Not To Be (Or, Why it is Nobler to Ask the Correct Question Than Suffer Outrageous Fortune)

Don’t search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.  - Rainer Maria Rilke

Rilke begged the young poet (in all of us) to love questions as if they were locked rooms or books in a foreign language.  But, to love questions and open questions and decipher questions, we must ask questions.  Too often, we orient ourselves toward the staid and familiar without reaching into ourselves first to discover the question that needs to be answered.

After the watershed case of Crawford v. Washington, virtually every document, every statement, every out of court anything emerged as an issue lawyers mistakenly argued necessitated confrontation.  The question of confrontation and that of hearsay evidence are linked but not identical. We have all but forgotten the differences and how to address issues of hearsay outside of the Confrontation Clause. 

The evidentiary problem of hearsay evidence - and why it is generally excluded at trial - is that it presumes four things: (1) that the statement was made, (2) if made, such statement was both voluntary and intended to be factual (3) that the statement was truthful and (4) that the statement was not made mistakenly or in error.  The question of confrontation allows examination and evaluation of of the witness in relation to but also separate from any out of court statement s/he may have made.  Everyone is entitled to the benefit of the hearsay prohibition, but only criminal defendants enjoy the right to confront adverse witnesses under the Sixth Amendment.  In Massachusetts, it is unclear how broad a reach the confrontation clause has as it avers that every "subject" of a crime or offense has the right to meet the witnesses against him "face to face." MA Const. Pt. 1, Art. XII.

The history of the prohibition against hearsay evidence is fascinating; in the 14th Century, hearsay evidence was wholly admissible, then it was admissible only as corroboration, and finally, by the 18th Century deemed too ambiguous for a court of law.   It seems that early rules forced trials to finish in one day; hearsay was admitted as a management tool without regard to its harm.  But, as cross examination emerged as a means of seeking the truth, courts began to frown on out of court statements being used as proof of a crime or offense and trials took on a life of their own, unbound by 24 hour constraints.

Confrontation addresses the defendant's ability to cross examine the witness; outside of any statement, the demeanor, credibility, bias and character all merit evaluation.  But, the concerns about hearsay wonder whether the statement, if made, was intended to be truthful and, in fact, was truthful and not a mistake, regardless of the other attributes or flaws of the declarant.  Independent of the ability to cross examine the witness, courts have a duty to ensure fairness in the proceedings, not to permit any evidence that is not relevant or that is more prejudicial than probative or that will distract or confuse the jury - all hazards of hearsay evidence.


Indeed, hearsay begs to be believed regardless of its truth or the good character of the speaker.  Haunting lamentations in Nicole Brown Simpson's journals detailing her former husband's violence and threats were excluded from his trials as inadmissible hearsay.  Accepting the virtues of the declarant, as painful and as revealing as the journals were, query whether they would have added an element of truth to the trial or whether they would have prejudiced the jury against the defendant.  Courts of law cannot sanction the human desire to convict someone of murder because he is a cad or because his behavior and cruelty caused another devastating emotional distress.  And, so courts have put into place safeguards, including the prohibition against hearsay evidence, to ensure the fairness of trials.

Due to the problems with unsubstantiated out of court declarations, it creates a sea of trouble when hearsay supports the sole reason to deprive liberty.  Yet, relying on an older case and factors it outlined, the Massachusetts Appeals Court recently upheld a probation violation when the only evidence against the accused was an affidavit (arguably recanted in part) and a police report.  Neither witness appeared in court.  The hearing judge found the evidence "reliable" and therefore revoked the defendant's probation.  That revocation imposed a previously suspended sentence on the defendant. This, the Appeals Court declared, was justice.

They did so by relying on Commonwealth v. Durling, a case decided wholly and exclusively on the Fourteenth Amendment right to due process of law.  It announced that probation revocation hearings are not part of criminal proceedings.  It did so by citing to Gagnon v. Scarpelli, which held that a previously sentenced probationer was not entitled to counsel in a hearing focused on revocation of probation as such a hearing is not a critical stage of criminal proceedings. The question in that case asked whether and under what conditions the federal guarantee to due process mandated a hearing before probation could be revoked.

Yet, without any analysis of this ruling and without reference to any part of the Massachusetts Constitution, probation revocation hearings were removed from the realm of criminal proceedings.  Not only has this unusual decision never been challenged, but it is accepted without question.  Rules developed expounding its erroneous presumption so that probationers in Massachusetts have been denuded of their constitutional rights, privileges and immunities...all based on a misunderstanding of the question.

Massachusetts District Court Rules for Probation Violations Rule 6 allows hearsay at probation revocation hearings.  It explains that a revocation of probation based upon hearsay evidence may only rely upon "trustworthy hearsay" and where the probation officer has good cause for proceeding without a witness with personal knowledge.  Putting aside that neither of those requirements was met in Commonwealth v. Henderson, Massachusetts Appeals Court Docket No. 11-P-1302 (October 19, 2012), the rule itself harkens back to the long disavowed approach which prompted Raleigh's plea to being forth Lord Cobham and directly violates the Massachusetts Constitution which guarantees the subject of a crime or offense the opportunity to confront the witnesses against him face to face before being deprived of his liberty. MA. Const. Pt. 1, Art. XII.

This hearsay devolution is akin to the game of telephone where the first message gets garbled along the way.  In Gagnon v. Scarpelli, questions arose as to whether due process of law required any hearing as to probation revocation and, if so, whether the probationer would be entitled to counsel.  It does not discuss hearsay or confrontation; it certainly does not discuss them for a probationer facing revocation when his sole sentence is probation (rather than a previously suspended term).  Prohibition against hearsay predates the American colonies and it has long been applied to both civil and criminal matters.  Somehow, the message that filtered through to Massachusetts was that probation revocation hearings were not criminal proceedings at all; ergo they are not subject to constitutional principles or accepted rules of evidence. No one has questioned why and how hearsay can send someone to jail simply because s/he is on probation, an illogical determination and one that demands consideration.

Art. XII pertains to all "subjects"; its separate clauses, each beginning with the word "and", call into question any limitation of the protections it guarantees.  Its provisions apply to any offense; this encompasses those offenses that might impact probationary status.  The question is not simply the process due to a probationer, i.e. whether the Fourteenth Amendment requires a hearing and if so what form of hearing.  Review of a probation revocation hearing under Art. XII questions whether the state can act to deprive a subject of liberty without the ability to confront witnesses face to face and present all proofs that may be favorable.  The rule permitting hearsay, whether "reliable and trustworthy" or not, violates the mandate of Art. XII and must be challenged on that basis, not the federal constitutional principle of due process.

It is impossible, as Rule 6 permits, for a judge to ascertain the reliability or trustworthiness of an out of court statement.  Further, the problems with hearsay testimony generally prevent it from being used as the foundation for incarceration since there is no basis by which anyone can determine whether the statement was made in jest, in error or under conditions that call voluntariness into question.  But, beyond that, as Justice Marshall determined, laws and rules that fail to comply with the dictates of the Constitution are invalid.

It is not the job of lawyers to accept, willingly what appears to be or not to be.  To live the questions, we must ask the right questions.  Without them, we can never find the answers no matter how long we search.