dissenting. I concur with the majority analysis in rejecting the residuum rule as espoused in Baxter v. Vermont Parole Board, 145 Vt. 644, 497 A.2d 362 (1985), as long as there is clear protection for the parolee’s confrontation clause rights. The majority has, however, relied on an overly technical preservation rule to refuse to address plaintiff’s confrontation rights. Accordingly, I dissent.
The majority has refused to consider plaintiff’s confrontation rights because he “did not apprise the board of possible eon*80frontation clause violations.” His attorney’s actual statement to the parole board was as follows:
Aside from our objection of the evidence which we think should be disregarded, Baxter seems clear enough that hearsay will create a presumption, but if hearsay is rebutted by live testimony from the parolee, that presumption does not exist anymore and hearsay will not suffice to establish a violation. We have here a combination of hearsay totally, from the state’s standpoint, and first-hand testimony from our standpoint, and under Baxter a violation cannot be found based upon that kind of evidence in the record.
Putting aside the references to Baxter, petitioner’s position can be summed up as follows: “You can’t revoke my parole on hearsay alone when I deny it. You must produce the live witnesses.” This is the equivalent of a demand for confrontation clause protection without using the term. This objection alerted the board to the problem and the proper remedy. It is adequate preservation.
Although I would probably conclude that the majority was being overly technical if the parole revocation hearing were held by a court, I feel particularly strongly that this is the case given that the hearing is held by the parole board. There were no lawyers present at the board hearing, other than the lawyer for plaintiff. None of the board members are lawyers, and the case was presented by a parole officer. There were no clear rulings on any of plaintiff’s numerous objections. Requiring the plaintiff to make a constitutional argument to the board to prevent consideration of evidence he is already attacking on related grounds is to create a procedural technicality without substance.
Many courts have held that the failure to raise constitutional issues in administrative proceedings does not prevent them from being raised on judicial review of these proceedings. See, e.g., Rana v. United States, 812 F.2d 887, 889-90 (4th Cir. 1987); Fellin v. Administrator, Unemployment Compensation Act, 196 Conn. 440, 446, 493 A.2d 174, 177 (1985); Atkinson v. Parsekian, 37 N.J. 143, 153, 179 A.2d 732, 737 (1962); Randall v. Norberg, 121 R.I. 714, 721, 403 A.2d 240, 244 (1979). We should adopt that rule for proceedings like this where there is no real*81istic chance of full consideration of the constitutional issue at the administrative level and plaintiff has apprised the administrative tribunal of the remedy he seeks. A more rigid rule is an unjust technicality.
I add only that I find wholly unconvincing the majority’s discussion of why failure to address plaintiff’s confrontation right is fair in this case. Essentially, the majority concludes that plaintiff waived the issue by the failure to produce the witness. Revocation of plaintiff’s parole was based entirely on the out-of-court statements of an adverse witness. Unless we are going to say, and the majority comes close to this, that it is the parolee’s responsibility to try to produce adverse witnesses, there is no waiver here. By placing duties to seek or to present adverse witnesses on the parolee, we are really saying that there is no confrontation right in these circumstances. That is a legal conclusion, not a preservation ruling, and I believe it is wrong.
Ironically, in a case originally decided by this Court, State v. Finch, 153 Vt. 216, 569 A.2d 494 (1989), the United States District Court has recently rejected the position of the majority on waiver. See Finch v. Vermont Dist. Ct., Civil Action No. 90-9 (D. Vt. Sept. 24, 1990), adopting Magistrate’s Report and Recommendation (Aug. 23, 1990) (Niedermeier, Mag.) (unpub.). The Magistrate’s Report stated:
Finally, the state’s observations that the petitioner was free to cross-examine the witness and that petitioner did not demand that the declarants themselves testify dodges the point of the right to confrontation. We will not presume under these circumstances that petitioner waived his right to confrontation.
Magistrate’s Report at 10. It makes no sense to have one waiver rule in this Court and another in federal court requiring resort to habeas corpus relief to obtain a decision on the merits.
Once we reach the merits of plaintiff’s confrontation argument, we must reverse. I don’t believe the State made the minimum showing required by due process of law to enable the board to admit the alleged victim’s statement and rely upon it to revoke plaintiff’s parole. The United States Supreme Court applied due process requirements to parole revocation proceedings in Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Among the rights established in that case is “the right to confront and *82cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id.; see also Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (due process requires this same right in probation revocation). The Morrissey confrontation requirement does not bar use of all hearsay evidence. The opinion itself states 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.” Morrissey, 408 U.S. at 489.
There is, however, clearly a limit to the board’s ability to rely on hearsay evidence consistent with the due process rights of the parolee. The various courts which have examined that limit have held either that the board cannot rely on evidence of the sort admitted here or can do so only on findings not made here. See, e.g., Commonwealth v. Joraskie, 360 Pa. Super. 97, 100, 519 A.2d 1010, 1011 (1987).
A fair summary of the rule and procedure required by due process was articulated by the Wyoming Supreme Court in Mason v. State, 631 P.2d 1051, 1056 (Wyo. 1981) (citations omitted):
Both the defendant and the social system have a stake in making sure the factual determination in a revocation hearing is not an arbitrary one but is based on facts which pass the Morrissey, truth-seeking test of cross-examination. In this case the only evidence presented was in the form of hearsay which the defense was unable to test and verify. This was a clear violation of the appellant’s right to due process. The State must make a good-faith attempt to produce the witnesses at a probation- or parole-revocation hearing or else show cause why they cannot appear. If for some valid reason a witness is unavailable, whether or not the information may be introduced through hearsay will be determined by the use of a balancing test. This test will weigh the defendant’s interest in confronting and cross-examining the witnesses against him with the practical difficulties of producing the witness.
Most courts that have considered the issue of reliance on hearsay evidence at parole or probation revocation proceedings have announced a rule similar to that in Mason. See, e.g., State v. Fuller, 308 Md. 547, 552-54, 520 A.2d 1315, 1317-18 (1987); Moody v. Cunningham, 127 N.H. 550, 555, 503 A.2d 819, 822 *83(1986) (to allow the State to meet its burden entirely by hearsay would eviscerate the due process protections); Anaya v. State, 96 Nev. 119, 123-25, 606 P.2d 156, 158-60 (1980); People ex rel. McGee v. Walters, 62 N.Y.2d 317, 319-20, 465 N.E.2d 342, 343, 476 N.Y.S.2d 803, 804 (1984); Commonwealth v. Joraskie, 360 Pa. Super, at 100, 519 A.2d at 1011; State v. DeRoche, 120 R.I. 523, 532-33, 389 A.2d 1229, 1234 (1978). The United States District Court for the District of Vermont has announced a similar rule in Finch. See Finch v. Vermont Dist. Ct., Magistrate’s Report at 9-10.
The State made no showing in this case to demonstrate the need to introduce the hearsay statement of the alleged victim or the police officer. The majority speculates that the alleged victim was available only to plaintiff and would have testified if her testimony were favorable to plaintiff, but there is no basis in the record to do more than speculate. Nor can that speculation be turned into a conclusion that plaintiff adopted a “tactical approach” to keep the alleged victim from testifying. Yet, the majority relies on just such a conclusion to hold that plaintiff waived his confrontation rights. I would hold that the admission of and reliance on the alleged victim’s statement to the police officer, as testified to by the parole officer, violated plaintiff’s due process rights.
The plaintiff’s parole has been revoked based on perfunctory testimony of a parole officer containing multiple-layered hearsay allegations that plaintiff beat the woman with whom he was living. These are serious allegations, and they deserve serious consideration in a fair and just process consistent with the liberty interest involved. I am authorized to state that Chief Justice Allen joins in this dissent.