State v. Mosley – State’s Use of Hearsay Evidence at Probation Violation Hearings

Most defendants who are facing jail time are very satisfied with a probationary sentence in lieu of incarceration.  However, defendants sentenced to probation do not always realize that the sentence comes with a list of terms and conditions with which they must comply during their period of supervision.  Some terms and conditions are fairly standard.  These typically include remaining arrest-free, maintaining employment, going to school, and remaining drug and alcohol free.  The sentencing judge can also impose more case-specific or defendant-specific terms and conditions that can be very creative, and are designed to meet the unique needs of the matter at hand.

The failure to comply with the terms and conditions can result in the filing of a violation by the probation officer responsible for the case.  The Court will then schedule a hearing on the violation.  If the violation is sustained, the Court could impose penalties that range from a lengthening of the probationary term to a sentence in state prison.  Under current law, the maximum term of probation in New Jersey is 60 months, or five years.  Certain defendants may be eligible for early termination if they can show compliance with all conditions and requirements.  Defendants must always remember that being on probation is not always easy, and the likelihood of a violation typically increases with the length of the probationary term.  Put somewhat differently, defendants who are placed on probation for long periods of time are at greater risk of facing a violation.

State v. Mosley, decided by the New Jersey Supreme Court on March 6, 2017, reminds us that probation violation hearings are not criminal trials.  The State bears the burden of proving the violation, but the standard of proof is much lower than what is required at trial.  This is largely because probation violation hearings are not viewed as part of a criminal prosecution, but as part of the corrections process.

In Mosley, the defendant was charged with violating the terms and conditions of his probation.  Specifically, he was serving a five-year term of probation when he was arrested on new criminal charges.  The new charges formed the basis for the violation.  The only detective who testified at the VOP hearing was not directly involved in the events underlying the new charges, but was involved to some extent in the subsequent investigation.  He testified based upon information contained in police reports prepared by the on-scene officer, as well as a report that he had prepared which stemmed from his conversations with other officers.  Several times during the VOP hearing, he had to refresh his recollection by reviewing reports.  He also read directly from police reports.  Thus, his testimony was largely – if not exclusively – hearsay.  The defense objected, while the State, which refused to produce additional evidence, argued that hearsay evidence is admissible at VOP hearings, and that the standard of proof is lower than at trial.

The trial court agreed with the State and the Appellate Division affirmed, concluding that a trial court may rely on hearsay at a VOP hearing to show that defendant committed a new offense if the hearsay is “demonstrably reliable”.  The Supreme Court granted certification limited to the issue of whether a trial court can accept hearsay testimony as proof that a defendant committed a new offense in violation of probation.

The Supreme Court began by noting two conflicting issues.  First, defendants clearly have due process rights at a VOP hearing.  Nevertheless, hearsay, which can sometimes violate those rights, is generally admissible at such a hearing.  The trial court, however, must consider the State’s reasons for relying on the hearsay, as well as the reliability of the hearsay.

The Court observed further that most state courts allow the use of hearsay so long as it is deemed reliable.  The Court then set forth a balancing test that contemplates an assessment of the State’s reasons for relying on hearsay, in addition to evaluating its reliability.  The Court found that the hearsay evidence must be reliable so as to satisfy due process, and the reason for relying on the hearsay factors into the reliability assessment.  Other factors that must guide the trial court are: (a) the importance of the evidence; (b) the defendant’s ability to refute the evidence; (c) the consequences to the defendant; (d) the difficulty and expenses of getting witnesses; and (e) traditional criteria used to evaluate the reliability of evidence.  Finally, the trial court must place its reasons for relying on the hearsay evidence on the record.

In the matter at bar, the defendant was charged with violating probation by committing a new offense.  At a VOP hearing, this type of violation is usually substantiated by submitting proof of a criminal conviction.  Here, the State proceeded with the VOP proceeding before the new criminal case; accordingly, the defendant had yet to be convicted of anything.  The State was, however, required to prove the new charge to sustain the VOP, and the defendant’s ability to defend against the new charge was compromised because he was deprived of the chance to confront and cross-examine the the officer(s) primarily involved in his new case.  Thus, the State’s evidence at the VOP hearing was not sufficiently reliable to prove the new charge that was the basis for the VOP, thereby denying the defendant a hearing that complied with due process requirements.

While this case will certainly help provide more structure to VOP hearings which are typically quick and relatively informal, it also reminds us that the standard of proof at a VOP hearing is significantly lower than at trial, and that the State’s evidence does not have to be as powerful as what is presented to a jury.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey.  Mr. Friedman represents defendants with criminal charges in all state and federal courts located in New Jersey and New York City.




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