Probation revocation reversed because of unreliable hearsay

The Tennessee Court of Criminal Appeals recently reversed a Shelby County criminal court that revoked a defendant’s probation based on unreliable hearsay.  Unlike at a trial, hearsay can be used at a probation revocation hearing.  State v. Wade, 863 S.W.2d 406, 407-08 (Tenn. 1993).  However, in order to use hearsay at a probation revocation hearing, the court must make a finding as to why it is reliable and whether good cause justifies the denial of the defendant’s right to confront and cross-examine adverse witnesses.

At the probation revocation hearing in this case, the State argued that the defendant had committed a new crime.  However, the State didn’t have the alleged victim testify; it just had an officer testify to what the alleged victim had allegedly said.  The trial court never found why the hearsay was reliable and why it was justified by good cause.  Rather, the court stated that “the bottom line was, is that, if he picked up any charges whatsoever, it’s a clear violation . . . .”  Further, the prosecutor never stated why the alleged victim was unavailable or that a subpoena was issued for her.  Since the trial court never made a finding that the hearsay was reliable and there was a lack of evidence in the record that it was reliable, the Officer’s testimony regarding the alleged victim’s statements should have been excluded, and therefore, the State could not prove that a crime had actually been committed.  Reversed!

State v. Washington, No. W2016-00669-CCA-R3-CD (Tenn. Crim. App. Sept. 5, 2017)

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