“No Face, No Case” does not apply to Violation of Probation Hearings

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When I was an Assistant Public Defender, I went to the jail to visit a client charged with Domestic Violence Battery.  I explained that because of Crawford v. Washington and the rules of evidence concerning hearsay, the State could not prove a case against him without the alleged victim’s testimony in court.  He responded by saying “no face, no case.” “No face, no case” means that no statements of a witness, including statements to law enforcement, can be admitted without the witness appearing in court to testify.  This means that in most cases involving domestic violence, unless there is an independent witness to the criminal activity, the State cannot prove the case without the victim’s testimony in court.  Most of my clients can clearly understand “no face, no case” but they do not understand that the same rules do not apply to violation of probation hearings.

To begin to understand why violation of probation hearings are different from criminal trials it is important to first understand the rules concerning probation.  Judges are not required to sentence offenders to probation.  Probation sentences are generally granted to people with limited or no criminal history, where rehabilitation is the ultimate goal, and to enforce restitution to the victim of the crime.  Probation sentences are viewed as a privilege and not an absolute right.  See Bernhardt v. State, 288 So.2d 490 (Fla. 1974).  When a defendant is sentenced to probation, the defendant waives some of the constitutional protections, including the right to search and seizure under the Fourth and Fourteenth Amendments.  Violation of probation hearings are held when necessary because defendants are still entitled to due process but not the same due process for the underlying criminal charge.  If a defendant admits a violation of probation or is proven to have violated probation, the defendant can be sentenced to the same penalties he or she faced before the probation sentence was ordered.

Violation of probation hearings are different from trials for new crimes because the burden of proof is much lower. For violations of probation, the State is required to prove a willful and substantial violation by the “greater weight of the evidence” and not required to prove the violation beyond a reasonable doubt.  See Blackwelder v. State, 902 So.2d 905 (Fla. 2d DCA 2005).  Greater weight of the evidence basically means the State must prove the case by 50.01%.  This lower burden of proof makes it much easier to prove a defendant has violated probation.

The second difference is that Crawford v. Washington does not apply to violation of probation hearings.  Crawford v. Washington specifically address the rights of a defendant to confront a witness who testifies against him by allowing a defendant to challenge out-of-court statements.  Crawford v. Washington, 531 U.S. 36, (2004).  Under Crawford, an out-of-court statement cannot be admitted in trial unless the defendant had a prior opportunity to cross-examine the declarant (person who made the statement).  Id.  However, the Florida Supreme Court has ruled that a defendant does not have the same rights of confrontation for a violation of probation hearing.See Peters v. State, 984 So.2d 1227 (Fla. 2008).  Out-of-court statements of an unavailable witness can be admitted in a violation of probation hearing without a violation under Crawford.

The third and main difference is that hearsay is admissible in violation of probation hearings.  Hearsay is any statement made out of court that is offered to prove the truth of the statement.  Fl. Stat. 90.801.  This means any statement made outside of court, including statements to police as well as 911 calls, with very limited exceptions, are hearsay.  Although hearsay is admissible in a violation of probation hearing; the hearsay statement cannot be the sole evidence to prove the violation. See Cuciak v. State, 410 So.2d 916, 918 (Fla. 1982).  As long as there is evidence in addition to the hearsay statement that is presented in the violation of probation hearing, a defendant can be found guilty of a violation.  In domestic violence cases, a defendant can be found guilty based on the hearsay statements of the alleged victim (“he hit me”) and the officer’s testimony of an injury consistent with the hearsay statement.  An example is where the officer testifies that the victim told the officer she was choked by the defendant and the officer saw bruises around her neck that were consistent with someone being choked.  See Russell v. State, 982 So.2d 642 (Fla. 2008).  The officer can also testify to the alleged victim’s behavior and appearance to help the State prove a violation of probation.

It seems wrong that the State can prove a violation of probation for a domestic violence battery without testimony from the person who was allegedly battered; however, that’s exactly what is happening in Florida.  Even if the domestic violence charge results in a not guilty verdict or is dropped for failure of a witness to participate, the State can still proceed with the violation of probation as long as an officer can testify to injuries or demeanor consistent with the alleged victim’s statement.

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