ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
J. Michael Sauer George P. Sherman
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 01S02-0612-CR-495
GEORGE REYES,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Adams Circuit Court, No. 01C01-9708-CF-017
The Honorable Frederick A. Schurger, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 01A02-0510-CR-976
_________________________________
June 21, 2007
Sullivan, Justice.
Courts have adopted two principal methods for determining the admissibility of hearsay
evidence in probation revocation hearings: a “balancing test” that weighs the probationer’s inter-
est in confronting the declarant against the State’s interest in not producing same; and a “sub-
stantial trustworthiness test” that determines the reliability of the evidence. For the reasons set
forth in this decision, we adopt the substantial trustworthiness test.
Background
In 1998, a jury found Defendant George Reyes guilty of aggravated battery. Reyes’s
original sentence was corrected in 1999, when the trial court sentenced Reyes to ten years in
prison, with six years suspended, and to ten years of probation. Reyes left prison in January
2000 and began his probationary period.
One rule of probation is that a probationer may not use any drugs or other prohibited sub-
stances unless those substances are prescribed by a physician. On February 8, 2005, during the
probationary portion of Reyes’s sentence, Reyes’s probation officer filed a Violation of Proba-
tion Petition outlining various earlier probationary violations by Reyes and stating further that
Reyes had submitted a urine sample on January 18, 2005, that later tested positive for marijuana.
In an agreement with the State on August 5, 2005, Reyes admitted that he had violated
the terms of his probation when he tested positive for marijuana. The remainder of Reyes’s sus-
pended sentence was revoked (2,070 days), but Reyes was given an opportunity to serve only
1,035 days: Reyes would submit a new urine sample on the date of the agreement (August 5,
2005) and another ten days later, on August 15, 2005. If no new drug appeared when the second
urine sample was tested, and if the level of marijuana did not come back higher than in the first
test, then Reyes would not have to serve his entire suspended sentence.
Reyes submitted the first urine sample on August 5, 2005, and the second on August 16,
2005. Both samples tested positive for cocaine metabolite. On September 8, 2005, the trial court
conducted a hearing. During the hearing, the State moved to admit into evidence affidavits of
Jeff Retz, the Scientific Director at Witham Memorial Hospital Toxicology Laboratory, along
with the urinalysis test results and other related documents. Retz’s affidavits stated, in part, “It is
my opinion that George Reyes would have had to use: cocaine some time in the 72 hours prior to
collection.” (Appellant’s App. at 155, 162) (emphasis in originals). Reyes’s counsel objected to
the admission of the affidavits as hearsay and violative of Reyes’s due process right to confronta-
tion. The trial court admitted the affidavits and revoked Reyes’s probation.
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On appeal, the Court of Appeals rejected Reyes’s argument that the admission of the af-
fidavits violated Reyes’s due process right to confront a witness against him. Reyes v. State, 853
N.E.2d 1278 (Ind. Ct. App. 2006). Reyes petitioned for, and we granted, transfer. Reyes v. Sta-
te, 860 N.E.2d 599 (Ind. 2006) (table). The State did not oppose transfer; instead, it asked this
Court to clarify the standard by which a trial court should judge the admission of evidence chal-
lenged by a probationer on confrontation grounds. We now do so.
Discussion
The United States Supreme Court has held that the Due Process Clause applies to proba-
tion revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (citing Morrissey v.
Brewer, 408 U.S. 471 (1972)). But there is no right to probation: the trial court has discretion
whether to grant it, under what conditions, and whether to revoke it if conditions are violated.
Isaac v. State, 605 N.E.2d 144, 146 (Ind. 1992) (citations omitted). It should not surprise, then,
that probationers do not receive the same constitutional rights that defendants receive at trial.
Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).
The due process right applicable in probation revocation hearings allows for procedures
that are more flexible than in a criminal prosecution. Morrissey, 408 U.S. at 489; Cox, 706
N.E.2d at 550. Such flexibility allows courts to enforce lawful orders, address an offender’s per-
sonal circumstances, and protect public safety, sometimes within limited time periods. Cox, 706
N.E.2d at 550. Within this framework, and to promote the aforementioned goals of a probation
revocation hearing, courts may admit evidence during probation revocation hearings that would
not be permitted in a full-blown criminal trial. Id. at 550-51 (citing Ind. Evidence Rule 101(c)). 1
This does not mean that hearsay evidence may be admitted willy-nilly in a probation
revocation hearing. Morrissey outlined the minimum requirements to satisfy due process in a
1
Because probation revocation hearings are not criminal trials, the United States Supreme Court’s deci-
sion on the Sixth Amendment right to confrontation in criminal trials, Crawford v. Washington, 541 U.S.
36 (2004), is not implicated or discussed here. See, e.g., United States v. Kelley, 446 F.3d 688, 690-92
(7th Cir. 2006); United States v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); Marsh v. State, 818 N.E.2d
143, 146-47 (Ind. Ct. App. 2004).
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parole revocation hearing. Though the Supreme Court listed the confrontation right as one of
those minimum requirements—holding in a parenthetical that a hearing officer may only deny
the right with good cause—the Court also issued a caveat: “We emphasize there is no thought to
equate this second stage of parole revocation to a criminal prosecution in any sense. It is a nar-
row inquiry; the process should be flexible enough to consider evidence including letters, affida-
vits, and other material that would not be admissible in an adversary criminal trial.” Morrissey,
408 U.S. at 489. In Gagnon, in which the Supreme Court applied the requirements of Morrissey
to probation revocation hearings, the Court clarified the confrontation right of probationers:
“While in some cases there is simply no adequate alternative to live testimony, we emphasize
that we did not in Morrissey intend to prohibit use where appropriate of the conventional substi-
tutes for live testimony, including affidavits, depositions, and documentary evidence.” Gagnon,
411 U.S. at 782-83 n.5. Thus, in both Morrissey and Gagnon, the Supreme Court specifically
listed affidavits as a type of material that would be appropriate in a revocation hearing even if
not in a criminal trial.
We have previously acknowledged that there are multiple tests employed by courts to de-
cide whether specific hearsay evidence may be admitted without violating a probationer’s right
to confront a witness against him or her. Cox, 706 N.E.2d at 550 n.8. In Cox, we held that
“judges may consider any relevant evidence bearing some substantial indicia of reliability . . .
includ[ing] reliable hearsay,” id. at 551, but declined to adopt a particular approach to determin-
ing that reliability, id. at 550 n.8.
Courts have adopted two principal approaches to evaluating hearsay evidence in proba-
tion revocation hearings. In one, the trial court employs a balancing test that weighs the proba-
tioner’s interest in confronting a witness against the interests of the State in not producing the
witness. E.g., United States v. Martin, 382 F.3d 840, 844-45 (8th Cir. 2004). In the balancing
test, the State is required to show good cause for denying confrontation. See United States v.
Rondeau, 430 F.3d 44, 48 (1st Cir. 2005). In another test, the trial court determines whether the
evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthi-
ness. E.g., United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006). The requirement, found
in Morrissey, 408 U.S. at 489, that the trial court find “good cause” before denying the right to
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confrontation plays an explicit role when a trial court performs a balancing test; however, this
does not mean that Morrissey’s good cause requirement is not addressed in the substantial trust-
worthiness test. As discussed infra, the substantial trustworthiness test implicitly incorporates
good cause into its calculus.
The Court of Appeals applied a balancing test to the admission of Retz’s affidavits. In its
version of the test, the Court of Appeals weighed the reliability of the affidavits against the
State’s reason for failing to produce Retz at trial. Reyes, 853 N.E.2d at 1283. In other words,
the Court of Appeals both required the State to show good cause for not producing Retz at trial
and evaluated the affidavits on their own merits.
We find the substantial trustworthiness test the more effective means for determining the
hearsay evidence that should be admitted at a probation revocation hearing. The Seventh Circuit
has held that once “substantial guarantees of trustworthiness” for hearsay evidence are shown,
there is no longer a need to show good cause. Substantial trustworthiness is the equivalent of a
good cause finding in this context. Kelley, 446 F.3d at 692 (quoting Egerstaffer v. Israel, 726
F.2d 1231, 1234 (7th Cir. 1984)).
As Judge Barnes wrote in his opinion concurring in the result of Reyes, the need for
flexibility combined with the potentially onerous consequences of mandating a balancing inquiry
for every piece of hearsay evidence in every probation revocation hearing in Indiana weighs
strongly in favor of the substantial trustworthiness test over a balancing test. Reyes, 853 N.E.2d
at 1286 (Barnes, J., concurring in result) (“Even if the lab had been next door to the courthouse
. . . Retz should not be expected to spend his valuable time attending probation revocation hear-
ings to give live testimony that merely duplicates an already demonstrably reliable hearsay
statement.”). Like Judge Barnes, we see no reason to require that the State expend its resources
to demonstrate that its interest in not producing the declarant outweighs the probationer’s interest
in confronting the same every time it seeks to admit reliable hearsay evidence in a routine proba-
tion revocation hearing or, if the State fails the balancing test, expend its resources to produce a
witness (or indeed to require that witness to expend his or her time) to give routine testimony in
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that routine probation revocation hearing, when a reliable piece of hearsay evidence is available
as a substitute.
The substantial trustworthiness test also provides a clearer standard. A balancing test in
which a trial court weighs the probationer’s interest in confrontation against the State’s good
cause for not producing a witness is too unwieldy a method for everyday use in a proceeding as
common as a probation revocation hearing. The substantial trustworthiness test requires that the
trial court evaluate the reliability of the hearsay evidence. Once that determination is made, we
find it superfluous for a court to have to assess the relative weight of every reason the State
might not care to produce a witness.
Therefore, rather than require that a court make an explicit finding of good cause every
time hearsay evidence is admitted during a probation revocation hearing, we hold that the court
may instead evaluate the hearsay’s substantial trustworthiness. As the Seventh Circuit explained
in Kelley, “ideally [the trial court should explain] on the record why the hearsay [is] reliable and
why that reliability [is] substantial enough to supply good cause for not producing . . . live wit-
nesses.” Kelley, 446 F.3d at 693. If the test of substantial trustworthiness of hearsay evidence is
met, a finding of good cause has also implicitly been made.
Under the facts of this case, the trial court had sufficient information to deem Retz’s affi-
davits substantially trustworthy. 2 While the trial court’s explanation on the record of its decision
to admit the hearsay is not as detailed as we would prefer, referencing only the presence of
Retz’s curriculum vitae, the Court of Appeals observed in its opinion that Retz’s affidavits were
reliable:
Retz, who has a Bachelor of Science degree in Chemistry, has been the Scientific
Director of Witham Lab since 1992. Before he was employed at Witham Lab,
Retz was a Laboratory Supervisor for the Indiana State Department of Toxicol-
ogy. In his capacity as the Scientific Director of the lab, Retz is “familiar with the
procedures employed to ensure the chain of custody of samples, the testing of
those samples and the validity of the test procedures employed by” Witham Lab.
2
In the record, counsel and the trial court used the term “reliable,” instead of “substantially trustworthy,”
when discussing the affidavits. (Tr. at 111.)
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Retz reviewed “all of the records in this laboratory in regard to the urine sample
received which was labeled as a sample taken from: George Reyes, taken on
8/16/2005[.]” In his sworn affidavit, Retz concluded that Reyes had used cocaine
within seventy-two hours of the August 16th collection of Reyes’s urine sample.
Under these facts and circumstances, we conclude that the hearsay statement in
Retz’s sworn affidavit concerning Reyes’s cocaine use is reliable.
Reyes, 853 N.E.2d at 1283-84 (citations omitted). We agree. This evidence adequately supports
a finding that Retz’s affidavits are substantially trustworthy. See Kelley, 446 F.3d at 693 (hold-
ing record was sufficiently clear for appellate court to conclude hearsay was sufficiently trust-
worthy); United States v. Pratt, 52 F.3d 671, 675 (7th Cir. 1995) (holding trial court could have
found hearsay evidence reliable and government could have shown good cause for not producing
witnesses).
Conclusion
We affirm the holding of the Court of Appeals that Retz’s affidavits were properly admit-
ted, but hold that the trial court should have applied a test of “substantial trustworthiness” in so
doing. We summarily affirm the Court of Appeals, pursuant to Ind. Appellate Rule 58(A), as to
all other issues not addressed in this opinion.
Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., concurs in result without sepa-
rate opinion.
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