Probation Surrender Hearings Dependent Upon Hearsay

The Massachusetts Court of Appeals issued the decision in Commonwealth v. Henderson on October 19, 2012.  The decision considered whether pursuant to the standard set in Commonwealth v. Durling, solely documentary evidence can substantiate revocation of probation at a surrender hearing.  The court concluded that the documentation in this instance did reflect substantial reliability in conformance with the factor analysis set for in the District Court Rules for Probation Violation Hearings and existing case law.

Specifically, Commonwealth v. Durling establishes that revocation of probation may rest exclusively upon hearsay evidence of the alleged violation so long as the hearsay carries the indicia of substantial reliability and provides a reasonable preponderance of evidence.  Additionally, the commentary to rule 6(b) offers five criteria of substantial reliability: (1) whether the statements are “factually detailed, rather than generalized and conclusory”; (2) whether the statements are “based on personal knowledge and direct observation by the source”; (3) whether the statements are “corroborated by evidence submitted by the probationer”; (4) whether the statements were “provided under circumstances … support[ing] the veracity of the source …”; and (5) whether the statements come from “a disinterested witness.” Mass. Ann. Laws Court Rules, District Court Rules for Probation Violation Proceedings, at 95-96 (LexisNexis 2011-2012).  However, it is not imperative that all criteria are met to establish substantial reliability.

In this particular case, the victim was the defendant’s girlfriend.  The victim reported the alleged abuse by the defendant both through an affidavit (209A) for restraining order and report of violence directly to the police on the date of the incident.  When the police responded to the scene shortly after the incident, the officer’s report specified visible evidence of abuse and indicated that the victim was transported by ambulance to a local hospital.  Later, at the probation revocation hearing, the victim submitted a notarized letter indicating that she did not wish to move forward with the case and wished the court to reinstate the Defendant’s probation in lieu of violating the Defendant and sending him to jail.  The victim insinuated her intent not to cooperate and thus was not present at the hearing.  Additionally, the Court concluded that the officer’s absence was merited due to late notice of hearing and an appropriate medical excuse.  Submitted into evidence at the hearing was the 209A Affidavit of the victim, police report, testimony of the probation officer regarding his conversation with the reporting officer shortly after the incident and the notarized letter of the victim.

The Appeals Court provided the following explanation in support of their decision to uphold the revocation:

In these circumstances, the hearsay information satisfies the criteria of substantial reliability prescribed by the Durling decision and by rule 6(b) of the District Court Rules for Probation Violation Proceedings. The G.L. c. 209A affidavit is “factually detailed, rather than generalized and conclusory,” as required by criterion one of the rule. The statements of the same affidavit are “based on personal knowledge and observation by the source,” as required by criterion two of the rule. The statements arose “under circumstances that support the veracity of the source,” as required by criterion four of the rule: that is, the circumstances consisted of the submission of a formal c. 209A complaint to a judge on the day following an alleged battery. The statements of the police incident report originated from “a disinterested witness,” as required by criterion five of the rule. See commentary to rule 6(b), supra. The incident report qualifies under the Durling standard of trustworthiness (a) because it contains a percipient observation by the police author of the bruises and bloody lip of the girlfriend, and (b) because the creation of a false police report would carry serious sanctions for the officer. 407 Mass. at 121. Finally, the girlfriend’s subsequent letter did not contradict or in any way revise the specific allegations of her c. 209A affidavit.

If you are facing a Probation Surrender Hearing in Newburyport District Court, Haverhill District Court, Lawrence District Court or other criminal court in Essex County, contact experienced criminal lawyer Kristen F. Bonavita.  Criminal Attorney Bonavita maintains an office in Newburyport, MA and can be reached by phone at (978) 376-6746 or by email Kristen@bonavitalawoffice.com.