Here’s one more reason to think twice about demanding a probation violation hearing.
According to the Appeals Court, “nested hearsay”(i.e., hearsay within hearsay) is admissible at a VOP hearing if it “bears substantial indicia of reliability and is substantially trustworthy.”
A probationer was accused of committing a new crime: breaking and entering.
He disputed the new allegations at a probation violation hearing.
During the hearing, the government submitted the B&E arrest report into evidence.
The probationer objected, arguing that the report contained “nested hearsay.”
(Before reading this case, I had never heard the phrase “nested hearsay.” My Black’s Law Dictionary does not contain it. Usually, such statements are referred to as “hearsay within hearsay.” Though I have also seen the appellate courts use the term “totem-pole hearsay.” But I digress.)
The hearsay statements at issue came from two witnesses who allegedly saw the probationer at the scene of the breaking and entering.
These witnesses were not present at the hearing and, therefore, their statements in the police report amount to hearsay.
Nevertheless, the judge allowed the report into evidence, found a violation, and revoked the probationer’s probation.
His attorney’s appealed and today the Appeals Court sided with the judge.
The Appeals Court writes,
The nested hearsay of the two witnesses is also substantially reliable. The hearsay statements were given to police officers, who obtained the witnesses’ names, addresses, and phone numbers. In addition, the first witness’s statements were corroborated by the fact that the defendant was found on the third-floor porch of the building. The second witness’s statements about the defendant entering his apartment with a flashlight and plastic bag were corroborated by the observation and seizure of a plastic bag with a flashlight, as well as plastic gloves, in it from the very porch where the defendant was initially seen by the police. This suffices to support our conclusion that the judge did not abuse his discretion in concluding that the hearsay in the police report was substantially reliable.
The full text of the slip opinion is attached below.