State Fails To Meet Bell Hearsay Test; Defendant’s Probation Violation Overturned

In State v. Eldert, 2015 VT 87 (June 19, 2015), the Vermont Supreme Court concluded that the trial court erroneously admitted hearsay evidence at a parole revocation hearing, and reversed in favor of the defendant.

Issue: As a condition of his Vermont probation, the defendant was not allowed to purchase, possess, or consume alcohol. For a period of a few years, supervision of the defendant’s probation was transferred to Delaware. After reviewing documents received from Delaware, the defendant’s probation officer in Vermont filed a violation of probation with the superior court. The violation complaint alleged that the defendant had consumed alcohol and thus violated his probation while in Delaware. At the merits hearing, the Vermont probation officer testified that she had viewed several documents indicating that the defendant consumed alcohol while in Vermont. However, the defendant argued that the documents lacked official seals, signatures, and were otherwise too incomplete to be reliable evidence. The State did not put on any witnesses to testify that the defendant consumed alcohol. The State argued the Delaware witnesses had no compelling interest to travel to Vermont and testify.

Holding: Although the Court noted that hearsay evidence was admissible in a probation hearing, it is only allowed for good cause. The Court cited with favor United States v. Bell, which held hearsay is admissible in probation hearings if; 1) the government’s explanation as to why live witnesses did not testify is acceptable to the court and 2) the hearsay evidence is reliable. The Court found that the State failed both prongs of the Bell test. The Court held that the State’s explanation as to why no witnesses testified was “woefully insufficient,” and cited with disapproval the State’s lack of effort in determining the availability and costs of producing the witnesses from Delaware. The Court also ruled that the hearsay evidence was not reliable since the documents lacked official seals, signatures, and adequate descriptions. On those grounds, the Court overturned the trial court’s ruling that the defendant violated his parole.