252 P.3d 332
Or. Ct. App.2011Background
- State filed motion to revoke Terry's probation for violating a no-contact order.
- Probation officer Hubbard testified that Medford Police reported a domestic dispute and that Terry admitted violating the no-contact provision.
- Defense objected to Hubbard's statements as hearsay implicating due-process confrontation rights; objection overruled.
- Prosecutor did not introduce further evidence; Terry did not cross-examine Hubbard; probation violation found and probation revoked.
- Wibbens (2010) discussed balancing factors for admitting hearsay in probation-revocation proceedings and the related due-process concerns.
- Court reversed and remanded, holding the hearsay evidence violated Terry's right to confrontation because all Johnson factors weighed against admission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether hearsay via probation officer violated confrontation rights | State | Terry | Yes; admission violated confrontation rights |
| Appropriateness of applying the Johnson balancing test here | State | Terry | Balanced against admission; error |
| Reliance on unsworn, non-documentary hearsay without good cause for absence of declarants | State | Terry | Against admission |
| Reliability of the police report as basis for hearsay | State | Terry | Rejected; not properly relied upon |
| Harmfulness of the hearsay admission given the totality of the record | State | Terry | Not harmless; requires reversal |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation due process protections)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation revocation due process protections)
- United States v. Martin, 984 F.2d 308 (9th Cir. 1993) (confrontation and reliable fact-finding goals in probation cases)
- State v. Johnson, 221 Or.App. 394 (2008) (probation-revocation confrontation balancing factors)
- United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) (general principles of confrontation balancing)
- State v. Wibbens, 238 Or.App. 737 (2010) (application of Johnson factors; unreliability of hearsay; reversible error)