842 N.W.2d 63
Neb.2014Background
- Johnson was convicted in 2007 of abuse of a vulnerable adult based on financial exploitation; sentenced to 3 years' probation in 2008.
- State moved to revoke probation in 2010 after alleged assault on Majocha; district court held a two-day evidentiary hearing in 2012.
- Majocha died January 2, 2012, making her unavailable for cross-examination; the State introduced hearsay statements via officers’ testimony and exhibits.
- District court admitted the hearsay statements on good-cause grounds due to unavailability and corroboration by photos and other evidence.
- Probation was revoked in January 2013; Johnson appealed arguing due process and confrontation rights were violated and that the evidence was insufficient.
- Appellate court affirmed the probation revocation, applying a public-interest mootness exception to address confrontation in probation proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of hearsay by an unavailable witness violated due process and confrontation rights. | Johnson argues the hearsay violated §29-2267 and Sixth Amendment confrontation. | State contends probation hearings relax evidence rules but require due process and allow admission with good cause when witness unavailable. | No reversible error; due process and confrontation rights were satisfied under the probation-revocation framework. |
| Whether the State proved by clear and convincing evidence that Johnson violated probation. | Johnson contends evidence was insufficient to prove violation. | State maintained the record, including corroborating photos and statements, supported a clear showing of violation. | Yes; the State proved the violation by clear and convincing evidence. |
Key Cases Cited
- State v. Shambley, 281 Neb. 317 (Neb. 2011) (probation revocation evidence and confrontation guidance; hearsay allowed with unavailability and corroboration)
- State v. Clark, 8 Neb. App. 525 (Neb. App. 1999) (reliance on hearsay in probation proceedings with good cause)
- Peters v. State, 984 So. 2d 1227 (Fla. 2008) (Sixth Amendment confrontation concerns do not apply to probation revocation; due process governs)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (probation revocation not a criminal prosecution; due process requires flexible procedures)
- Minnesota v. Murphy, 465 U.S. 420 (U.S. 1984) (no Sixth Amendment jury trial right before probation is revoked)