Hearsay evidence admissibility at Virginia probation violation hearings
Hearsay evidence admissibility in Virginia probation violation hearings faces more lax rules than at a criminal trial
Hearsay evidence faces more lax standards for admissibility than at a Virginia criminal trial. As a Fairfax criminal lawyer, I regret this state of affairs, but it is a reality that must be reckoned with. This is among the reasons that Virginia criminal defendants should carefully consider not only their possible active jail / prison / incarceration sentence (if any) but also the suspended part of that sentece, together with the lenght of probation. The accused can swear on a stack of bibles that s/he never will violate probation (by not being of general good behavior (GGB) (which at least includes committing new crimes) or by violating any term or condition of the defendant’s sentencing order). For at least some convicted Virginia criminal defendants, such a vow can be as hard to keep as a person’s new year’s resolution to lose ten pounds and not gain it back. (At the same time, I strongly believe that a large percentage of convicted defendants have within their realistic grasp the tools to avoid further convictions.)
Why do lower standards apply to admitting hearsay evidence at Virginia probation violation proceedings than at trials determining one’s guilt of innocence?
Why do lower standards for admitting hearsay evidence apply at probation violation / revocation proceedings than at Virginia criminal trials? The Virginia Court of Appeals answered that question a few years ago as follows: “A defendant in the guilt phase of a criminal trial is entitled to a host of constitutional rights, including the right under the Sixth Amendment of the United States Constitution to be confronted by the witnesses against him. See [Henderson v. Virginia, 285 Va. 318] at 325, 736 S.E.2d 901 [(2013)]; Moses v. Commonwealth, 27 Va. App. 293, 300, 498 S.E.2d 451 (1998)… However, once a ‘criminal prosecution has ended in a conviction,’ the defendant ‘is not entitled to the ‘full panoply’ of constitutional rights to which he was entitled at trial.’ Henderson, 285 Va. at 325, 736 S.E.2d 901 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). Consequently, ‘application of the Confrontation Clause to … post-trial … proceedings is inappropriate.’ Moses, 27 Va. App. at 301, 498 S.E.2d 451 (sentencing); see Henderson, 285 Va. at 325-26, 736 S.E.2d 901 (revocation).” Jenkins v. Virginia, 71 Va.App. 334 (2019).
What standards apply for limiting hearsay evidence admission at a Virginia probation violation hearing?
Applying no higher evidentiary admissibilitiy standards to a parole violation hearing than a probation violation hearing, the Virginia Supreme Court has held regarding hearsay evidence that: “Hearsay is frequently admitted in revocation proceedings… Hearsay that is testimonial in nature, however, is subject to the limited confrontation right provided by the Fourteenth Amendment. Such hearsay may be admitted only when ‘the hearing officer specifically finds good cause for not allowing confrontation.’ Morrissey…” Henderson, 285 Va. at 326.
How is good cause determined for allowing testimonial evidence at a Virginia parole revocation hearing?
More lax standards apply to admissiblity of sentencing evidence for a Virginia probation violation hearing or original sentencing, than for determining whether probation has been violated
Just as with a Virginia sentencing after conviction, at a probation violation hearing: “To be admissible in the penalty or sentencing phase, hearsay evidence must ‘bear some indicia of reliability.'” Jenkins v. Virginia, 71 Va.App. 334, 345 (citations omitted.)
Should I fight my Virginia probation violation charge?
You should absolutely fight a Virginia probation violation charge against you. To be found in violation of probation not only risks jail or prison / pentitentiary time, but such a violation is best avoided for one’s repuation. Highly-rated Fairfax criminal lawyer Jonathan Katz has successfully defended hundreds of defendants accused of violating their probation, and pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Call 703-383-1100 for you free in-person consultation with Jon Katz about your court-pending case.