D.C. Circuit Discusses Split Re Use of Hearsay Evidence in Decision to Revoke Parole

Per Singletary v. Reilly, --- F.3d ---, 2006 WL 1867227 (July 7, 2006):

Parole revocation violates due process if the decision is “either totally lacking in evidentiary support or ··· so irrational as to be fundamentally unfair.” Duckett v. Quick, 282 F.3d 844, 847 (D.C.Cir.2002). In Crawford v. Jackson, 323 F.3d 123, 128 (D.C.Cir.2003), we found that “[r]eliance on hearsay in parole revocation hearings is not per se impermissible.” However, “the use of unsubstantiated or unreliable hearsay would certainly eviscerate the safeguards guaranteed by Morrissey and Gagnon.” Id. (internal quotation marks and ellipses omitted). Rather than focusing on whether evidence would be admissible at a criminal trial, courts reviewing revocation decisions “are properly more concerned with whether the evidence considered as a whole, including the hearsay evidence, was both sufficient in quantity and reliability to ensure fundamental due process rights.” Id. We applied the Duckett standard for the sufficiency of the evidence and “follow[ed] other circuits that have examined the reliability of the particular hearsay evidence, condemning reliance on it when the court reaches a negative evaluation.” Id. at 129.

Other circuits have split on the question of whether, prior to admitting hearsay, the parole authority must make an explicit finding of good cause for not allowing a parolee to confront an adverse witness. See, e.g., Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir.1999) (“[T]he hearing officer must make an explicit, specific finding of good cause and state the reasons for that finding.”); Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.1984) (stating that no explicit finding is required when hearsay evidence “bears substantial guarantees of trustworthiness”). While we have not required an explicit finding of good cause at the hearing, we have placed the burden on the “parole authorities to ensure, before relying on hearsay, that there are sufficient indicia of reliability under the circumstances at hand to protect the prisoner's due process rights.” Crawford, 323 F.3d at 129.