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Appeals Court Addresses Unreliable Hearsay Issues in Contect of Probation Violation Hearing

questions-1151886-300x225Following a probation violation hearing, the Appeals Court affirmed the revocation of the defendant’s probation in Commonwealth v. Hamilton.  The Court Court agreed with some of the grounds for revocation cited by the judge, but disagreed with the judge as to other grounds, including one that was based on unreliable hearsay.

The background was as follows. “The defendant pleaded guilty in November 2012 to two charges of possession of child pornography and one charge of failure to register as a sex offender. He was sentenced to a term of incarceration on the child pornography convictions and five years’ probation on the failure to register conviction. A special condition of his probation was that he ‘not possess pornography.’ In May 2014 the probation department served the defendant with a surrender notice alleging that he violated several of his probation conditions. After an evidentiary hearing… the judge made oral findings that the defendant twice failed to report to probation and that he possessed pornography…. Finding the defendant in violation on these grounds, the judge revoked his probation.” On appeal, “[t]he defendant argue[d] that he was not on fair notice that the materials he possessed [photographs and written materials] qualified as pornography in violation of the special condition.”

In its decision affirming the judge’s revocation order, the Appeals Court “conclude[d] that the defendant had fair warning that at least one of the categories of materials he possessed — explicit stories describing the rapes of young children — constituted pornography in violation of the special condition.” However, the Court “agree[d] with [the defendant’s] contention that the judge’s finding of failure to report [to probation officers on two occasions] rested on unreliable hearsay.” The Court explained that “[t]he evidence on this issue consisted of the testimony of a probation officer [Loughlin] reading from the notes of another probation officer [Lydon]. The notes themselves were not admitted in evidence. Loughlin testified as follows: ‘[Lydon] was able to determine from a contact with the Worcester County Sheriff’s Office that around April 18th, [the defendant] was in custody of the Connecticut authorities on [an] outstanding warrant. [Lydon] had subsequent conversations with the interstate compact unit and Connecticut, and later determined that [the defendant] was released from incarceration in Connecticut and failed to report. Didn’t report on April 18, 2014. And then, after arranging with Connecticut to notify [the defendant] that he needed to report to probation forthwith, on April 1st, 2014, according to Connecticut authorities, [the defendant] was due to report the next day, on the 2nd, and failed to report on that day.’”

The Appeals Court opined “that Loughlin’s testimony, which was multileveled hearsay, was not substantially reliable…. [T]he problem … is that Lydon did not have direct knowledge about the defendant’s failure to report in Connecticut. Instead of reporting facts observed by law enforcement officers, Lydon’s notes provide unexplained conclusions. The evidence does not establish who in Connecticut told the defendant that he had to report, or whether he was even told to report on April 18, 2014…. Moreover, the hearsay statements were internally inconsistent” as to the date on which the defendant allegedly failed to report. “The hearsay statements therefore did not bear sufficient indicia of reliability and trustworthiness to obviate the need for confrontation” at the probation revocation hearing. “As this was the only evidence of the defendant’s alleged failure to report, the Commonwealth did not prove by a preponderance of the evidence that the defendant violated his probation on this basis.”

Regarding the parties’ dispute as to whether the conditions of probation provided fair warning to the defendant about possession of pornography, the Appeals Court advised that “[t]o the extent [that] judges in future cases find it appropriate to impose a no-pornography condition, they should endeavor to provide more guidance as to what types of material would qualify as pornographic. For example, the probation order could incorporate or borrow from the definitions of child pornography … set out in G.L. c.272, §29C, or 18 U.S.C. §2256(8)…. The probation order could also ‘clarif[y] whether it extended [to] non-visual materials.’ [United States v.] Loy, [237 F.3d 251, 267 (3d Cir. 2001)].”

Whether a probation officer has sufficient evidence to prove that a violation of probation has occurred has significant consequences, including the possibility of incarceration.  If you or a loved one is facing a probation violation hearing, it is crucial that you have an attorney who can assess the strength of the evidence levied against you, explore any weakness or questions about the admissibility of that evidence, and advocate for a favorable sentence in the event that a violation is ultimately found.  Attorney Daniel Cappetta has successfully represented clients many times at probation violation hearings.  Call him today for a free consultation.

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