260 P.3d 607
Or. Ct. App.2011Background
- Monk was on probation for menacing under ORS 163.190.
- A probation violation hearing found he violated a condition not to possess controlled substances.
- The only evidence of the violation was a probation officer’s testimony about a police report claiming marijuana was found in Monk’s possession.
- The officer who authored the police report was unavailable; the testimony did not identify who found the marijuana or who authored the report.
- Defendant objected on due process grounds; the trial court admitted the testimony, relying on it as the basis for the violation.
- On appeal, the court reversed and remanded, holding the due process rights were violated by admitting the challenged evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of hearsay probation officer testimony violated due process | Monk | Monk | Erroneous admission; due process violated |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (parole proceedings; due process in hearings)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (probation violation proceedings; confrontation rights)
- United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) (test balancing for confrontation rights in probation contexts)
- State v. Wibbens, 238 Or.App. 737 (Or. App. 2010) (unreliable hearsay from unavailable officer; no corroboration)
- State v. Terry, 240 Or.App. 330 (Or. App. 2011) (no cross-examination of police officers; police report not admitted)
- Johnson, 221 Or.App. 394 (Or. App. 2008) (four-factor test balancing confrontation rights and state interests)