Confrontation at Probation Violation Hearings

Under G.S. 15A-1345(e), a probationer is entitled at a probation violation hearing to “confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” What does that statute mean by confrontation? The statute’s language comes directly from a 1973 case called Gagnon v. Scarpelli, 411 U.S. 778 (1973), in which the Supreme Court of the United States set out what process is due at a probation violation hearing. The Court held that before probation is revoked, a probationer is entitled to, among other things, “the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 786. As you can see, the statute practically quotes the Court. The law’s reference to confrontation may call to mind the Sixth Amendment’s Confrontation Clause, which Jessie Smith has written so much about on this blog and elsewhere (her flagship bulletin, Jessica Smith, Understanding the New Confrontation Clause Analysis: Crawford, Davis, and Melendez Diaz (Apr. 2010), is available here). The Confrontation Clause provides that “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” If you’ve learned anything from Jessie you know that the Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), excludes a lot of evidence that might otherwise be admissible under the rules of evidence and older confrontation case law. But that’s Sixth Amendment confrontation. Read the amendment carefully [...]