State v. Martin ( 2022 )

653
Argued and submitted May 3; decision of Court of Appeals and judgment of
circuit court affirmed December 30, 2022
STATE OF OREGON,
Respondent on Review,
v.
DEANGELO FRANKLIN MARTIN,
Petitioner on Review.
(CC 18CR25299, 18CR31500)
(CA A169801 (Control), A169803)
(SC S068859)
522 P3d 841
In a probation revocation hearing, the state sought to introduce a recording
of the victim’s call to 9-1-1 to show that defendant violated a no-contact condition
of probation. Defendant objected, citing his right to confrontation under the Due
Process Clause of the Fourteenth Amendment. The trial court balanced defen-
dant’s interest in confrontation against the state’s showing of good cause and
ruled that the evidence could be admitted. The Court of Appeals affirmed, con-
cluding that balancing was unnecessary because, when evidence falls within a
firmly rooted exception to the rule against hearsay, admission of such evidence
in a probation revocation proceeding does not violate a defendant’s due process
confrontation interest. Held: In a probation revocation hearing, a defendant’s due
process right to confront adverse witnesses may give way to a showing of good
cause for not allowing confrontation. Those interests should be balanced even
when the evidence falls within a firmly rooted hearsay exception. In this case, the
reliability of the evidence and the state’s reasonable efforts to locate the witness
established good cause that outweighed defendant’s interest in confrontation.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
En Banc
On review from the Court of Appeals.*
Stacy M. Du Clos, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
Lauren P. Robertson, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
______________
* On appeal from the Multnomah County Circuit Court, Shelley D. Russell,
Judge. 313 Or App 578, 496 P3d 1077 (2021).
654 State v. Martin
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Ryan T. O’Connor, O’Connor Weber LLC, Portland,
filed the brief for amicus curiae Oregon Criminal Defense
Lawyers Association. Also on the brief were Rosalind M.
Lee, Rosalind M. Lee LLC, Eugene, and Nora Coon, Salem.
GARRETT, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Cite as 370 Or 653 (2022) 655
GARRETT, J.
Under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, individuals
on parole or probation are entitled to certain procedural
safeguards in revocation proceedings, including the right
to confront adverse witnesses. That right may be over-
come, however, by a showing of good cause for not allowing
confrontation.
This case concerns the test that applies to the ques-
tion whether the government has established good cause.
Defendant argues that his due process rights were violated
when the trial court ruled that hearsay evidence—a record-
ing of the victim’s phone call to 9-1-1—was admissible to
demonstrate that defendant had contacted the victim in
violation of the terms of his probation. Defendant argues
that the state did not show good cause for failing to pro-
duce the victim at the hearing, and that his confrontation
right was thus violated. The trial court revoked probation,
and the Court of Appeals affirmed. We allowed review and,
for the reasons explained below, we affirm, but on different
grounds than the Court of Appeals.
I. BACKGROUND
The facts relevant to our review are primarily pro-
cedural and are undisputed.
Defendant was serving a sentence of supervised
probation for several domestic violence crimes committed
against his girlfriend. One condition of his probation was
that he was prohibited from contacting the victim. Defendant
violated that condition, leading the victim to call 9-1-1 and
ask for help.
At a probation revocation hearing, the state informed
the trial court that the state had been unable to locate the
victim—who was unhoused at the time of the hearing and
had no stable address or phone number—despite numerous
attempts to contact her. The state sought to admit a record-
ing of the victim’s 9-1-1 call as evidence that defendant
had violated the no-contact provision. Defendant objected,
asserting that he had the right to confront the victim under
the Due Process Clause of the Fourteenth Amendment.
656 State v. Martin
Defendant asked the trial court to apply the test
from State v. Wibbens, 238 Or App 737, 741-42, 243 P3d
790 (2010), and State v. Johnson, 221 Or App 394, 190 P3d
455, rev den, 345 Or 418 (2008), (the “Johnson test”), which
weighs the probationer’s interest in confrontation against
the government’s good cause for denying it. The state agreed
that Johnson provided the relevant test, which requires the
trial court to weigh two factors bearing on the strength of
defendant’s confrontation interest (the importance of the
evidence, and the probationer’s opportunity to refute the evi-
dence) against two factors bearing on the state’s demonstra-
tion of good cause (the difficulty and expense of obtaining
the witness, and the traditional indicia of reliability borne
by the evidence).
The trial court ruled that the first, third, and fourth
factors weighed in favor of the state, while the second factor
favored defendant, and concluded that the 9-1-1 recording
was admissible. It then ruled that defendant had violated
his probation condition, and it revoked probation.1
On appeal, defendant argued that the trial court
had misapplied the factors because the factors weighing in
favor of defendant—the importance of the evidence (con-
ceded by the state on appeal2) and the opportunity to refute
the evidence—established a strong interest in confrontation
that was not outweighed by the state’s argument for good
cause. The state argued that the trial court’s ruling was cor-
rect under Johnson, but the state alternatively argued that
no balancing was even required in this instance because the
9-1-1 recording qualified for the “excited utterance” excep-
tion to the hearsay rule. The state noted that, in Johnson,
the Court of Appeals had left open the question of whether
the four-factor balancing test must be applied to evidence
that falls within a well-established hearsay exception. See
221 Or App at 403-04.
1
After the court ruled that the recording of the 9-1-1 call was admissible,
defendant stipulated to the violation of the no-contact condition. As a result, the
recording was never admitted and is not in the record. The only description of the
recording is the state’s characterization of it to the trial court and defendant’s
lack of objection that it constitutes an excited utterance.
2
On appeal, the state conceded that the trial court incorrectly viewed the
first factor, the importance of the evidence, as favoring the state. Thus, the par-
ties agree that the first factor weighs in favor of defendant.
Cite as 370 Or 653 (2022) 657
A divided panel of the Court of Appeals affirmed.
State v. Martin, 313 Or App 578, 496 P3d 1077 (2021). The
majority resolved the question left open in Johnson by con-
cluding that, when evidence falls within a “firmly rooted”
exception to the rule prohibiting hearsay, the inherent reli-
ability of the evidence is sufficient to satisfy due process
without balancing. Id. at 583. The court noted that, because
such a statement is “already considered so trustworthy that
adversarial testing can be expected to add little to its reli-
ability,” “the due process concerns which ordinarily favor
confrontation—and thus Johnson balancing—are not pres-
ent.” Id. at 582, 583.
Judge James dissented, concluding that no categor-
ical exception to the balancing test is appropriate for “firmly
rooted” hearsay exceptions. Id. at 589 (James, J., dissent-
ing). The dissent reasoned that the due process confronta-
tion right in a probation hearing “serves a purpose beyond
the simple search for reliability,” id., and that due process
requires a case-by-case analysis of the circumstances that is
inconsistent with the rule that the majority adopted. Id. at
590 (citing County of Sacramento v. Lewis, 523 US 833, 850,
118 S Ct 1708, 140 L Ed 2d 1043 (1998)).
We allowed defendant’s petition for review.
II. ANALYSIS
A. Standard of Review
The ultimate decision to revoke probation is gen-
erally a matter of discretion for the trial court. See ORS
137.545(5) (providing that a court “may” revoke probation);
see also Barker v. Ireland, 238 Or 1, 4, 392 P2d 769 (1964)
(“At [a probation revocation] hearing it is the duty of the
trial court to decide what the facts are and then to exercise
its discretion in one of two ways. The court may permit the
[probationer] to remain on probation, or may revoke the pro-
bation and order the [probationer] held for the execution of
any sentence provided by law.”). However, the revocation in
this case followed the trial court’s conclusion that hearsay
evidence could be admitted without violating defendant’s
confrontation rights under the Due Process Clause of the
Fourteenth Amendment. That legal conclusion is one that
658 State v. Martin
we review for legal error—his rights were either violated
or not. See State v. Washington, 355 Or 612, 646, 330 P3d
596, cert den, 574 US 1016 (2014) (“To the extent that the
trial court’s [discretionary] ruling was predicated on a con-
clusion of law, however, we review that aspect of the deci-
sion for errors of law.”); cf. State v. Rogers, 330 Or 282, 312,
4 P3d 1261 (2000) (explaining that, when this court reviews
admissibility rulings with only one legally correct outcome,
it reviews for legal error).
B. Legal Background
Under the Fourteenth Amendment, a probationer
has a due process right to confront and cross-examine a wit-
ness in a probation revocation proceeding, unless the state
demonstrates good cause to deny that right. Morrissey v.
Brewer, 408 US 471, 489, 92 S Ct 2593, 33 L Ed 2d 484 (1972)
(setting forth the procedural due process requirements for
revoking parole); Gagnon v. Scarpelli, 411 US 778, 782, 93
S Ct 1756, 36 L Ed 2d 656 (1973) (extending the reason-
ing and procedural safeguards from Morrissey to probation
revocation).
Because this court has not previously discussed a
probationer’s confrontation right at a revocation hearing,
we begin with the principles that govern the issue, which
are drawn from the Supreme Court’s decisions in Morrissey
and Gagnon. In Morrissey, the Court held that a person on
parole has a liberty interest that implicates the Due Process
Clause; thus, the state cannot revoke parole and return an
individual to custody without meeting certain requirements
of procedural fairness. 408 US at 482, 487-89.
Among those requirements is that the revoca-
tion decision be preceded by a hearing, if requested by the
parolee:
“This hearing must be the basis for more than determining
probable cause; it must lead to a final evaluation of any
contested relevant facts and consideration of whether the
facts as determined warrant revocation. The parolee must
have an opportunity to be heard and to show, if he can, that
he did not violate the conditions, or, if he did, that circum-
stances in mitigation suggest that the violation does not
warrant revocation.”
Cite as 370 Or 653 (2022) 659
Id. at 488. The Court then concluded that, although it could
not write a “code of procedure” for the states, the “minimum
requirements” of due process include, among other things,
“the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for
not allowing confrontation).” Id. at 488-89.
The Supreme Court did not further specify how
courts should determine whether the state has established
good cause for not allowing confrontation. That question has
been addressed in numerous lower court cases, including by
our Court of Appeals in Johnson, following case law from
the Ninth Circuit. The Johnson test balances the right to
confrontation against the state’s good cause for not procur-
ing the witness. 221 Or App at 401. It does so by evaluat-
ing four factors, the first two bearing on the strength of the
probationer’s interest and latter two bearing on the state’s
showing of good cause: (1) the importance of the challenged
evidence to the court’s finding; (2) the probationer’s oppor-
tunity to refute the evidence; (3) the difficulty and expense
of obtaining witnesses; and (4) traditional indicia of reliabil-
ity borne by the evidence. Id. The Court of Appeals adopted
that test from the Ninth Circuit’s balancing test, described
in United States v. Comito, 177 F3d 1166, 1171-72 (9th Cir
1999), which further developed the Ninth Circuit’s balanc-
ing test that had been outlined in United States v. Simmons,
812 F2d 561, 564 (9th Cir 1987), United States v. Martin, 984
F2d 308, 310-13 (9th Cir 1993), and United States v. Walker,
117 F3d 417, 420 (9th Cir), cert den, 522 US 961 (1997).3
The Ninth Circuit has construed the due process
confrontation right as “requiring that [a probationer] receive
a fair and meaningful opportunity to refute or impeach the
evidence against him in order ‘to assure that the finding
of a * * * violation will be based on verified facts.’ ” Martin,
984 F2d at 310 (quoting Morrissey, 408 US at 484). It has
also described the purpose of the due process confronta-
tion right as a means for ensuring that the hearing officer
3
The Ninth Circuit articulates the factors slightly differently from the
Court of Appeals: (1) “the importance of the hearsay evidence to the court’s ulti-
mate finding”; (2) “the nature of the facts to be proven by the hearsay evidence”;
(3) the “inconvenience or expense” of procuring the witness; and (4) the tradi-
tional “indicia of reliability.” Comito, 117 F3d at 1171-72.
660 State v. Martin
makes a discretionary revocation decision based on an accu-
rate understanding of the behavior constituting a violation
while also maintaining the flexibility that is the corner-
stone of procedural due process in administrative proceed-
ings. Martin, 984 F2d at 313-14; id. at 311 (“[S]ufficient
good cause in one set of circumstances may be insufficient
in another.”). It has explained that Morrissey and Gagnon
together “delineate a process of balancing the probationer’s
right to confrontation against the [g]overnment’s good cause
for denying it.” Simmons, 812 F2d at 564. It has also empha-
sized the importance of weighing the right to confrontation
under the “specific circumstances” of each case. Walker, 117
F3d at 420.
As noted, the Court of Appeals adopted the Ninth
Circuit test in Johnson. 221 Or App at 404. At the same
time, the court declined to consider whether the admissibil-
ity of evidence falling within a firmly rooted hearsay excep-
tion would, “standing alone, satisfy due-process-based con-
frontation demands.” Id. at 403-04.
In this case, the Court of Appeals did reach that
question, and it adopted a categorical exception to the bal-
ancing requirement. Martin, 313 Or App at 583. The Court
of Appeals held that, if a hearsay statement falls within a
“firmly rooted” hearsay exception, then good cause is estab-
lished and due process is satisfied; no balancing is required.
Id. The Court of Appeals justified that conclusion by explain-
ing that the reason for adversarial testing is diminished
when the statement is already considered reliable under the
rules governing hearsay and exceptions:
“A statement qualifying for a firmly rooted hearsay excep-
tion is already considered so trustworthy that adversarial
testing can be expected to add little to its reliability. * * *
“Under these circumstances, the due process concerns
which ordinarily favor confrontation—and thus Johnson
balancing—are not present. If cross examination does not
increase the reliability of a statement admitted pursuant
to a firmly rooted hearsay exception, then, by definition,
allowing confrontation would not provide defendant a
meaningful opportunity to test the veracity of the evidence
for purposes of due process.”
Cite as 370 Or 653 (2022) 661
Id. at 582-83 (internal quotation marks and citations omit-
ted). The Court of Appeals noted that several other courts
have adopted a similar categorical exception for firmly
rooted hearsay exceptions, including the Second Circuit. Id.
(citing United States v. Jones, 299 F3d 103, 113-14 (2d Cir
2002)).
In adopting that categorical exception, the Court of
Appeals parted company with the Ninth Circuit. In Valdivia
v. Schwarzenegger, 599 F3d 984 (9th Cir), cert den, 562 US
1271 (2010), the Ninth Circuit held that its multi-factor
balancing test is applicable even where the challenged evi-
dence falls within a firmly rooted hearsay exception. Id. at
990 (“Reliability does not result in automatic admissibility:
‘Simply because hearsay evidence bears some indicia of reli-
ability does not render it admissible.’ [United States v. Hall,
419 F3d 980, 988 (9th Cir), cert den, 546 US 1080 (2005).]
Therefore, evidence falling under a hearsay exception does
not circumvent the [multi-factor] balancing test. It remains
a part of it as an ‘indicia of reliability,’ and subject to good
cause analysis.”).
C. The Parties’ Arguments
On review, defendant argues that the Court of
Appeals erred in adopting a categorical rule that, in a pro-
bation revocation hearing, the admission of evidence covered
by a “firmly rooted” exception to the hearsay rule always
comports with the Due Process Clause of the Fourteenth
Amendment. Defendant contends that the ordinary bal-
ancing test under Johnson should apply, and that, under
that test, his confrontation rights were violated. The state
responds that the Court of Appeals was correct to conclude
that no balancing is necessary if evidence falls within a
firmly rooted hearsay exception; in the alternative, the state
argues that, under Johnson balancing, defendant’s confron-
tation rights were not violated. In short, we understand the
parties to agree that the “good cause” issue is ordinarily
determined by Johnson balancing; they differ only as to
whether balancing is necessary at all when the state seeks
to admit evidence that falls within a “firmly rooted” excep-
tion to the hearsay rule.
662 State v. Martin
The parties’ arguments place this court in a some-
what unusual position. As noted, this court has not previ-
ously considered which test to apply to determine whether
the state showed “good cause” for not allowing confronta-
tion. The parties themselves agree on what test ordinarily
applies to that question—the Johnson test. We are not
bound by the parties’ arguments, however, and we are hesi-
tant to decide the threshold constitutional question without
full briefing by parties who dispute it. A future litigant may
wish to raise the argument that no one makes here: namely,
that a court evaluating “good cause” should consider factors
in addition to or different than those set out in Johnson.4
Thus, we approach this case as follows. In the absence of any
argument that some other test should apply, we accept the
parties’ shared understanding that the Johnson test is appli-
cable unless, as the state argues and the Court of Appeals
held, the nature of the evidence in this case renders balanc-
ing unnecessary. The question that we resolve, therefore, is
whether, in a probation revocation hearing, good cause for
overcoming a defendant’s due process confrontation right
is necessarily established when the evidence that the state
seeks to admit is covered by a firmly rooted exception to the
hearsay rule.
4
The parties’ briefing makes clear that, although other courts to consider
the “good cause” issue have uniformly required a balancing test, they are less
uniform in their description of that test. Some courts generally describe the test
as balancing the defendant’s interest in confrontation against the state’s good
cause for not procuring the witness. See United States v. Bueno-Beltrán, 857 F3d
65, 68 (1st Cir), cert den, ___ US ___, 138 S Ct 278 (2017) (requiring courts to bal-
ance the probationer’s right to confront a witness against the state’s good cause,
which includes the reliability of the hearsay statement). Some courts emphasize
reliability as the most important factor; others divide the balancing process into
more discrete factors. See United States v. Jones, 818 F3d 1091, 1100 (10th Cir
2016) (explaining that reliability is “very important”); United States v. Doswell,
670 F3d 526, 531 (4th Cir 2012) (emphasizing that reliability is a “critical fac-
tor”); United States v. Lloyd, 566 F3d 341, 345 (3d Cir 2009) (explaining that
reliability is a “principal factor, although not the sole factor”); Comito, 177 F3d at
1171-72 (9th Cir 1999) (providing at least four factors for consideration, including
the importance of the evidence, the nature of the facts to be proven, the efforts
needed to procure the witness, and reliability of the evidence); United States v.
Zentgraf, 20 F3d 906, 909 (8th Cir 1994) (emphasizing that establishing “fixed
rules” about what constitutes “good cause” is not possible, but that good cause at
least includes why confrontation is impracticable and the reliability of the evi-
dence); United States v. Frazier, 26 F3d 110, 114 (11th Cir 1994) (indicating that
reliability is a factor separate from the right to confrontation and the govern-
ment’s good cause).
Cite as 370 Or 653 (2022) 663
D. The Due Process Confrontation Right
To answer that question, we return to what the
Supreme Court has said in its due process cases, includ-
ing Morrissey. Due process ensures that the government
cannot deprive individuals of liberty or property interests
without meeting certain procedural requirements. Mathews
v. Eldridge, 424 US 319, 332, 96 S Ct 893, 47 L Ed 2d 18(1976). Due process is “flexible”; it “calls for such procedural
protections as the particular situation demands.” Morrissey,
408 US at 481. The “touchstone of due process” is “funda-
mental fairness.” Gagnon, 411 US at 790; see also Armstrong
v. Manzo, 380 US 545, 552, 85 S Ct 1187, 14 L Ed 2d 62(1965) (“A fundamental requirement of due process is the
opportunity to be heard. It is an opportunity which must be
granted at a meaningful time and in a meaningful man-
ner.” (Internal quotation marks and citations omitted.)).
After determining that the interest at stake in a given case
is a protected liberty or property interest, the Court deter-
mines, in light of the principles of fairness and flexibility,
what process is due.
To determine what constitutes adequate process,
the Court considers three factors:
“[f]irst, the private interest that will be affected by the offi-
cial action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the prob-
able value, if any, of additional or substitute procedural
safeguards; and finally, the [g]overnment’s interest, includ-
ing the function involved and the fiscal and administra-
tive burdens that the additional or substitute procedural
requirement would entail.”
Mathews, 424 US at 335. The first factor, the private interest
affected, includes considering the length of time the interest
will be affected and the hardship imposed by deprivation
of the protected interest. Id. at 341-42. The second factor,
the fairness and reliability of existing procedures, considers
the nature of the inquiry, the types of evidence necessary
to satisfy that inquiry, and the nature of the hearing. Id. at
343-45. The third factor, the government’s interest, includes
the costs to the public of administering the process—both
the financial and administrative burdens. Id. at 347. Thus,
664 State v. Martin
the Mathews factors together balance the considerations of
administering governmental functions efficiently, having an
accurate understanding of the underlying facts, and mini-
mizing the risk of mistake—in other words, fundamental
fairness and administrative flexibility.
Those factors, grounded in the principles of fairness
and flexibility, have led to a variety of combinations of safe-
guards to protect due process—each combination tailored
to the specific needs of the situation. Possible safeguards
include notice, a hearing either prior to the deprivation or
following the deprivation, the opportunity to appear, the
opportunity to present witnesses, the opportunity to confront
adverse witnesses, the presence of counsel, a decision on the
record, a statement of reasons, an impartial decision-maker,
and a public hearing on the record. See Morrissey, 408 US
at 489. Depending on the circumstances, the required safe-
guards range from a post-hoc remedy in state court to a full
“trial-type” procedure prior to the deprivation of a protected
interest. Compare Ingraham v. Wright, 430 US 651, 683, 97
S Ct 1401, 51 L Ed 2d 711 (1977) (holding that a remedy in
state tort law alone satisfied due process for corporal punish-
ment in schools and that no notice or hearing was required),
with Wilkinson v. Austin, 545 US 209, 216, 225-26, 125
S Ct 2384, 162 L Ed 2d 174 (2005) (concluding that due pro-
cess was satisfied by written notice of the factual basis for
deprivation of a liberty interest, a pretermination hearing
that the inmate may attend, the opportunity to rebut the
factual allegations, and the opportunity to have the decision
reviewed by another official), and Goldberg v. Kelly, 397 US
254, 267-71, 90 S Ct 1011, 25 L Ed 2d 287 (1970) (requir-
ing a full trial-type hearing prior to terminating welfare
benefits).
In Morrissey, the Court conducted that analysis in
the context of parole revocation. 408 US at 488-89. That
analysis was extended to probation revocation in Gagnon.
411 US at 782. The Court grounded its analysis of what
procedures were required in the inherent flexibility of due
process:
“It has been said so often by this Court and others as not to
require citation of authority that due process is flexible and
Cite as 370 Or 653 (2022) 665
calls for such procedural protections as the particular situ-
ation demands. * * * [Due process’s] flexibility is in its scope
once it has been determined that some process is due; it is
a recognition that not all situations calling for procedural
safeguards call for the same kind of procedure.”
Morrissey, 408 US at 481. The Court proceeded to conclude
that some process was due based on the “grievous loss” to
the parolee in being returned to incarceration. Id. at 481-82.
It then analyzed the government’s interest in being able to
revoke parole if a parolee fails to comply with conditions
of parole, along with the risk of erroneous revocation. See
id. at 483. The Court concluded that the government’s inter-
est is important, but, more importantly, the government
has no interest in revoking parole without any procedural
safeguards. Id. at 483-84 (explaining that, rather, society
has “an interest in not having parole revoked because of
erroneous information or because of an erroneous evalua-
tion of the need to revoke parole, given the breach of parole
conditions”).
Based on that analysis of the interests and practi-
cal considerations of parole revocation, the Court summa-
rized: “What is needed is an informal hearing structured
to assure that the finding of a parole violation will be based
on verified facts and that the exercise of discretion will be
informed by an accurate knowledge of the parolee’s behav-
ior.” Id. at 484. The Court next explained the due process
safeguards that are necessary at each stage of parole revo-
cation. Id. at 485-89. The parolee must have the opportu-
nity, if desired, for a hearing prior to the final revocation
decision. Id. at 487. At that hearing, the parolee must have
an opportunity to be heard and to rebut the allegations, or to
provide mitigating circumstances that suggest revocation is
not warranted. Id. at 488. The hearing must happen within
a “reasonable time” of being taken into custody. Id. The
Court then provided six minimum safeguards that must be
provided at a revocation hearing: written notice; disclosure
of evidence; opportunity to be heard in person and present
witnesses and documentary evidence; the right to confront
adverse witnesses unless good cause for not allowing con-
frontation is found; a “neutral and detached” hearing body;
666 State v. Martin
and a written statement of evidence relied on and reasons
for revocation. Id. at 489.
Having reviewed the principles above, the flexible
nature of procedural due process, the “touchstone” of funda-
mental fairness, and the specific goal of preventing errone-
ous revocations of parole and probation, we are persuaded
that, under Morrissey, a probationer’s interest in confron-
tation should be balanced against the state’s good cause for
not producing a witness, regardless of whether the evidence
falls within a firmly rooted hearsay exception. Like the
Ninth Circuit, we conclude that, although strong indicia of
evidence’s reliability will weigh heavily in favor of finding
good cause, reliability is but one factor in the analysis—
balancing remains appropriate. See Valdivia, 599 F3d at
990.
Our conclusion is driven by the nature of a proba-
tion revocation decision. As the Supreme Court was care-
ful to observe in Morrissey, such a decision has two discrete
components: the first factual, the second discretionary. 408
US at 479-80 (“The first step in a revocation decision thus
involves a wholly retrospective factual question: whether
the parolee has in fact acted in violation of one or more con-
ditions of his parole. Only if it is determined that the parolee
did violate the conditions does the second question arise:
[S]hould the parolee be recommitted to prison or should
other steps be taken to protect society and improve chances
of rehabilitation?”).
It is true, as the state points out, that, when describ-
ing the requirements of due process, the Court in Morrissey
highlighted the importance of avoiding the risk of error by
ensuring that decisions are based on “verified facts.” Id. at
484. Relying on that principle, the state reasons that evi-
dence qualifying for a “firmly rooted hearsay exception” is
already so reliable that the opportunity for confrontation
cannot be expected to affect its veracity.
However, the Supreme Court also observed repeat-
edly that a revocation decision consists of more than a fac-
tual determination about whether conditions were violated.
Id. at 484 (“What is needed is an informal hearing structured
Cite as 370 Or 653 (2022) 667
to assure that the finding of a parole violation will be based
on verified facts and that the exercise of discretion will be
informed by an accurate knowledge of the parolee’s behavior.”
(Emphasis added.)); see also id. at 488 (“[The hearing] must
lead to a final evaluation of any contested relevant facts
and consideration of whether the facts as determined war-
rant revocation. The parolee must have an opportunity to be
heard and to show, if he can, that he did not violate the con-
ditions, or, if he did, that circumstances in mitigation suggest
that the violation does not warrant revocation.” (Emphases
added.)).
In light of that discretionary component of the revo-
cation decision, the presumed veracity of the evidence show-
ing that conditions were violated does not completely resolve
the question whether a probationer should have the opportu-
nity to confront an adverse witness. As the Supreme Court
noted in Morrissey, it may be equally important to a pro-
bationer to have the opportunity to explain “circumstances
in mitigation.” Id. at 488. The need for “fundamental fair-
ness” in affording that opportunity, if desired, calls for the
flexible approach that the Court described in Morrissey. We
conclude that, under that approach, it is always appropri-
ate to consider whether good cause exists for not allowing
confrontation.
It is for those reasons that we also reject the state’s
argument that requiring balancing in this context would
improperly elevate a probationer’s rights above those enjoyed
by a defendant in a criminal trial. The state reasons that
criminal defendants enjoy the “full panoply” of constitu-
tional protections at trial, including the Sixth Amendment
right to confront witnesses, yet that right does not preclude
admission of an excited utterance during a 9-1-1 call. The
state correctly explains that the Sixth Amendment right
to confrontation applies only to testimonial statements.
See Crawford v. Washington, 541 US 36, 51, 124 S Ct 1354,
158 L Ed 2d 177 (2004) (holding that the Sixth Amendment
Confrontation Clause applies only to testimonial statements,
defined as a “solemn declaration or affirmation made for the
purpose of establishing or proving some fact”). The state
notes that an excited utterance in a 9-1-1 recording has been
668 State v. Martin
deemed nontestimonial, and thus, the Sixth Amendment
does not preclude its admission in a criminal trial. See
Davis v. Washington, 547 US 813, 826-28, 126 S Ct 2266, 165
L Ed 2d 224 (2006) (concluding that statements made in a
9-1-1 call during an ongoing emergency were not “testimo-
nial” under Crawford). Thus, the state contends, requiring
a “good cause” showing to admit an excited utterance over
a confrontation-based objection does not make sense in a
probation revocation proceeding, where the “full panoply” of
constitutional rights is not present to begin with.
Although we agree with the state that, under
Crawford and Davis, the Sixth Amendment would allow the
admission of the 9-1-1 recording in a criminal trial with-
out a showing of good cause, we disagree that that fact dis-
poses of the Fourteenth Amendment Due Process issue in
this case. Those respective constitutional protections arise
in different settings, serve different purposes, and require
different analyses.
The “full panoply” of rights at trial includes, among
others, the standard of proof beyond a reasonable doubt and
the Sixth Amendment rights of confrontation, an impar-
tial jury, a speedy and public trial, assistance of counsel,
and notice of the charges against the accused. US Const,
Amend VI. The purpose of the Sixth Amendment right to
confrontation is primarily to prohibit ex parte interrogations
as evidence against the accused. See Crawford, 541 US at
50. The other rights enshrined in the Sixth Amendment
further similar goals—preventing specific harms that had
existed at some time in the English or early American legal
systems. See, e.g., McNeil v. Wisconsin, 501 US 171, 177,
111 S Ct 2204, 115 L Ed 2d 158 (1991) (“The purpose of the
Sixth Amendment counsel guarantee * * * is to ‘protec[t] the
unaided layman at critical confrontations’ with his ‘expert
adversary,’ the government.” (Alteration in original.)).
Those are protections that are generally not avail-
able in probation revocation proceedings. A probation revo-
cation proceeding is not tried to a jury, and it requires only
that the state prove the probation violation by a preponder-
ance of the evidence, not beyond a reasonable doubt. State v.
Donovan, 305 Or 332, 335, 751 P2d 1109 (1988). The state is
Cite as 370 Or 653 (2022) 669
not constrained by the rules of evidence that apply at trial;
hearsay is admissible unless it violates the Fourteenth
Amendment confrontation right. See OEC 101(2)(e) (stating
that the rules of evidence do not apply to probation revoca-
tion except the rules regarding privilege). The Fourteenth
Amendment right to confront witnesses does exist as a pro-
cedural due process safeguard, but it gives way to a showing
of good cause. See Morrissey, 408 US at 489.
As a result, it should be no surprise that the Court’s
due process confrontation analysis is altogether distinct
from its Sixth Amendment Confrontation Clause analysis.
The clauses apply to very different procedures: the deter-
mination of guilt, in a criminal trial, versus the discre-
tionary decision to revoke parole or probation. Contrary
to the state’s argument, therefore, a categorical exception
for “firmly rooted” hearsay exceptions is not necessary in
order to respect the difference between the “greater” rights
afforded at trial and the “lesser” rights afforded in proba-
tion revocation. Rather, the lesser degree of constitutional
protection in probation and parole revocation proceedings
is already reflected in the flexibility and interest-balancing
that the Supreme Court has prescribed for those proceed-
ings, in which a defendant’s interest in confrontation, for
example, may give way to a showing of good cause. That
such balancing might result, in particular circumstances,
in the exclusion of evidence that would be admitted in a
different proceeding may be unusual, but it is not illogical
given the different constitutional interests at stake.
In light of the purposes that a balancing test serves
in providing a trial court with the flexibility needed to
receive evidence and ultimately rule in a manner that com-
ports with fundamental fairness, we conclude that the test
should be applied even to evidence that has strong indicia of
reliability. Of course, the reasons that the Court of Appeals
highlighted for adopting a per se exception for “firmly
rooted” hearsay exceptions may well often lead to the same
result under a balancing test; the reliability of the evidence
will weigh heavily in the state’s favor (and correspondingly
make it more difficult for a defendant to demonstrate how
confrontation would be helpful). The presumed reliability of
670 State v. Martin
an “excited utterance” is, certainly, a factor that will weigh
in favor of admission over a defendant’s objection, and,
even under Johnson balancing, such evidence is likely to be
admitted in most cases.5 However, we do not see a reason
to completely eliminate consideration of other factors that
might lead to a different conclusion.
Having rejected the per se rule that the state advo-
cates, we turn to whether the state established good cause
for the admission of the 9-1-1 recording over defendant’s
objection. Applying the Johnson factors on which both par-
ties rely, we conclude that it did.
The first two factors under Johnson—(1) the impor-
tance of the evidence and (2) the nature of the facts to be
established, including defendant’s opportunity to refute
the evidence—relate to the strength of defendant’s interest
in confrontation. Johnson, 221 Or App at 401. The parties
agree, as do we, that the evidence was important; indeed,
the 9-1-1 recording was the only evidence that defendant
had violated the no-contact condition of his probation. The
state correctly points out, however, that the precise fact to
be established by that recording—that contact occurred—is
not particularly open to competing inferences or different
interpretations. It is true that confrontation might have
given defendant the opportunity to challenge the victim’s
description of some of the circumstances, or to provide fur-
ther context for why the contact occurred, but defendant did
not offer any contrary or mitigating information about the
contact, despite having the opportunity to do so. See id., 221
Or App at 405-06 (“[D]efendant had a full and fair opportu-
nity to contest the challenged evidence, but he did not mean-
ingfully do so.”). He did not, for example, object to the state’s
characterization of the contact as “pushing.” Taking the first
two factors together, we conclude that defendant’s interest
in confrontation was not insignificant, but not particularly
strong.
The third and fourth factors bear on the state’s
good cause for overcoming the right to confrontation. As to
5
At oral argument, the state could not identify any case where application of
a balancing test led to exclusion of “excited utterance” evidence.
Cite as 370 Or 653 (2022) 671
the third factor, the difficulty and expense of locating the
witness, the state informed the trial court that it had made
multiple attempts to locate the witness—the victim, who
did not have a stable address. The state had investigators
visit places where she was known to have spent the night
and make phone calls to numbers associated with her. It
attempted to subpoena her, but it could not locate her to
deliver the subpoena. Defendant does not dispute that those
efforts occurred, but argues that the state should have done
more, and that it should have sought a continuance to have
more time to locate the victim. On this record, the state’s
efforts were sufficient. “Good cause” does not entail exhaus-
tion of all options regardless of time and expense. See United
States v. Zentgraf, 20 F3d 906, 909 (8th Cir 1994) (explain-
ing that “good cause” cannot be described by “fixed rules,”
and that courts should look to “offers of why confrontation is
undesirable or impractical” in addition to reliability). Given
that the victim lacked either a stable residence or a reliable
means of contact, it is speculative to suppose that further
efforts would have made a difference.
The fourth factor, the traditional indicia of reliabil-
ity borne by the evidence, also weighs in favor of the state.
The 9-1-1 recording is hearsay and thus not as reliable as
other forms of evidence; on the other hand, excited utter-
ances are considered one of the most reliable forms of hear-
say. White v. Illinois, 502 US 346, 355 n 8, 112 S Ct 736, 116
L Ed 2d 848 (1992) (“The exception for spontaneous decla-
rations is at least two centuries old, and may date to the
late 17th century.” (Internal citations omitted.)). The 9-1-1
recording in this case was a call that the victim made while
under the stress of defendant attacking her. Thus, we agree
with the state that the indicia of reliability—a description of
what the victim was experiencing, while she was experienc-
ing it in the stress of the moment—further strengthen the
state’s showing of good cause.
In sum, we conclude that the state made a strong
showing of good cause under the third and fourth factors
that outweighs defendant’s modest interest in confrontation
as reflected by the first and second factors. Thus, the admis-
sion of the 9-1-1 recording at defendant’s probation revocation
672 State v. Martin
hearing did not violate his Fourteenth Amendment confron-
tation rights.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.