The naked truth: an in-depth look into the question of hearsay admissibility at probation violation hearings in Massachusetts, the application of Rule 6, and what it all means for the future of the Massachusetts probation system.

Author:Wirth, Ashley

The Emperor's New Suit

An Emperor of a prosperous city who cares more about clothes than military pursuits or entertainment hires two swindlers who promise him the finest suit of clothes from the most beautiful cloth. This cloth, they tell him, is invisible to anyone who was either stupid or unfit for his position. The Emperor cannot see the (non-existent) cloth, but pretends that he can for fear of appearing stupid; his ministers do the same. When the swindlers report that the suit is finished, they dress him in mime. The Emperor then goes on a procession through the capital showing off his new "clothes. " During the course of the procession, a small child cries out, "the emperor is naked!" The crowd realizes the child is telling the truth. The Emperor, however, holds his head high and continues the procession. --Hans Christian Andersen 1837


    The Fifth Amendment to the United States Constitution prohibits the federal government from denying "life, liberty, or property" from any person without due process of law. (1) In a criminal prosecution, the line is clear: the protections provided by the Constitution for a criminal defendant are absolute. (2) However, after the adjudication of a defendant's case, the court's disposition has significant repercussions on the accused's liberty. (3) Although statutorily dependent, many states--including Massachusetts--grant judges the discretion to order probation in a criminal case after a finding of guilty or after a continuance without a finding. (4) While on probation, a probationer has "conditional liberty." (5) As such, once it is determined a probationer has violated one or more of the contingencies upon which his liberty rests, his probation can be revoked and his liberty forfeited. (6) A probation violation hearing illuminates this conditional liberty status because the same system that granted probation now has the discretion to take it away. (7) Unlike the bright line set out by the United States Constitution for a criminal defendant on trial, the line defining which constitutional protections are afforded to a probationer during a probation violation hearing is less well-defined. (8) Likewise, the evidentiary standards used to enforce those constitutional protections afforded to probationers are more relaxed compared to the evidentiary standards governing criminal trials. (9)

    Accordingly, states across the country developed their own state and local district court rules outlining probation violation procedures. (10) This Note addresses the current discrepancies in Massachusetts law surrounding the admissibility of hearsay evidence at probation violation proceedings. (11) Specifically, this Note shows how the Supreme Judicial Court's ("SJC") decision in Commonwealth v. Negron (12) is inconsistent with the language, application, and intent of Rule 6 of the District Court Rules for Probation Violation Proceedings ("Rule 6"). (13) Part II discusses the history and purpose of probation in Massachusetts and chronicles the relevant case law giving rise to the current state of the law. (14) Part III explains the existing disparity in Massachusetts law. (15) Part IV highlights the incorrect application of Rule 6 in Negron and its progeny by examining the Massachusetts courts' reasoning with respect to the admissibility of hearsay evidence at probation violation hearings both before and after Rule 6's enactment. (16) Additionally, Part IV explores the immediate and long-term consequences of safeguarding probationers' constitutional rights, addressing Massachusetts' history of shying away from awarding constitutional protections to probationers; (17) Rule 6's consistency with probation's purpose; (18) and, whether awarding constitutional protections to probationers compromises the purpose of probation. (19) Lastly, Part V calls for legislative and judicial action to reconcile the present incongruity in the law. (20) This Note suggests that the language of Rule 6 is consistent with the original rehabilitation goals of probation. (21)


    1. Probation in Massachusetts

      The concept of probation is deeply rooted in the Commonwealth of Massachusetts. (22) Probation's original purpose was rehabilitation. (23) A revolutionary concept of its time, the probation system not only restored power to the judiciary, but shifted the focus of corrections to the individual. (24) Massachusetts' system was deemed a success and the concept of probation quickly spread throughout the country. (25) As a result, probation, and its underlying purpose of rehabilitation, spawned a modern trend towards community-based corrections. (26)

      Under current Massachusetts law, any state court with criminal jurisdiction has authority to place an individual on probation. (27) Chapter 276, section 87A of the Massachusetts General Laws bestows virtually boundless discretion upon the judiciary with respect to the contingencies it is authorized to impose as conditions of probation. (28) Similar to the broad latitude afforded to the judiciary in sentencing probation, there is also ample discretion in the type of conduct that warrants revocation. (29)

    2. Probation Violations Hearings and Hearsay Evidence in Massachusetts

      Massachusetts has developed, adopted, and modified a set of rules tailored specifically for probation violation hearings. (30) Consequently, the unique problem of apportioning constitutional rights to probationers was born. (31) The admissibility of hearsay evidence at a probation violation hearing varies greatly from state to state and creates issues surrounding a probationer's constitutional rights to due process and confrontation. (32)

      Following the landmark probation violation hearing decision in Commonwealth v. Durling, (33) the Massachusetts Legislature enacted Rule 6. (34) Pursuant to Rule 6(a), hearsay evidence is admissible at probation violation hearings. (35) When an alleged probation violation is based solely on hearsay evidence, Rule 6(b) provides guidelines establishing the sufficiency of hearsay evidence. (36)

      Prior to Rule 6's enactment, hearsay evidence was consistently admitted at probation violation hearings. (37) Notably, the majority of cases where a probationer was found to have violated probation and had his probation revoked and the revocation was reversed on appeal, turn on the issue of whether the evidence offered to prove the violation was sufficient, not inadmissible. (38) Following Rule 6's enactment, between the years 2000 and 2004, hearsay evidence continued to be regularly admitted into evidence at probation violation hearings. (39) The SJC shifted the focus of Rule 6's application from sufficiency to admissibility in 2004, through the Negron decision. (40) As a result, the decisions following Negron provide contradictory applications of Rule 6 resulting in inconsistent case law. (41)


    In Negron, the Commonwealth petitioned a single justice of the SJC seeking relief from the district court's evidentiary ruling at a probation violation hearing. (42) The trial court's ruling excluded the statements made by the probationer's wife to the testifying officer, finding the wife's statements were "inadmissible hearsay of questionable reliability." (43) On appeal, the SJC rejected the trial court's determination that the wife's invocation of her marital privilege was indicative of the statements' unreliability, and instead, held that "[t]he proper inquiry [in determining admissibility] is whether the hearsay evidence itself had substantial indicia of reliability establishing good cause for overcoming the need for confrontation." (44) In addition to the newly announced reliability prerequisite, in a footnote at the very end of its decision, the SJC alluded to an additional factor preceding admissibility, noting, "[a]dmission of the hearsay also includes, of course, an additional implicit determination that the witness who is reporting the hearsay ... is doing so accurately." (45)


    1. Anarchy. The Inconsistent Manner in Which Hearsay Evidence is Admitted at Probation Violation Hearings.

      There is a significant difference between the decision to admit evidence and the question of what to do with evidence once it has been admitted. (46) As a result of Negron, the admissibility of hearsay evidence at probation violation hearings remains unclear. (47) Rule 6 codified the SJC's Durling decision. (48) Rule 6(a) expressly states that hearsay evidence is admissible at a probation violation hearing. (49) Moreover, Rule 6(b) provides for a "sufficiency check" when the only evidence submitted to prove a probation violation is hearsay. (50) In Negron, the SJC entertained the Commonwealth's appeal which challenged the district court's ruling that hearsay evidence was inadmissible, before it found the probationer violated his probation. (51) In remedying the error, the SJC effectively redefined Rule 6, (52) despite determining that the lower court erred in its evidentiary ruling. (53)

      By announcing a new standard for admissibility of hearsay evidence at probation violation hearings, Negron serves as the black sheep in a long line of precedential case law. (54) However, prior to the 2004 Negron decision, courts admitted hearsay into evidence inconsistently at probation violation hearings. (55) Rather than clarifying the issue, Negron and its progeny only add to the calamitous state surrounding the substantive law that governs probation violation proceedings. (56)

    2. The Black Sheep. Negron Decision Pulls Away from Massachusetts' Historic Resistance to Expanding the Breadth of Constitutional Protections for Probationers.

      Notwithstanding the general due process exception, there has been strong resistance by Massachusetts courts to expand constitutional protections to probationers. (57) In refusing to extend these constitutional safeguards, courts have reasoned that excluding certain evidence not only hides a probationer's non-compliance...

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