FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY VALDIVIA, ALFRED YANCY,
and HOSSIE WELCH, on their own No. 08-15889
behalf and on behalf of the class
of all persons similarly situated, D.C. No.
Plaintiffs-Appellees, 2:94-CV-00671-
v. LKK-GGH
Eastern District of
ARNOLD SCHWARZENEGGER, California,
Governor of the State of Sacramento
California, and the
STATE OF CALIFORNIA, ORDER
Defendants-Appellants.
Filed September 28, 2010
Before: John T. Noonan, Michael Daly Hawkins, and
Milan D. Smith, Jr., Circuit Judges.
Order;
Dissent by Judge Bea
ORDER
Judge Noonan recommended granting Appellants’ Petition
for Rehearing En Banc. Judge Hawkins recommended deny-
ing the Petition. Judge M. Smith voted to deny the Petition.
The full court was advised of the Petition for Rehearing En
Banc and a judge of the court requested a vote on whether to
rehear the case en banc. The en banc call failed to receive a
majority of votes by active judges in favor of en banc consid-
eration. Fed. R. App. P. 35.
16539
16540 VALDIVIA v. SCHWARZENEGGER
The Petition for Rehearing En Banc is DENIED.
BEA, Circuit Judge, dissenting from the denial of rehearing
en banc, joined by O’SCANNLAIN, TALLMAN,
CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges:
The Supreme Court has told us the Constitution’s due pro-
cess requirements for a proper parole revocation hearing1 are
less than the requirements for a proper criminal trial. Mor-
rissey v. Brewer, 408 U.S. 471, 488-89 (1972) (stating that the
Supreme Court did not intend to “equate . . . parole revocation
to a criminal prosecution in any sense”). This only makes
sense. A parolee has already been convicted. His freedom is
a matter of grace; it is a privilege extended in an attempt to
rehabilitate him. A criminal defendant, however, is presumed
innocent; his freedom is a matter of right. His conviction
would deprive him of his liberty.
Today, the Ninth Circuit leaves in place a decision that
affords greater due process protection as to evidence offered
against parolees than as to evidence offered against criminal
defendants. Under the majority decision of the panel, nontesti-
monial hearsay evidence, which would be admissible against
a criminal defendant without any violation of the defendant’s
constitutional evidentiary rights, is inadmissible against a
parolee in a parole revocation hearing unless the State can
show “good cause” to deny the parolee his right to confronta-
tion as stated in United States v. Comito, 177 F.3d 1166 (9th
Cir. 1999).2
1
“Parole, probation, and supervised release revocation hearings are con-
stitutionally indistinguishable and are analyzed in the same manner.”
United States v. Hall, 419 F.3d 980, 985 n.4 (9th Cir. 2005).
2
The balancing test set forth in Comito—our version of “good cause”—
requires hearing officers to “weigh the [parolee’s] interest in his constitu-
tionally guaranteed right to confrontation against the Government’s good
cause for denying it” before admitting hearsay evidence at a parole revo-
cation hearing. Comito, 177 F.3d at 1170.
VALDIVIA v. SCHWARZENEGGER 16541
An example may help. Sally calls 911 and exclaims, “My
husband Bob just shot me!” At Bob’s trial for attempted mur-
der, the prosecutor calls the 911 dispatcher to testify as to
what Sally said when she called 911. Sally’s hearsay state-
ment is admissible; it is nontestimonial, so the Confrontation
Clause of the Sixth Amendment does not bar its admission.
See Davis v. Washington, 547 U.S. 813, 827-28 (2006) (hold-
ing that statements made by a domestic abuse victim to a 911
operator are nontestimonial when made during an ongoing
emergency). Further, Sally’s hearsay statement is an excited
utterance, so it is admissible under Federal Rule of Evidence
803(2).
But what if Bob were on parole when Sally called 911 and
the State simply wanted to revoke his parole? According to
the panel’s majority decision, Sally’s hearsay statement is not
admissible unless the State can show what constitutes “good
cause” in our circuit to deny Bob his right to confront Sally.
This result is odd in theory and still more odd in practice.
I thus respectfully dissent from the denial of rehearing en
banc.
I
The Due Process Clauses of the Fifth and Fourteenth
Amendments provide minimum procedures the States must
provide during parole revocation proceedings. Morrissey, 408
U.S. at 487-89. These minimum procedures are meant to “as-
sure that the finding of a parole violation will be based on ver-
ified facts.” Id. at 484. One of the minimum requirements of
due process in a parole revocation hearing is “the right [of the
parolee] to confront and cross-examine adverse witnesses.”
Id. at 489.3
3
The Morrissey Court went on to state that due process does not require
confrontation if “the hearing officer specifically finds good cause.” 408
U.S. at 489. Read in context, the requirement that the parolee must have
16542 VALDIVIA v. SCHWARZENEGGER
To determine “whether the admission of hearsay evidence
violates [a parolee’s] right to confrontation in a particular
[parole revocation] case, the court must weigh the [parolee’s]
interest in his constitutionally guaranteed right to confronta-
tion against the Government’s good cause for denying it.”
Comito, 177 F.3d at 1170. The weight of the parolee’s interest
in his due process right to confrontation depends on two fac-
tors: (1) “the importance of the hearsay evidence to the
court’s ultimate finding,” and (2) “the nature of the facts to be
proven by the hearsay evidence.” Id. at 1171. On the other
side of the balancing test, to determine whether good cause
exists, a court must look to “both the difficulty and expense
of procuring witnesses and the traditional indicia of reliability
borne by the evidence.” Hall, 419 F.3d at 988 (internal quota-
tion marks omitted).
Later, in Crawford v. Washington, 541 U.S. 36 (2004), the
Supreme Court altered the way in which the right to confron-
tation is defined under the Sixth Amendment. The Confronta-
tion Clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be con-
fronted with the witnesses against him . . . .” U.S. Const.
amend VI. The Crawford Court held that the admission of tes-
timonial out-of-court statements against a criminal defendant
violates the defendant’s rights under the Confrontation Clause
of the Sixth Amendment unless the declarant is unavailable
and the defendant had a prior opportunity to cross-examine
the declarant. 541 U.S. at 68. No Comito or other type of bal-
ancing test is applied.
However, the Confrontation Clause does not apply to the
admission of nontestimonial hearsay. United States v. Sine,
an opportunity to confront witnesses unless the hearing officer finds good
cause is applicable only if the parolee would otherwise be entitled to con-
front those witnesses. We must now read Morrissey in light of Crawford
v. Washington, 541 U.S. 36 (2004), which redefined the scope of the con-
frontation right in the constitutional context.
VALDIVIA v. SCHWARZENEGGER 16543
493 F.3d 1021, 1035 n.11 (9th Cir. 2007) (citing Whorton v.
Bockting, 549 U.S. 406, 420 (2007) (stating in dicta that,
“[u]nder Crawford, . . . the Confrontation Clause has no appli-
cation to [nontestimonial] statements and therefore permits
their admission even if they lack indicia of reliability”)). Most
hearsay exceptions cover statements that are, by their nature,
not testimonial. Crawford, 541 U.S. at 56.
Examples of nontestimonial hearsay include: statements
made to a 911 dispatcher during an ongoing emergency,
Davis, 547 U.S. at 828; public records, such as records of
conviction, United States v. Weiland, 420 F.3d 1062, 1077
(9th Cir. 2005); immigration judges’ memoranda of oral deci-
sion, United States v. Ballesteros-Selinger, 454 F.3d 973, 975
(9th Cir. 2006); warrants of deportation and birth certificates,
United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th
Cir. 2005); and applications for permanent resident status,
United States v. Marguet-Pillado, 560 F.3d 1078, 1085 (9th
Cir. 2009). Further, “[b]usiness and public records are gener-
ally admissible absent confrontation . . . because—having
been created for the administration of an entity’s affairs and
not for the purpose of establishing or proving some fact at
trial—they are not testimonial.” Melendez-Diaz v. Massachu-
setts, 129 S. Ct. 2527, 2539-40 (2009).
A criminal defendant’s right to confrontation derives from
the Confrontation Clause of the Sixth Amendment, but a
state-convicted parolee’s right to confrontation derives from
the Due Process Clause of the Fourteenth Amendment. The
due process right to confrontation under the Fourteenth
Amendment provides less protection to parolees during parole
revocation hearings than the Confrontation Clause of the
Sixth Amendment provides to defendants during criminal tri-
als. See Morrissey, 408 U.S. at 488-89.
That does not mean the term “confrontation” should be
interpreted differently in the Sixth Amendment context than
it is in the Fourteenth Amendment context. Rather, the differ-
16544 VALDIVIA v. SCHWARZENEGGER
ence between the right to confrontation guaranteed by the
Sixth Amendment and the right to confrontation guaranteed
by the Fourteenth Amendment is whether the right is absolute.
The Confrontation Clause of the Sixth Amendment provides
an absolute bar to the admission of testimonial out-of-court
statements unless the declarant is unavailable and the defen-
dant had a prior opportunity to cross-examine the declarant.
Crawford, 541 U.S. at 68. The due process right to confronta-
tion under the Fourteenth Amendment, on the other hand, is
not absolute. It is subject to the hearing officer’s discretion
where there are specific good reasons for requiring confronta-
tion. Morrissey, 408 U.S. at 489.
The purpose of the right to confrontation—whether under
the Sixth or Fourteenth Amendment—“is to ensure reliability
of evidence.” Crawford, 541 U.S. at 61; see Morrissey, 408
U.S. at 484 (explaining that the goal of the due process right
to confrontation is “to assure that the finding of a parole vio-
lation will be based on verified facts”). Further, the right to
confrontation—whether under the Sixth or Fourteenth
Amendment—“applies to ‘witnesses’ against the accused.”
Crawford, 541 U.S. at 51; see Morrissey, 408 U.S. at 489
(explaining that the due process right to confrontation applies
to “adverse witnesses”). Because of the these similarities,
“confrontation” should be interpreted to have the same mean-
ing under the Fourteenth Amendment as it does under the
Sixth Amendment.
Now criminal defendants have an argument that Valdivia
requires us to extend Comito balancing to criminal trials—not
as a right of confrontation, but as a due process right. That is,
if the Due Process Clause of the Fourteenth Amendment guar-
antees to parolees the right to have a hearing officer conduct
the Comito balancing test before he admits nontestimonial
evidence, surely a criminal defendant, who has an even
greater liberty interest, has a due process right to have a trial
judge conduct the Comito balancing test before he admits the
same evidence.
VALDIVIA v. SCHWARZENEGGER 16545
Crawford’s elucidation of the limits of the Confrontation
Clause should apply with equal force to the due process right
to confrontation under the Fourteenth Amendment. Where
Crawford permits the admission of evidence in a criminal
trial, the evidence should necessarily be admissible in a parole
revocation hearing. The panel’s holding otherwise allows a
hearing officer to exclude from a parole revocation hearing,
based on the State’s failure to show good cause for failure to
present the witness in court, the same evidence that would be
admissible without a showing of good cause to prove guilt at
a criminal trial. Where Crawford would bar the admission of
evidence in a criminal trial the evidence would not be admis-
sible in a parole revocation hearing unless the government
could show specific good reasons for not requiring confronta-
tion.4 Morrissey, 408 U.S. at 484, 489. Because this interpre-
tation of the right to confrontation provides no greater
protection to parolees in parole revocation hearings than to
defendants in criminal trials, it is consistent with Morrissey.
This result is also consistent with Comito. The Comito bal-
ancing test applies only where the admission of hearsay evi-
dence would implicate a parolee’s right to confrontation.
Comito, 177 F.3d at 1170. Because not every hearsay state-
ment is testimonial, not every such statement implicates a
parolee’s right to confrontation. Thus, a hearing officer should
not apply the Comito balancing test to all out-of-court state-
ments proffered by the government to prove the matter
asserted during a parole revocation hearing, as the panel opin-
ion would require. Rather, a hearing officer should apply the
Comito balancing test only when the government proffers tes-
timonial out-of-court statements. If the government proffers
nontestimonial out-of-court statements, the right to confronta-
4
Although the Comito balancing test would apply to all testimonial
hearsay evidence, evidence that falls within “long-standing exceptions to
the hearsay rule,” and would be admissible in a criminal trial, “should sat-
isfy the lesser standard of due process accorded [a parolee] in a revocation
proceeding.” Hall, 419 F.3d at 987.
16546 VALDIVIA v. SCHWARZENEGGER
tion is not implicated and the Comito balancing test is inapplica-
ble.5 Confrontation is required only as to testimonial
evidence; it is not required as to nontestimonial evidence.
II
The panel majority opinion also creates a direct conflict
with the Second Circuit. The Second Circuit has developed a
two-part test to analyze the admissibility of hearsay evidence
in a parole revocation hearing. United States v. Williams, 443
F.3d 35, 45 (2d Cir. 2006). Where the government proffers
hearsay that would be inadmissible under an “established
exception to the hearsay rule,” the district court must “deter-
mine whether good cause exists to deny the defendant the
opportunity to confront the adverse witness.” Id. To make that
determination, the court must balance “the defendant’s inter-
est in confronting the declarant” against “the government’s
reasons for not producing the witness and the reliability of the
proffered hearsay.” Id. This balancing test is similar to the
Comito balancing test. However, where the government prof-
fers hearsay that would be admissible in a criminal proceed-
ing under an “established exception to the hearsay rule,” no
such “good-cause analysis” is required. Id. The Valdivia
majority opinion directly conflicts with this rule.
The Second Circuit’s approach to the admission of hearsay
statements in parole revocation hearings is more consistent
with Morrissey than is the panel’s majority approach, because
the Second Circuit does not require hearing officers to apply
a Comito-like balancing test to all hearsay evidence the gov-
ernment proffers in a parole revocation hearing. Thus, in most
instances, the Second Circuit does not provide parolees with
greater confrontation rights to bar proffered evidence than
5
Of course, Comito did not draw a distinction between testimonial and
nontestimonial hearsay. But that is attributable to the fact Comito was
decided before Crawford redefined what confrontation means in the con-
stitutional context.
VALDIVIA v. SCHWARZENEGGER 16547
criminal defendants have. Criminal defendants have no right
to confrontation or to bar admission of evidence when the
government proffers nontestimonial hearsay, admissible under
a hearsay exception, during a criminal trial. Similarly, under
the Second Circuit’s approach, parolees have no right to con-
frontation or to bar admission of evidence where the govern-
ment proffers evidence that falls within an “established
exception” or “firmly rooted” exception to the hearsay rule.
These two inquiries—whether a statement is testimonial and
whether a statement falls within an established hearsay
exception—often overlap, because most established hearsay
exceptions cover statements that are nontestimonial in nature.
See Crawford, 541 U.S. at 56.
However, in some instances, the Second Circuit’s approach
may provide parolees with greater confrontation rights than
criminal defendants. For example, a statement that is nontesti-
monial and does not fall within a firmly rooted hearsay excep-
tion (e.g., the residual exception, Federal Rule of Evidence
807) would not raise any Confrontation Clause issues at a
criminal trial, but the Second Circuit would still require the
government to show good cause for not allowing confronta-
tion with respect to the same statement in a parole revocation
hearing. Therefore, even though the Second Circuit’s
approach is more consistent with Morrissey than the panel’s
approach, there are still situations in which the Second Circuit
does create a barrier to the admission of hearsay statements in
a parole revocation hearing that is higher than the constitu-
tional barrier to the admission of the same statements in a
criminal trial.
A second problem with the Second Circuit’s approach is
that it requires hearing officers to determine which state hear-
say exceptions are “firmly rooted” or “established.” Although
courts were required to make such determinations before
Crawford, the only question courts are now required to
answer with respect to the Confrontation Clause of the Sixth
16548 VALDIVIA v. SCHWARZENEGGER
Amendment is whether the hearsay was testimonial. See
Crawford, 541 U.S. at 60, 68-69.
Rather than breathe life into the practice of determining
which state hearsay exceptions are “firmly rooted” or “estab-
lished,” Crawford’s test—whether the hearsay evidence is tes-
timonial or not—should be used to determine whether a
hearing officer in a parole revocation hearing must apply the
Comito balancing test. Hearing officers can rely on post-
Crawford cases to determine whether hearsay evidence is tes-
timonial.
III
The panel opinion conflicts with Morrissey by providing
parolees with greater rights than the Constitution affords
criminal defendants. Neither the Constitution nor common
sense requires this result. For these reasons, I respectfully dis-
sent from the order denying rehearing en banc.