US v. Ferguson: The district court found that Jori Ferguson violated his supervised release by possessing marijuana. Ferguson appealed, alleging that in the absence of good cause for expert unavailability, it violated the Federal Rules of Criminal Procedure rules to admit a laboratory report without calling the expert who prepared the report to testify.
According to the Fourth Circuit, while revocation hearings are less formal than criminal trials, some due process rights apply! Reiterating the circuit’s holding in Doswell, the Fourth Circuit held here that unless the government makes its showing of good cause for the unavailability of its relevant witness, hearsay evidence is not admissible at revocation hearings. There is a balancing under Rule 32.1, with the releasee’s interests in confronting an adverse witness, against the government’s good cause for denying such confrontation. Reliability is an important factor, but not a dispositive one.
And, “[f]inally, we emphasize our displeasure with the government’s barefaced failure to abide by our command in Doswell. In may cases, a facially compelling harmlessness argument can be made because, as noted above, defendants who have been stripped of their confrontation rights will be hard-pressed to point to concrete symptoms of the constitutional harm that afflicts them. We refuse to let the government take advantage of this reality, essentially ignoring our command in Doswell by using harmlessness as a substitute for proper procedure.” Even while dissenting from the majority’s position that the error here was not harmless, Judge Keenan concurred that the “government must act diligently to ensure that revocation proceedings be conducted fairly in accordance with the plain requirements of the Federal Rule of Criminal Procedure 32.1(b)(2)(C).”