Hearsay in Supervised Release Revocation

United States v. Lamond D. Kelley, No. 05-1884 (May 2, 2006): Mr. Kelley's supervised release was revoked. At the revocation hearing, a police officer testified that two complainants told him that Mr. Kelley had assaulted them with fists and had threatened them with a gun. The officer received Mr. Kelley's permission to search the trunk of his car, where he found a gun.

The Court rejected the argument that Crawford v. Washington, 541 U.S. 36 (2004) bars hearsay at a revocation hearing. Reasoning that such hearings are not criminal prosecutions for Sixth Amendment purposes, it refused to extend Crawford beyond the trial setting.

The Court acknowledged that under the due process clause of the Fifth Amendment there is a right to confront unless the judge specifically finds good cause for not allowing confrontation. In this case, the district judge apparently accepted the government's view that hearsay is always allowed at revocation hearings. In that regard, the district judge was found to have erred.

But the Court approved the admission of the hearsay. In the Seventh Circuit, good cause can be satisfied if the hearsay is found reliable. The testimony about the out-of-court statements by the complainants was deemed reliable, since the officer did find a gun, corroborating a big piece of their story. Finding this gun also made any error harmless.

Mr. Kelley also advanced the arguments that (1) Circuit law erroneously equates reliability with good cause and (2) when a court finds good cause, it should make findings on the record. The Court found that these arguments were insufficiently developed to merit consideration, although it did opine that "ideally" the district judge should have made such findings. (Of course, the district judge never made such findings, since he was seriously misinformed about the law.)