" to justify a finding of violation solely on hearsay, the court had to balance the interests of the probationer and those of the Commonwealth and look to the "totality of the circumstances." It would appear that such balancing includes the concept that the more reliable the hearsay evidence, the less stringent the test regarding the practical reasons for absence of a live witness. Conversely, where the reliability of the hearsay is not as high as it was in Durling, (which involved the unusual circumstance of two separate police reports) it would appear that the justification for the absence of a witness would have to be that much stronger.

Hearsay test where the alleged violation is something other than criminal conduct

The rule does not require a showing of why the live witness is unavailable where the alleged violation is something other than criminal conduct. Thus, for example, if the alleged violation were failure to attend a rehabilitation program, a report from the program, though hearsay, would be sufficient evidence if it met the reliability test of Durling, without regard to why the live witness were not present.

For cases applying the Durling test, see Commonwealth v. Delaney, 36 Mass. App. Ct. 930, 629 N.E.2d 1007 (1994) (finding of violation based on hearsay statement reversed; statement did not meet reliability standard comparable to police reports in Durling and witness was available to testify); and Commonwealth v. Joubert, 38 Mass. App. Ct. 943, 647 N.E.2d 1238 (1995) (revocation order reversed because hearsay statements of a child were not sufficiently reliable and findings indicate judge may have relied on them as the basis of decision).

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