Tremale Henry’ supervised release was revoked in part based on hearsay statements related to an alleged assault. Hearsay is an out of court statement that is offered for the truth of the matter asserted.
Fed. R. Crim. P. 32.1(b)(2)(C) gives defendants in revocation proceedings the right to “question any adverse witness, unless the judge determines that the interest of justice does not require the witness to appear.” This rule affords defendants a “qualified confrontation interest,” the Tenth Circuit held. Thus, when the Government seeks to rely hearsay statements at a revocation hearing and where the witness is not present, the court must conduct a balancing test “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).
The lower court in Henry’s case failed to conduct this balancing test. Accordingly, the Tenth Circuit vacated and remanded the matter to district court for further proceedings. See: United States v. Henry, No. 15-6181 (10th Cir. 2017). Hearsay Statements | Alleged Assult | Supervised Release