State v. Guthrie

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 17:01:20 2011.04.28

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-014

Filing Date: April 1, 2011

Docket No. 31,567

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

JAIME GUTHRIE,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Ricky D. Purcell, District Judge

Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Respondent

OPINION
BOSSON, Justice.

{1} Citing its recent opinion, State v. Phillips, 2006-NMCA-001, 138 N.M. 730, 126 P.3d
546, the Court of Appeals reversed Defendant’s probation revocation on due process
grounds. See State v. Guthrie, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, cert.
granted, 2009-NMCERT-003, 146 N.M. 604, 213 P.3d 508. Defendant did not have an
opportunity to cross examine his probation officer, who did not testify, and the probation
officer’s former supervisor, who did testify, had no personal knowledge of the circumstances
surrounding the alleged violations. Id. ¶¶ 3-4. The Court concluded that Defendant’s due
process right to confrontation demanded that the district judge specifically “address” the

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reasons for the absence of Defendant’s probation officer or “specifically state the reasons
that the evidence was sufficiently accurate or reliable so as to excuse [her] presence.” Id.
¶¶ 14-15.

{2} Because we conclude that Phillips established a standard that is unnecessarily
preoccupied with the reason a witness is absent, instead of considering whether
confrontation of the witness is essential to the truth-finding process in the context of
probation revocation, we overrule Phillips, 2006-NMCA-001. In so doing, we attempt to
guide the due process inquiry of our courts to focus more on the need for, and the utility of,
confrontation of a live witness in the context of a particular case. Although the district court
in the present case should have been more explicit in its reasons for relying on hearsay
evidence without confrontation, our review of the record supports the court’s decision to
revoke. Accordingly, we reverse the Court of Appeals and remand to the district court for
any remaining proceedings in furtherance of its decision to revoke Defendant’s probation.

BACKGROUND

{3} In 2005, Defendant pled guilty to three offenses and was placed on supervised
probation. Following a motion to revoke probation, Defendant agreed to attend a ninety-day
residential treatment program. Defendant’s probation officer, Cindy Chavez, signed his
order of probation.

{4} In 2006, the State filed a motion to revoke probation alleging several probation
violations, the most significant, for our purposes, being Defendant’s failure to complete the
ninety-day treatment program. The State initially subpoenaed Chavez as its only witness to
testify at the probation revocation hearing. When the hearing was rescheduled, however, the
State called Jaime Olivas, Chavez’s supervisor, to testify, instead of Chavez, who apparently
had transferred to another part of the state.

{5} During the revocation hearing, Defendant moved to dismiss because Chavez was not
available for cross examination, although she had filed the probation violation report upon
which the motion was based. Olivas apparently had little or no personal knowledge about
the case. After a brief discussion of the merits of Defendant’s hearsay and confrontation
objections, the judge reserved ruling.

{6} Olivas testified that he was a probation supervisor but that he had not directly
supervised Defendant. Olivas identified a document presented to him as a “report of
probation.” Olivas referred to documents from Defendant’s probation file, including a
probation report and a fax from Defendant’s residential treatment center, to testify that
Defendant had been discharged from the court-ordered treatment program without
completing it, had not attended other required appointments, and had not paid probation
costs.

{7} In the course of cross examining Olivas, Defendant challenged Olivas’s lack of

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personal knowledge of the alleged probation violations and the lack of explanation why
Chavez was not present at the hearing. Olivas conceded that he had not signed Defendant’s
probation report, had never met Defendant, and had no personal knowledge about Defendant.
In addition, Olivas had never spoken with anyone from the residential treatment center, nor
had he independently investigated any of the allegations against Defendant. Olivas’s
knowledge was based solely on the information he had reviewed in the probation file and the
report, including a fax from the treatment program and documents prepared by Chavez.

{8} At the conclusion of the hearing, the district court found that Defendant had violated
his probation. Importantly, the judge observed that Defendant had been arrested in Quay
County and that “we have no residential treatment center in Quay County,” the obvious
inference being that Defendant could not have successfully completed his assigned program.
The judge did not evaluate the reasons for Chavez’s absence or elaborate on his reasons for
relying on the hearsay evidence from Olivas.

{9} When Defendant appealed his probation revocation, our Court of Appeals reversed,
stating that the district court had failed to address the reasons for Chavez’s absence or “the
reasons that the evidence was sufficiently accurate or reliable so as to excuse the presence
of Ms. Chavez.” Guthrie, 2009-NMCA-036, ¶ 15. According to the Court of Appeals, the
district court’s failure to justify Chavez’s absence or make an explicit finding of reliability
deprived Defendant of his constitutionally protected opportunity to confront the principal
witness against him. Id. In so doing, the Court of Appeals relied on Phillips, 2006-NMCA-
001. See Guthrie, 2009-NMCA-036, ¶ 15. We granted certiorari to consider both this case
and the continued viability of Phillips.

DUE PROCESS RIGHT TO CONFRONTATION IN PROBATION PROCEEDINGS

{10} The U.S. Supreme Court has held that, under the conditions specified in Morrissey
v. Brewer, 408 U.S. 471, 487 (1972), “a probationer, like a parolee, is entitled to a
preliminary and a final revocation hearing.” Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).
Morrissey emphasized that revocation hearings are informal. 408 U.S. at 487. Revocation
of probation “‘deprives an individual, not of the absolute liberty to which every citizen is
entitled, but only of the conditional liberty properly dependent on observance of special
[probation] restrictions.’” Gagnon, 411 U.S. at 781 (quoting Morrissey, 408 U.S. at 480).
Because loss of probation is loss of only conditional liberty, “the full panoply of rights due
a defendant in a [criminal trial] do[] not apply.” Morrissey, 408 U.S. at 480; accord State
v. Mendoza, 91 N.M. 688, 690, 579 P.2d 1255, 1257 (1978).

{11} Morrissey instructs that due process “is flexible and calls for such procedural
protections as the particular situation demands” and “not all situations calling for procedural
safeguards call for the same kind of procedure.” 408 U.S. at 481 (emphasis added). Given
that inherent flexibility, Morrissey established minimum due process requirements for
probation revocation proceedings, including “an informal hearing structured to assure that
the finding of a [probation] violation will be based on verified facts and that the exercise of

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discretion will be informed by an accurate knowledge of the parolee’s behavior.” Id. at 484.
The hearing

must lead to a final evaluation of any contested relevant facts and
consideration of whether the facts as determined warrant revocation. The
parolee must have an opportunity to be heard and to show, if he can, that he
did not violate the conditions, or, if he did, that circumstances in mitigation
suggest that the violation does not warrant revocation.

Id. at 488 (emphasis added).

{12} Within that basic framework, the U.S. Supreme Court detailed six components of due
process in Gagnon:

‘(a) written notice of the claimed violations of (probation or) parole; (b)
disclosure to the (probationer or) parolee of evidence against him; (c)
opportunity to be heard in person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional
parole board, members of which need not be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the evidence relied on and
reasons for revoking (probation or) parole.’

411 U.S. at 786 (emphasis added) (quoting Morrissey, 408 U.S. at 489). Significantly, live
testimony of adverse witnesses, such as a probation officer, is not always required during
probation revocation hearings. We also observe that the purpose of the hearing is to evaluate
“contested relevant facts,” Morrissey, 408 U.S. at 488 (emphasis added), not every assertion
the state may put forward as part of its case for revocation. The right protected in probation
revocations is not the sixth amendment right to confrontation, guaranteed every accused in
a criminal trial, but rather the more generally worded right to due process of law secured by
the fourteenth amendment. Id. at 472, 497.

{13} In Gagnon, the Supreme Court subsequently addressed “the difficulty and expense
of procuring witnesses from perhaps thousands of miles away,” and emphasized that
alternatives to live testimony are available during probation revocation hearings. 411 U.S.
at 782 n.5.

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 substitutes for live testimony, including
affidavits, depositions, and documentary evidence. Nor did we intend to
foreclose the States . . . from developing other creative solutions to the
practical difficulties of the Morrissey requirements.

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Id. (emphasis added). The requirements were not meant to “impose a great burden on any
State's [probation or] parole system.” Morrissey, 408 U.S. at 490. Today we focus on what
Morrissey means when it entitles a probationer to confront adverse witnesses, “unless the
hearing officer specifically finds good cause for not allowing confrontation.” 408 U.S. at
489.

{14} Until now, this Court has not had occasion to apply the Morrissey requirements to
probation. Even before Morrissey, however, we recognized that the right to due process in
a probation revocation hearing means, at a minimum, notice and an opportunity to be heard.
See Ex parte Lucero, 23 N.M. 433, 438-39, 168 P. 713, 715 (1917), superseded by statute
as stated in State v. Holland, 78 N.M. 324, 431 P.2d 57 (1967). Our Court of Appeals later
adopted “reasonable certainty” as the proper standard of proof in a probation revocation
hearing. State v. Brusenhan, 78 N.M. 764, 766, 438 P.2d 174, 176 (Ct. App. 1968) (“‘[A]
violation of the conditions of probation must be established with such reasonable certainty
as to satisfy the conscience of the court of the truth of the violation. It does not have to be
established beyond a reasonable doubt.’” (quoting and adopting language from Sparks v.
State, 47 S.E.2d 678, 680 (Ga. Ct. App. 1948))).

{15} Our Court of Appeals has previously applied several of the Morrissey due process
factors. See, e.g., State v. Orquiz, 2003-NMCA-089, ¶ 15, 134 N.M. 157, 74 P.3d 91
(written notice); State v. Sanchez, 94 N.M. 521, 523, 612 P.2d 1332, 1334 (Ct. App. 1980)
(due process in light of revocation hearing delay); State v. Montoya, 93 N.M. 84, 85-86, 596
P.2d 527, 528-29 (Ct. App. 1979) (right to be heard). In addition, the Court of Appeals has
outlined certain limitations on those rights and related rights. See, e.g., State v. Sanchez,
2001-NMCA-060, ¶¶ 11-18, 130 N.M. 602, 28 P.3d 1143 (establishing due process
standards for admitting lab test results in probation revocation hearing and not requiring live
testimony); State v. DeBorde, 1996-NMCA-042, ¶ 13, 121 N.M. 601, 915 P.2d 906 (“To
require full discovery . . . would interfere with the State’s strong ‘interest in being able to
return the individual to imprisonment without the burden of a new adversary criminal trial.’”
(quoting Morrissey, 408 U.S. at 483)). In State v. Vigil, 97 N.M. 749, 751, 643 P.2d 618,
620 (Ct. App. 1982), our Court of Appeals first applied the Morrissey “right to confront and
cross-examine adverse witnesses (unless the hearing officer specifically finds good cause
for not allowing confrontation).” (Internal quotation marks omitted.)

{16} In Vigil, a confidential informant gave sworn, out-of-court statements accusing
probationer Vigil of having committed a new crime—possessing stolen property—while on
probation. 97 N.M. at 750, 643 P.2d at 619. The informant, however, refused to testify
against Vigil, leaving Vigil unable to cross-examine his accuser. Id. at 750-51, 643 P.2d at
619-20. On appeal from a revocation order, our Court of Appeals correctly held that the
right to confrontation was “violated to the extent the trial court relied on the informant's

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sealed answers in revoking probation.”1 Id. at 751, 643 P.2d at 620. We agree with the
result in Vigil.

{17} After Vigil, our Court of Appeals next applied Morrissey’s good-cause exception in
Phillips, 2006-NMCA-001, ¶¶ 11-16 and, most recently, in the present case Guthrie, 2009-
NMCA-036, ¶¶ 14-21. The Guthrie and Phillips proceedings share similar facts. First,
probation officers who had not personally supervised the probationers presented the only live
testimony in support of revocation. Compare Phillips, 2006-NMCA-001, ¶¶ 4-7, with
Guthrie, 2009-NMCA-036, ¶¶ 3-4. In both cases, the probation officer relied exclusively
on documents in the probation file, about which he had no personal knowledge, to testify
about a probationer’s failure to complete a required treatment program. Guthrie, 2009-
NMCA-036, ¶¶ 3-4; Phillips, 2006-NMCA-001, ¶¶ 4-7. Phillips was further complicated
in that the probation had been transferred to Arizona and some documents to which the
officer made reference in his testimony were from that state. 2006-NMCA-001, ¶¶ 1, 6-7.
In both cases, the state failed to enter the contents of the probation files into evidence or
submit sworn affidavits. Important to this Opinion, however, the accused probationers in
both Guthrie and Phillips never disputed the substance of the state’s evidence; namely, a
failure to complete a mandatory treatment program. In addition, neither probationer
attempted to show how he could have contested the charge of failure to complete treatment,
if only he had been offered an opportunity to cross examine the absent witness. See
generally Guthrie, 2009-NMCA-036; Phillips, 2006-NMCA-001.

{18} In each proceeding, the district court revoked probation without requiring testimony
from the probation officer having personal knowledge of the contents of the file. In Phillips,
the judge appropriately emphasized that the state’s evidence about failure to complete the
treatment program had not been rebutted and was essentially uncontested: “it was a verified
fact that [the d]efendant . . . had been in his program for less than the requisite six months.”
2006-NMCA-001, ¶ 8. As the district judge observed, Phillips was returned to custody
during the time he was supposed to be in treatment. Id.; but see id. ¶ 18 (criticizing the
district judge’s knowledge of the actual time line).

{19} Similarly in Guthrie, the district court noted that the probationer (Defendant in this
case) was arrested in Quay County at the very time he was supposed to be in treatment in
another locale. In addition to that verifiable fact, the State’s in-court testimony concerning
the fax from the treatment center was “‘probative of the fact’ that Defendant had violated the
terms of his probation by not successfully completing the residential treatment program.”
Guthrie, 2009-NMCA-036, ¶ 6. Since Defendant had not challenged the substance of the

1
Vigil cited two out-of-state cases for guidance in future probation revocation cases
where “nonconfronted information might properly be used.” 97 N.M. at 751, 643 P.2d at
620 (citing Mason v. State, 631 P.2d 1051, 1056 (Wyo. 1981) and Anaya v. State, 606 P.2d
156, 158 (Nev. 1980)). While we agree with the outcome in Vigil, we do not necessarily
follow the reasoning of the cases upon which it relied.

6
State’s evidence or provided any contrary evidence or an explanation for his absence from
the program, the court concluded that Defendant had failed to complete the program and had
violated his probation. Id. A revocation order followed.

{20} Notwithstanding the explanations by the trial judges for their findings of probation
violation, in each case the Court of Appeals reversed, holding that the probationers were
denied due process. According to Phillips, if the state had attempted to obtain the testimony
of the out-of-state witnesses but could not, or if there were another “reason on the record for
the district court to accept the documents . . . as true,” then that might have constituted good
cause. 2006-NMCA-001, ¶ 13. In the present case, the Court of Appeals looked to Phillips
to conclude that Defendant was not afforded due process, explaining that a district court can
make the necessary finding of good cause for not requiring live testimony by either “(1)
specifically addressing the State’s problems in securing the presence of the absent witness,
or (2) specifically stating the reasons that the hearsay evidence offered has particular indicia
of accuracy and reliability such that it has probative value.” Guthrie, 2009-NMCA-036, ¶
14 (citing Phillips, 2006-NMCA-001, ¶¶ 16-17).

{21} In both cases, our Court of Appeals interpreted “good cause” to mean, in large part,
a sufficient explanation for the absence of live testimony. In neither case did the Court of
Appeals consider the necessity for, and utility of, confrontation with respect to the truth-
finding process in the specific case before it. And in neither case did the Court of Appeals
attempt to assess the utility of confrontation in light of these straightforward and routine
charges—the “simple, objective, and uncontroverted fact” that probationer “either did or did
not successfully complete the program,” Bailey v. State, 612 A.2d 288, 295 (Md. 1992).

DISCUSSION

{22} Because we review a question purely of law, we review the Court of Appeals’
decision de novo while deferring to the trial court’s factual findings. See State v. Brown,
2006-NMSC-023, ¶ 8, 139 N.M. 466, 134 P.3d 753; In re Estate of Armijo, 2001-NMSC-
027, ¶ 7, 130 N.M. 714, 31 P.3d 372.

{23} Other state courts have embraced the U.S. Supreme Court directive to develop
“creative” solutions to the practical difficulties presented under the Morrissey requirements
to probation revocation. See Gagnon, 411 U.S. at 782 n.5. In the context of confrontation,
courts have adopted multi-factor tests, see, e.g., Bailey, 612 A.2d at 293-95; two-factor tests,
see, e.g., State v. Craig, 720 N.E.2d 966, 969-70 (Ohio Ct. App. 1998); “totality of the
circumstances” tests, see, e.g., Commonwealth v. Durling, 551 N.E.2d 1193, 1199-1200
(Mass. 1990); and a conditional balancing test, see, e.g., People v. Stanphill, 87 Cal. Rptr.
3d 643, 657 (Ct. App. 2009) (applying a balancing test, but if a hearsay exception such as
the spontaneous statement exception applies, then good cause exists without a balancing
test).

{24} Some courts only consider the reasons for a witness’s absence, while other courts

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only consider the “substantial trustworthiness” of the evidence presented without concerning
themselves with the absence. Compare State v. Brown, 600 S.E.2d 561, 565 (W. Va. 2004)
(finding no “good cause” when the lower court did not consider whether a lab technician was
unavailable as a witness), with Reyes v. State, 868 N.E.2d 438, 441-42 (Ind. 2007) (finding
no “good cause” for determining hearsay evidence that should be admitted at a probation
revocation hearing, despite witness availability). Several courts have adopted a balancing
test similar to the federal Ninth Circuit that weighs multiple factors. See, e.g., United States
v. Kelley, 446 F.3d 688, 692 n.2 (7th Cir. 2006); United States v. Walker, 117 F.3d 417, 420
(9th Cir. 1997); State v. Wibbens, 243 P.3d 790, 791-92 (Or. Ct. App. 2010). “The relevant
factors . . . include ‘(1) the importance of the evidence to the court's finding; (2) the
probationer's opportunity to refute the evidence; (3) the difficulty and expense of obtaining
witnesses; and (4) traditional indicia of reliability borne by the evidence.’” Wibbens, 243
P.3d at 792 (quoting State v. Johnson, 190 P.3d 455, 459 (Or. Ct. App. 2008)).

{25} Regardless of the test applied, the focus of the good-cause inquiry is “fundamental
fairness,” the “touchstone of due process.” Gagnon, 411 U.S. at 790. We find four state
court opinions particularly helpful in understanding the core policy considerations that
animate the good-cause analysis. Accordingly, we will discuss these specific opinions in
more detail.

{26} The first case, Bailey, is one of the strongest opinions to rely primarily on the
reliability of the evidence presented to determine the necessity for confrontation without
inquiring too much into the reasons for the witness’s absence. 612 A.2d at 293. Like the
case before us, the state sought to revoke probation for failure to complete a mandatory
treatment program. See id. at 290. The state placed in evidence a letter from the treatment
center, introduced through the probation officer, to prove noncompliance. Id. at 293.

{27} The Maryland Court of Appeals found certain factors helpful in determining
sufficient reliability. Id. The court’s non-exhaustive list of factors included:

the presence of any additional evidence which corroborates the proffered
hearsay; the type of and centrality of the issue that the hearsay is being
offered to prove; and the source of the hearsay, including the possibility of
bias or motive to fabricate [and] the facts and circumstances of a particular
case . . . .

Id. Applying these factors, the court found the letter was reasonably reliable. Its contents
were corroborated by tacit admissions from the probationer to his probation officer and were
uncontested at the revocation hearing. Id. at 295. The relevant portions of the letter asserted
the “simple, objective, and uncontroverted fact” that the probationer had left the treatment
program. Id. Moreover, the source of the information (the treatment center) was reliable
because it was “duty-bound to report to the Division of Parole and Probation or the court any
failure of the probationer to comply with its conditions for the completion of its program.”
Id. Thus, the Maryland trial court properly admitted and relied upon the letter to revoke

8
probation, without requiring any additional testimony or providing for additional
opportunities to confront witnesses. Id. at 296.

{28} In the second case, Reyes, the Supreme Court of Indiana upheld a probation
revocation based on an affidavit from the scientific director of a toxicology laboratory,
stating his professional opinion that the probationer had used cocaine within seventy-two
hours of a urine sample collected during the probation period. 868 N.E.2d at 442-43.
Attached to the affidavit were the urinalysis test results and “related documents,” which were
all admitted without requiring live testimony from anyone with personal knowledge about
the documents or the test results. Id. at 439-40. Adopting a “substantial trustworthiness”
test, the Indiana court observed that affidavits and related documents were the kinds of
“letters, affidavits, and other material” that the U.S. Supreme Court had found reliable in
Morrissey. Reyes, 868 N.E. at 440-42.

{29} The Indiana court found that the scientific director’s education in related science,
experience with various labs and their procedures, and his personal review of probationer’s
urinalysis, rendered the affidavits substantially trustworthy. Id. at 442. The court saw

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 probation 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 that routine
probation revocation hearing, when a reliable piece of hearsay evidence is
available as a substitute.

Id. at 441-42

{30} In our third case, People v. Gomez, the California Court of Appeal upheld the
admission of a hearsay probation report on electronic probation records during a revocation
hearing to prove that the probationer did not report as directed, make restitution payments,
or submit verification of his employment and attendance at counseling sessions. 104 Cal.
Rptr. 3d 683, 690-91 (2010). The California court reasoned that the presence of the
probationer’s probation officer at the hearing “likely would not have added anything to the
truth-furthering process, because he would be testifying to a negative”—i.e., that the
required events had not occurred. Id. at 690.

{31} Continuing, the Gomez court observed that “the demeanor of the [probation] officers
would not have been a significant factor in evaluating the credibility of their foundational
testimony pertaining to the contents of the probation department’s records regarding
defendant’s failure to report, provide verification of his employment, attend counseling, and
pay restitution.” Id. In other words, live testimony is not required when the evidence
concerns “routine matters,” such as keeping appointments, making restitution, and “similar

9
records of events of which the probation officer is not likely to have personal recollection
and as to which the officer would rely instead upon the record of his or her own action.” Id.
at 691 (internal quotation marks and citation omitted). The court did not discuss the reasons
why certain witnesses were not present to testify, but instead analyzed good cause in terms
of the reliability of the hearsay evidence to determine that the probationer’s confrontation
rights were not compromised.

{32} A final case, Wibbens, thoughtfully illustrates when confrontation is essential to due
process, depending, again, on the reliability of the hearsay evidence. 243 P.3d at 793. In
Oregon, a previous appellate opinion upheld a probation revocation based primarily on
documentary evidence (an affidavit and the contents of the defendant’s probation file) that
the probationer failed to report to his probation officer and to disclose his present address.
Johnson, 190 P.3d at 457-58. By contrast, the case against Wibbens was based upon
testimony from a probation officer who had been verbally informed by a sheriff’s deputy that
the probationer “smelled of alcohol [and] appeared to be intoxicated.” Wibbens, 243 P.3d
at 791. Because the deputy was unavailable, and the evidence unreliable, the court reversed
the revocation. Id. at 793. The court noted, in part, that unlike the earlier case, in which the
facts proved by hearsay (failure to report) were “few and straightforward,” not involving
“matters of opinion or interpretation,” the allegation of Wibbens’ intoxication was based on
the deputy’s “sensory perception” and, as such, was “subject to errors of judgment or
interpretation.” Id. (internal quotation marks and citation omitted). Accordingly, the state
had to produce and make the deputy available for cross examination to ensure the reliability
of the accusation. Id.

General Principles

{33} From our review of the case law, and these four opinions in particular, we glean
certain principles that guide us as we try to determine what it means to establish “good cause
for not allowing confrontation.” Gagnon, 411 U.S. at 786. Initially, we reiterate the
cautionary words from Morrissey that due process “is flexible and calls for such procedural
protections as the particular situation demands.” 408 U.S. at 481. Determining good cause,
therefore, is based on a case-by-case analysis. See, e.g., People v. Arreola, 875 P.2d 736,
746 (Cal. 1994). At its heart are considerations of pragmatism and fairness and the utility
of confrontation in a particular factual context. The Court also keeps a careful eye on the
admonition in Morrissey—that “the process should be flexible enough to consider evidence
including letters, affidavits, and other material that would not be admissible in an adversary
criminal trial.” Id. at 489.

{34} In evaluating the utility of confrontation, courts look to the kind of evidence offered
to prove a particular kind of assertion. Is the assertion central to the reasons for revocation,
or is it collateral? See Bailey, 612 A.2d at 293 (listing “type of and centrality of the issue”
as factors determining reliability, and thus utility). Is the assertion contested by the
probationer, or is the state merely being asked to produce a witness to establish something
that is essentially uncontroverted? For example, in the case at bar, Defendant never

10
indicated that he did complete the residential treatment program, central as it was to the
reasons for revocation. Defendant never created any doubt in the truth of the evidence
offered by the State. In addition, he never offered any reasons to suspect the validity of the
charge, nor any factors in mitigation, such as his reasons for leaving the treatment facility,
or that perhaps it was all just a misunderstanding. In evaluating the utility of confrontation,
therefore, many courts would question the purpose of, and the need for, a live witness to
establish an evidentiary fact (failure to complete) that is never challenged for its accuracy
or its reliability, but only on procedural or evidentiary grounds.

{35} We reiterate that under Morrissey only contested relevant facts must be evaluated
during a hearing to guarantee due process. See 408 U.S. at 488 (“[The] hearing . . . must
lead to a final evaluation of any contested relevant facts and consideration of whether the
facts as determined warrant revocation.”). Evidence is contested if contrary evidence has
been introduced or the probationer persuades the court that a particular assertion may not be
reliable, accurate, or true. See, e.g., State v. Ellis, 2008-NMSC-032, ¶ 2, 144 N.M. 253, 186
P.3d 245 (characterizing “contested facts as alleged by [the d]efendant,” as “contradictory
testimony”); Ruhe v. Abren, 1 N.M. 247, 253 (Terr. 1857) (characterizing a “conflict of
evidence” as a “contested fact”). See generally Black’s Law Dictionary 361 (9th ed. 2009)
(defining “contest” as “1. To strive to win or hold; contend . 2. To litigate or call into question; challenge . 3. To
deny an adverse claim or assert a defense to it in a court proceeding .” (Emphasis added.)). By reserving a hearing for contested facts only, Morrissey
recognized that the procedural protections inherent in the truth-finding process, such as a
hearing or confrontation, are only necessary when the truth of the state’s allegations is
challenged.

{36} Examining utility through another lens, many courts look either exclusively or
primarily to the inherent reliability of the evidence offered. As discussed in Bailey, certain
hearsay evidence is inherently reliable due to its source and the circumstances surrounding
its introduction. 612 A.2d at 294. The more reliable the source and contents of hearsay
evidence, the less the need for live testimony. As just one of many possible examples,
hearsay evidence may be inherently reliable if it conforms to proven exceptions to the
hearsay rule. See Chavez v. City of Albuquerque, 1997-NMCA-111, ¶ 8, 124 N.M. 239, 947
P.2d 1059 (“Exceptions to the hearsay rule are based on guarantees of reliability and
trustworthiness of particular circumstances which the rules of evidence accept as substitutes
for the declarant's testimony at trial.”). Evidence may be inherently unreliable, however,
when given by an unidentified, confidential source to prove certain kinds of accusations; for
example, an allegation that the probationer has committed another crime must be tested in
the crucible of cross examination. See Vigil, 97 N.M. at 753, 643 P.2d at 622.

{37} By way of another example of the utility analysis, live testimony and confrontation
are not equally useful in all situations to test the truthfulness and credibility of hearsay
evidence. As recognized in Gomez, certain in-court testimony would rely upon records, even
if given by the witness who originally made the records, while the source of other hearsay

11
is essentially live testimony given elsewhere. 104 Cal. Rptr. 3d at 687-88; see also Bailey,
612 A.2d at 294 (“A second consideration may be whether the proffered hearsay is an
objective fact reported by the declarant or instead contains conclusions which ought to be
tested by cross-examination.”). Hearsay may relate to objective or subjective observations,
assert that a probationer acted or failed to act as required, or support facts that are central or
ancillary to the ultimate probation violation inquiry. The utility inquiry should consider all
of these factors and more.

{38} Evidence supporting subjective conclusions, which may require confrontation,
includes sensory-based or judgment-based determinations or interpretations, such as
testimony evaluating a probationer’s progress during a treatment program. This evidence
stands in contrast with evidence supporting the straightforward fact of treatment completion:
the probationer “either did or did not successfully complete the program.” Bailey, 612 A.2d
at 295. Another example of a subjective conclusion might be an accusation of another crime
committed by a probationer during probation. If probation violation occurs upon indictment
or conviction, introducing documents alone should be sufficiently reliable in the absence of
some unusual variable. If, on the other hand, the violation is that the probationer is alleged
to have committed a crime, but has not been convicted, then we would be hard pressed to
envision a situation in which personal testimony and confrontation would not be required.

{39} Live testimony is often more useful and important in ascertaining the truth of
subjective conclusions which involve judgment, perception, credibility, inferences, and
interpretation. See Wibbens, 243 P.3d at 793 (reasoning that whether a probationer smelled
of alcohol and appeared intoxicated were “precisely the kind of unverified facts that the right
to confrontation is designed to test” during a probation violation hearing). Conversely, if the
evidentiary question is merely objective, negative, and routine—that the probationer was not
in a particular place when he was supposed to be—then the question frequently may be
answered without the need for confrontation.

The Good-Cause Spectrum

{40} For illustrative purposes, we set forth the need-for-confrontation analysis as a kind
of spectrum or sliding scale with extremes at either end and much balancing and weighing
of competing interests in between. Combinations of the non-exhaustive factors that affect
the utility of cross examination create infinite degrees of “cause,” a full spectrum. On one
end of the spectrum, where good cause for not requiring confrontation is likely, we would
include situations in which the state’s evidence is uncontested, corroborated by other reliable
evidence, and documented by a reliable source without a motive to fabricate, or possibly
situations where the evidence is about an objective conclusion, a routine recording, or a
negative fact, making the demeanor and credibility of the witness less relevant to the truth-
finding process. On this side of the good-cause spectrum, live testimony and cross
examination offer almost no utility to the fact-finding process.

{41} On the “no good cause” end of the spectrum, evidence is contested by the defendant,

12
unsupported or contradicted, and its source has a motive to fabricate; it is about a subjective,
judgment-based observation that is subject to inference and interpretation, and makes a
conclusion that is central to the necessary proof that the defendant violated probation. In
such a case, the state’s failure to produce the witness, for almost any reason, deprives a
defendant of due process. Between the two extremes there is no bright-line rule for
determining good cause—but then, that is the nature of due process; it “is flexible and calls
for such procedural protections as the particular situation demands.” Morrissey, 408 U.S.
at 481.

Applying the Test for Good Cause to Guthrie

{42} Ironically, the Court of Appeals in Guthrie appeared to be headed in the very
direction we set forth today, with one exception. The Court stated, “[t]he weaker the
probative value, the greater the need for confrontation, and, hence, the greater the need to
justify the absence of the witness.” Guthrie, 2009-NMCA-036, ¶ 20. We would state it
differently; the weaker the probative value, the greater the need for live testimony and
confrontation. On the other hand, the Court stated, “[t]he stronger the probative value, the
lesser the needs of confrontation and justification. Indeed, with a showing of sufficiently
probative or reliable hearsay evidence, there is no need to show good cause for the absence
of the witness.” Id.

{43} The trial court should focus its analysis on the relative need for confrontation to
protect the truth-finding process and the substantial reliability of the evidence, as we have
outlined in this Opinion. If that need is significant, and the court specifies the reasons why,
then the witness must appear and be subject to confrontation, regardless of the reasons for
his or her absence. Conversely, if the need for confrontation is not significant, as discussed
earlier, and the court specifies why, then it does not matter whether the witness is available.
Simply put, the reasons for the witness’s absence are, for the most part, irrelevant to the
balancing process we set forth. A court’s focus should instead be on the need for, and utility
of, confrontation with respect to the truth-finding process and in light of the particular case
at hand, including the specific charge pressed against the probationer.

{44} Our Court of Appeals may have felt bound by Phillips in continuing to focus on the
reason for the witness’s absence. Therefore, we overrule Phillips. With some revisions as
indicated, we endorse the Court of Appeals’ balancing analysis; namely, the stronger the
probative value and reliability of the evidence, the less the need for confrontation.

{45} Applying our spectrum or sliding scale analysis, Guthrie falls decisively on the “good
cause” end and does not require confrontation. Several reasons support our conclusion.
First, Defendant did not contest the allegation that he failed to complete his treatment at the
rehabilitation center, thus precluding a due process complaint under Morrissey’s requirement
for a hearing on contested facts. 408 U.S. at 488 (“The parolee must have an opportunity
to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that
circumstances in mitigation suggest that the violation does not warrant revocation.”).

13
Indeed, Defendant never offered any evidence in mitigation to explain his absence.

{46} Second, the key evidentiary fact of Defendant’s non-compliance with residential
treatment—an objective, negative, and rather routine fact—was easily and reliably
established to a reasonable degree of certainty by a written statement from the treatment
center. Here the testifying probation officer had a fax from the treatment center saying as
much. While it would have been preferable to introduce the fax itself into evidence, and
better yet with an affidavit, in this case the fax was in the probation file and the probation
officer testified to its contents relating to routine matters, like those in Gomez, 104 Cal. Rptr.
3d at 691. Olivas also testified that Defendant did not report to his probation officer, did not
pay probation costs, and did not complete treatment. As noted in Gomez, 104 Cal. Rptr.3d
at 690, even a live witness with personal knowledge would likely have referred to the file
to make many of these assertions.

{47} Third, based on this record, little to nothing could be gained by testimony from a
treatment center representative or from Chavez, the absent probation officer. Live testimony
would have been of little use to gauge Chavez’s demeanor, truthfulness, and credibility.
Chavez was known to Defendant, so identity was not at issue. There was no known need to
impress upon a probation officer the seriousness of revocation. Neither Chavez nor any
representative from the treatment center had any known motive to fabricate or deceive. See
Morrissey, 408 U.S. at 485-86 (reasoning it would “be unfair to assume that the [probation]
officer bears hostility against the [probationer] that destroys his neutrality; realistically the
failure of the [probationer] is in a sense a failure for his supervising officer”).

{48} Finally, in this particular case, the district judge made his own
observations—essentially taking judicial notice—that it would have been factually
impossible for Defendant to have completed treatment as required, given the time and place
of his arrest. In so doing, the judge not only corroborated the State’s hearsay evidence, but
also provided an independent source supporting the State’s hearsay allegation that Defendant
had violated his probation. In effect, the judge made the functional equivalent of “specific
finding of good cause” for not requiring confrontation. While the content of the State’s
hearsay evidence was central and important to the State’s case against Defendant, when no
doubt is cast upon otherwise reliable evidence, the centrality of that evidence does not make
confrontation any more essential. Defendant only attacked Olivas’s testimony on hearsay
grounds; he did not dispute the accuracy of the evidence or bring to light any mitigating
circumstances.

{49} Although the judge made no explicit findings of good cause, and we do exhort
district judges in the future to explain their rulings in more detail, the test for validity of the
finding need not be so formulaic. The record supports, and incontrovertibly so, the judge’s
finding that Defendant violated the terms of his probation. Accordingly, the district court
should have been affirmed.

CONCLUSION

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{50} We reverse the Court of Appeals and remand to the district court for remaining
proceedings, if any, in furtherance of probation revocation.

{51} IT IS SO ORDERED.

______________________________________
RICHARD C. BOSSON, Justice

WE CONCUR:

______________________________________
CHARLES W. DANIELS, Chief Justice

______________________________________
PATRICIO M. SERNA, Justice

______________________________________
PETRA JIMENEZ MAES, Justice

______________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Guthrie, Docket No. 27,022

CT CONSTITUTIONAL LAW
CT-CT Confrontation
CT-DP Constitutional Law, Due Process
CT-RF Right to Confrontation

CA CRIMINAL PROCEDURES
CA-CD Conduct of Defendant
CA-CX Cross-examination
CA-DU Due Process
CA-EH Evidentiary hearing
CA-PL Parole
CA-PB Probation
CA-PE Production of Evidence
CA-RV Probation Revocation

EV EVIDENCE
EV-AE Admissibility of Evidence
EC-CO Corroborating Evidence
EV-CX Cross Examination
EV-CU Cumulative Evidence

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EV-CR Credibility of Witnesses
EV-HR Hearsay Evidence
EV-UE Uncontradicted Testimony
EV-WT Witnesses

16