[DV_listserv] Use of Hearsay in PV cases

[Domestic Violence issues]

Not specifically DV-related, but applicable since we tend to do SO MANY PV hearings in DV cases....



This case, while irritating on its face, may provide a good guideline for how we CAN use hearsay.



COURT ERRED IN ADMITTING HEARSAY AT PROBATION-VIOLATION HEARING

State v. Monk, 243 Or App __, __ P3d __ (July 13, 2011) (Multnomah) (AAG Patrick Ebbett).

At a show-cause hearing, the court found defendant in violation of his probation, on a conviction for

menacing, based on testimony from his probation officer that another police officer, who was "at

training" on the day of the hearing, had filed a report stating that he had found defendant in possession

of marijuana; the court extended defendant's term of probation.

Held: Reversed and remanded. [1] Although neither the rules of evidence nor the state or

federal constitutions provide a pro se bar to admission of hearsay in a probation-revocation hearing,

the defendant does have a general right under the Due Process Clause to confront and cross-examine

witnesses based on consideration of four factors: "(1) the importance of the evidence to the court's

finding; (2) the probationer's opportunity to refute the evidence; (3) the difficulty and expense of

obtaining witnesses; and (4) traditional indicia of reliability borne by the evidence." [2] In light of

State v. Wibbens, 238 Or App 737 (2010), and State v. Terry, 240 Or App 330 (2011), the court erred

because the hearsay at issue was the only evidence of the alleged violation, the testimony as to the

circumstances of the of the alleged violation was vague, the state did not offer much of an explanation

why the officer who found the drugs was unavailable, and the report on which the probation officer

relied was not offered as evidence.

http://www.publications.ojd.state.or.us/A143634.pdf

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