The Supreme Court has held that at trial, a defendant has a right to confront those people offering testimony against him. In a recent Kansas Supreme Court opinion, Mr. Shane Marquis argued that the confrontation rights as defined by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), are applicable even after the disposition of the charge. State v. Marquis, No. 100,423, slip op. at 2 (Kan. 2011). Mr. Marquis plead guilty to drug and theft charges. At sentencing, the court granted him a departure and placed him on probation. Approximately a year later, he violated his probation and was allowed to return to probation so long as he completed a “boot camp.”
Months later, the State sought to revoke Mr. Marquis’ probation alleging that he had failed to complete boot camp. At the probation hearing, the State called as a witness the director of community corrections. The direct noted he did not have personal knowledge of Mr. Marquis’ case. Therefore, the State had the director present an affidavit of Ms. Luna, the community corrections officer assigned to Mr. Marquis’ case, that stated Mr. Marquis was removed from boot camp for disciplinary reasons. The court found the affidavit constituted sufficient proof of a probation violation. As a result, the court revoked Mr. Marquis’ probation and sentenced him to prison to service his sentences.
On appeal, Mr. Marquis argues the district court violated his “right of confrontation under both the federal and state Constitutions by considering the affidavit of his supervising officer without complying with the requirements for the admission of testimonial hearsay set forth in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).” Id. at 2. The court first finds that the Crawford case does not change the right of the Sixth Amendment Confrontation Clause–the clause still does not apply to probation revocation proceedings because it is not part of the criminal prosecution.
However, due process mandates that a defendant have the opportunity to confront and cross-examine those testifying against him at a probation revocation hearing unless there is “good cause for not allowing confrontation.” Id. at 6 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). To determine where good cause exists, the court considers ”(1) the explanation the State offers for why confrontation is undesirable or impractical, and (2) the reliability of the evidence which the State offers in place of live testimony.” Id. at 5 (citing State v. Yura, 250 Kan. 198, Syl. ¶ 4). Here, the district court appeared to find the affidavit by Ms. Luna to be reliable. However, there was no evidence explaining why Ms. Luna was not present. The court holds that the good cause test requires the court to consider both factors, including why an important witness was not present at a proceeding. Here, the district court did not discuss the reason for Ms. Luna’s absence. Because it did not consider both factors, the Kansas Supreme Court reversed the court’s decision to revoke probation and remanded the case to the district court.
Even after trial, a defendant still has rights. To speak to an experienced attorney, contact Bell Folsom, P.A.