An issue that comes up often in probation revocation cases in Alabama is the use of hearsay evidence. Criminal defense lawyers are sometimes confused about the role of hearsay in a probation revocation hearing because hearsay evidence is generally admissible. While hearsay is inadmissible in most other settings, a judge has the discretion to listen to hearsay evidence as part of probation revocation proceedings if he or she chooses to allow it. But that is not the end of the argument, and it is at this point that attorneys often screw up the case. The issue is not the admissibility of the hearsay testimony, but whether it can be used to revoke probation. The short answer is that it cannot.
Just because hearsay is admissible into evidence in a probation revocation hearing does not mean it is sufficient for revoking probation. Alabama appellate courts have repeatedly held that hearsay testimony, by itself, is not enough to revoke a person’s probation. In the case of Armstrong v. State (http://scholar.google.com/scholar_case?case=18225681040572324737&q=armstrong+state+probation+revocation&hl=en&as_sdt=4,1), 312 So. 2d 620 (Ala. 1975), the Alabama Supreme Court (http://judicial.alabama.gov/supreme.cfm) set the guidelines which must be followed in order to provide a probationer with minimal due process. Among those guidelines were the requirement of “the right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation.)" Id. at 623. While it is in the judge’s discretion to admit hearsay evidence in probation revocation hearings, hearsay cannot serve as the sole basis for revocation of a defendant’s probation. _ Ex parte Belcher (http://scholar.google.com/scholar_case?case=11203406868348770866&q=ex+parte+belcher&hl=en&as_sdt=4,1)_, 556 So. 2d 366 (Ala. 1989).
Despite this rule, judges frequently revoke probation based solely on hearsay testimony, and too often criminal defense lawyers let them get away with it. Most of the time, it is simply because the lawyers don’t know the law on this issue. For those attorneys who are familiar with the restrictions on the use of hearsay in probation revocation proceedings, this is a great issue to argue to the trial judge or to raise in appeal to the Alabama appellate courts.
I’ve written on this subject in the past in an article in The Guardian (http://acdla.org/news/2007GuardianJulyAugSept.pdf) (the newsletter of the Alabama Criminal Defense Lawyers Association) and in an article for Suite101.com (http://www.suite101.com/content/challenging-hearsay-evidence-a35201). As of the writing of this article, the law recited in those articles is still applicable.
If you are currently appealing a probation revocation case, make sure that your attorney raises this issue if the probation revocation was based on hearsay evidence. If you have not yet hired an attorney to handle the appeal, feel free to call our office at (800) 737-3702 Ext. 1 or send an email through our contact page (http://williampfeifer.com/contact).