Can Hearsay Be Used to Revoke Your Supervised Release?

Not automatically. If the government wants to use hearsay to revoke your supervised release, the judge cannot just accept it. In the Tenth Circuit, the judge must first weigh your right to question the witness against the government's reasons for not bringing that witness to court.

What hearsay is

Hearsay is a statement made outside of court that is offered to prove it is true. A police report saying someone told an officer you hit them is a common example.

Your right to question witnesses at a revocation hearing

At a revocation hearing, Federal Rule of Criminal Procedure 32.1(b)(2)(C) gives you the right to "question any adverse witness unless the court determines that the interest of justice does not require the witness to appear."

The Tenth Circuit calls this a "qualified confrontation interest." It is not as strong as your right to confront witnesses at trial, but it still counts.

So when the government relies on hearsay and the witness is not there, the court must use a balancing test. It weighs your interest in questioning the witness against the government's reasons for not bringing the witness. In the court's words, the test is "aimed at weighing the defendant's interests in confronting a witness against the government's interests in foregoing the witness's appearance." United States v. Jones, 818 F.3d 1091, 1097–98 (10th Cir. 2016).

Tremale Henry's case

Tremale Henry's supervised release was revoked partly based on hearsay about an alleged assault. The district court did not do the balancing test.

The Tenth Circuit vacated the revocation and sent the case back. See United States v. Henry, 852 F.3d 1204 (10th Cir. 2017).

What to do if you face a revocation hearing

If you are facing a revocation hearing, ask whether the government's key witnesses will appear. If the case rests on hearsay, your lawyer should object and ask the court to do the balancing test on the record.

The same rule gives you other protections, too. Under Rule 32.1(b)(2), you are entitled to written notice of the alleged violation, disclosure of the evidence against you, a chance to present evidence and make a statement, and a lawyer. Ask your lawyer for the violation petition and any reports behind it, and don't discuss the allegations on recorded jail phones.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.