State v. Wibbens, 238 Or. App. 737

Defendant pled no contest to unlawful possession of methamphetamine and was placed on probation under ORS 475.245 and 475.894.
Judgment was suspended pending successful completion of probation on a first-time drug offender plan.
During probation, defendant was charged with using alcohol in violation of probation conditions.
At the probation revocation hearing, Deputy Tilley’s unsworn telephone statement about defendant smelling of alcohol was admitted as hearsay.
Defendant objected, arguing due process and confrontation rights; the state did not otherwise present corroborating evidence.
The trial court found a probation violation based solely on Tilley’s hearsay and entered judgment; on appeal, defendant challenged the evidentiary basis as a due process violation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admission of Tilley's hearsay violated due process due to confrontation	Wibbens contends the hearsay lacks reliability and there was no good cause to deny confrontation.	Wibbens argues the right to confrontation outweighs the state's need for the hearsay; no good cause shown.	Yes; admission violated due process.
Application of the confrontation-balancing test to probation revocation	Johnson framework supports admitting hearsay with good cause.	Johnson factors weigh against admission given unreliability and lack of cause.	Balancing favors defendant; error in admitting hearsay.
Importance of the evidence to the court's finding	Tilley's statement was essential to prove the violation.	There was no corroboration; the declarant unavailable without good reason.	Evidence was indispensable; its admission violated due process.
Existence of good cause for denying confrontation	No explicit good cause shown for unavailability of Tilley.	No reasonable basis presented; testimony was unsworn hearsay.	No good cause shown; due process violated.

Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation requires due process safeguards including confrontation)
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (extends probation revocation protections; confrontation may be bypassed with good cause)
United States v. Martin, 984 F.2d 308 (9th Cir. 1993) (probationers must have fair opportunity to refute evidence)
United States v. Walker, 117 F.3d 417 (9th Cir. 1997) (recognizes balancing approach for hearsay in probation contexts)
Comito, 177 F.3d 1166 (9th Cir. 1999) (unsworn hearsay generally least reliable; factors for reliability)
State v. Johnson, 221 Or. App. 394 (2008) (adopts Ninth Circuit balancing; considers importance, opportunity to refute, reliability, and availability)