dissenting: I respectfully dissent from the opinion expressed today insofar as it permits the prosecution to proceed by offer of proof in pre-trial detention proceedings. I would reverse the trial court’s decision and remand for a new hearing for two reasons: first, our prior holdings in Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304 (1982) and Moody v. Cunningham, 127 N.H. 550, 503 A.2d 819 (1986) require the State to use witnesses when presenting its case; and second, an analysis of the considerations listed in Petition of Bagley, 128 N.H. 275, 285, 513 A.2d 331, 338-39 (1986) leads to the conclusion that they weigh in favor of requiring witnesses who can make meaningful the defendant’s right to confrontation.
In both Stapleford and Moody, we held that the procedures used to reimpose a suspended sentence or to revoke parole, respectively, were inadequate because the defendants did not have an opportunity to confront a State witness familiar with the events relied upon to justify a deprivation of liberty. Moody, in particular, is instructive in this regard. There, in a hearing to revoke the defendant’s parole because of alleged violations, the State’s evidence consisted solely of testimony by the parole officer concerning the *715defendant’s arrest and subsequent indictment. 127 N.H. at 552, 503 A.2d at 820. We hold that “[ a]s a general rule, then, there must be a strong preference for confrontation and cross-examination which may be abrogated only upon a specific finding of good cause for denying confrontation.” Id. at 555, 503 A.2d at 822; see also Morrissey v. Brewer, 408 U.S. 471, 487 (1972) (good cause for denying confrontation may exist when witness might be subject to harm if identity disclosed). To allow “the State to meet its burden of proof entirely by use of hearsay or substitutes for live testimony without regard for the right to confrontation would eviscerate the due process protections of Stapleford.” Id.
The majority opinion does not, in my view, distinguish persuasively the situation in Moody from the one in this case. The effect of today’s holding is to allow the State to meet its burden of proof to deprive a presumptively innocent person of liberty on the basis of hearsay evidence only, without regard for the right to confront the State’s witnesses. Moody and Stapleford specifically prevent this result. On that basis, I would reverse and remand. A liberty interest is never more important than at the points in the process where the defendant is presumed innocent.
I also would add that I do not find the majority’s analysis of Bagley convincing. Because the court holds today that the State must provide a witness who can make meaningful the defendant’s right to cross-examination under the statute, see RSA 597:6-a, VII (Supp. 1988), the additional administrative burden of requiring the State to put on such a witness prior to the defendant’s case is minimal, at best.