Probation Violations & Lower Evidentiary Standards

Probation violation hearings are often misunderstood and regarded by defendants with either a sense of hopelessness or zealous defiance.  Making such hearings even more unclear is the fact that probation “arises after the end of the criminal prosecution” and thus, “the full panoply of rights due a defendant in [a criminal] proceeding do not apply.”  Morrissey v. Brewer (1972) 408 U.S. 471, 480 (parole hearings) and Gagnon v. Scarpelli (1973) 411 U.S. 778, 782 (probation hearings).

However, exactly what “rights due a defendant” apply?  Certainly, at least some due process rights must apply, but which rights do not apply?  Is hearsay admissible?  Does the probationer have a Sixth Amendment right to confront a witness in a probation revocation hearing?

The recent California Supreme Court ruling in People v. Dontrae Renay Gray (August 14, 2023) clarifies much of this ambiguity.

In September 2015, Mr. Gray pleaded no contest in Los Angeles Superior Court to one count of assault with a deadly weapon (Penal Code § 245(a)(1)) and admitted that he personally inflicted great bodily injury in the commission of the offense (Penal Code § 12022.7(a)).  The trial court judge imposed a seven-year prison sentence, suspended execution of that sentence, and placed Mr. Gray on formal probation for five years.  One condition of probation was that he obey all laws.

Three and a half years later, police officers received a 911 call from a woman reporting that someone was “trying to break” and “kick . . . in” a door to a residence.  Police were dispatched and arrived about four minutes later and encountered the caller, N.S., at the front of the residence.  Officers observed damage to the front door of the house.

Police went to the back of the house and found Mr. Gray, who they arrested. 

Officers then spoke to N.S., who “appeared frightened” and was “breathing heavily.”  She had several bruises or red marks on her arms and a small scratch on her cheek.  She told officers that Mr. Gray tried to punch her approximately 20 time and that she fell to the ground. 

Mr. Gray was then charged with violating Penal Code § 273.5(a) (domestic violence) and § 459 (residential burglary).  The prosecution also filed a motion requesting that defendant’s probation be revoked based on this incident.

N.S. recanted in part and then did not appear at defendant’s criminal trial.  The prosecution then announced it was unable to proceed and the judge granted defendant’s motion to dismiss.

The court then held a probation revocation hearing several weeks later and Mr. Gray objected to introduction of one officer’s body worn camera video of N.S.’s statements, arguing that admission of the video violated his Sixth Amendment rights under Crawford v. Washington (2004) 541 U.S. 36.

The judge ruled that the Sixth Amendment applied only in criminal proceedings and therefore did not apply at a probation violation hearing.  The judge then ruled that N.S.’s statements qualified as spontaneous statements under Evidence Code § 1240 and were admissible as an exception to the hearsay rule.  The judge then found that Mr. Gray violated his probation and imposed the previously suspended seven years’ imprisonment.

Mr. Gray appealed from the order revoking his probation and the Court of Appeal affirmed, rejecting Mr. Gray’s argument that the trial court must make a finding of good cause to dispense with his right to cross-examine N.S. (under the Sixth Amendment and Crawford) and also find that good cause outweighed defendant’s need for confrontation.  People v. Liggins (2020) 53 Cal. App. 5th 55, 66.

Mr. Gray then appealed to the California Supreme Court, which agreed with him and reversed the Court of Appeal. 

The Supreme Court explained that since parole and probation hearings involve a liberty interest, due process entitles parolees and probationers to certain minimum rights, including the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation in that individual case.  The judge must make a case-by-case consideration and not automatically admit certain hearsay as a hearsay exception or automatically deny the parolee or probationer the right to confront and cross-examine the witness.

We appreciate this ruling, as it certainly seems to provisionally expand the rights of a defendant at a probation or parole revocation hearing and, being from the California Supreme Court, sets forth a new uniform standard statewide, eliminating previously differing standards among appellate districts within California (particularly in the Second Appellate District, which includes Los Angeles County).