
    Jerry VALDIVIA, Alfred Yancy, and Hossie Welch, on their own behalf and on behalf of the class of all persons similarly situated, Plaintiffs, v. Arnold SCHWARZENEGGER, Governor of the State of California, et al., Defendants.
    No. Civ. S:94-cv-671 LKK/GGH.
    United States District Court, E.D. California.
    March 25, 2008.
    
      Bingham McCutchen, Karen Kennard, Kristen A. Palumbo, San Francisco, California, Prison Law Office, Donald Specter, General Delivery, San Quentin, California, Stephen J. Perrello, Jr., San Diego, California, Rosen, Bien & Asaro, LLP, Michael W. Bien, Ernest Galvan, Mari L. Willits, San Francisco, California, Alex Landon, San Diego, California, for Plaintiffs.
    Thomas S. Patterson, Deputy Attorney General, for Defendants.
    Edmund G. Brown Jr., Attorney General of the State of California, James M. Humes, Chief Assistant Attorney General, Frances T. Grander, Senior Assistant Attorney General, Rochelle C. East, Supervising Deputy Attorney General, Vickie P. Whitney, State Bar No. 145316, Supervising Deputy Attorney General, Jessica R. Devencenzi, State Bar No. 232427, Deputy Attorney General, Sacramento, CA, for Defendants.
   ORDER

LAWRENCE K. KARLTON, Senior District Judge.

On February 25, 2008, the Special Master filed his report and recommendations regarding the use of hearsay evidence in parole revocation proceedings. See Permanent Injunction, at -. The defendants have filed objections to the Special Master’s report; the plaintiffs encourage the court to adopt it, with modification. The court declines both parties’ requests and adopts the Special Master’s report and recommendations.

Despite defendants’ objections, the court agrees with the Special Master’s interpretation of United States v. Comito, 177 F.3d 1166 (9th Cir.1999), United States v. Hall, 419 F.3d 980 (9th Cir.2005) and related hearsay cases in this Circuit, and their application to the defendants’ parole revocation proceedings. His findings of fact are supported by the record. The Special Master’s recommendations appear to the court well-calculated to ensure the due process protections as expressed by the' Supreme Court and the Ninth Circuit are respected. All of defendants’ objections are overruled.

Plaintiffs’ principally request that the Special Master’s recommendations be amended to include concrete deadlines by which the defendants must accomplish certain remedial measures. The court declines to do so and defers to the Special Master, in his conscientious attention to and intimate knowledge of the ease, to ensure that the remedial measures ordered are completed expeditiously.

Accordingly, the court ORDERS:

1. The court ADOPTS the Special Master’s Report and Recommendations Regarding Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction (Docket No. 1398);
2. The parties SHALL undertake the acts recommended by the Special Master at pp.-of the Report. The court defers to the Special Master to ensure these acts are timely accomplished. Should he believe necessary, the Special Master may move the court to require specific deadlines.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION

CHASE RIVELAND, Special Master.

INTRODUCTION

This Court entered a Stipulated Order for Permanent Injunctive Relief in this action (“Permanent Injunction”) on March 9, 2004. Among its provisions is the following requirement:

The use of hearsay evidence shall be limited by the parolees’ confrontation rights in the manner set forth under controlling law as currently stated in United States v. Comito, 177 F.3d 1166 (9th Cir.1999). The Policies and Procedures shall include guidelines and standards derived from such law.

See Ex. A at 6 (Permanent Injunction).

While Defendants distributed policies and procedures in 2004, the parties have not agreed as to their adequacy. Further dispute arose when, in 2006, Defendants wished to amend practices based on recent case law.

The parties met and conferred concerning this Permanent Injunction requirement in 2007. In August 2007, the parties determined that they wished to seek clarification of what the law requires in light of recent developments in case law. They chose to pursue a fact-finding hearing held by the Special Master with Report and Recommendation to the Court, and de novo review by the Court, as provided for in Paragraph IV.E of the Stipulation and Amended Order Re: Special Master Order of Reference.

On December 14, 2007, this matter came on for hearing. Documents were produced in response to two requests for production. Having reviewed the pleadings, arguments of counsel, and documents, the Special Master submits the following Report and Recommendation for the Court’s consideration.

FINDINGS OF FACT

1. Policies and procedures concerning the application of Comito and related case law were distributed to Defendants’ staff in July 2004. Ex. B at 68:16 — 69:17 (Reporter’s Transcript of 12/14/07 Hearing).

2.As illustrated in the examples below, these policies and procedures contain inaccurate statements concerning parolees’ confrontation rights under the controlling law stated in Comito, 177 F.3d 1166. Ex. C (CDCR Resource Documents 1, 2, 3 (“RD”)). For example, the “Hearsay” section of Resource Document 1 states that the Comito balancing test:

balances the parolee’s right to confrontation against the use of the hearsay evidence.

Ex. C, RD1 p. 8. As will be discussed infra, the test balances “the releasee’s interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it.” Comito, 177 F.3d at 1170. The same document describes a Deputy Commissioner’s task as:

determining that the parolee’s right to confront is outweighed by the trustworthiness of the evidence.

Ex. C, RD1 p. 8. While trustworthiness is a factor that can lessen the parolee’s interest, under Comito, trustworthiness alone cannot completely outweigh that interest. See infra at 859. In Resource Document 2, a summary of the right to confront and cross-examine adverse witnesses indicates:

the [Deputy Commissioner] can deny the confrontation of an adverse witness if it is shown that the witness is unavailable for good cause, or determined to be either fearful or confidential.

Ex. C, RD2 p. 3. This omits any mention of the required assessment of the parolee’s interest in confrontation and weighing it against the described good cause. A Resource Document 3 summary of the Comi-to balancing test reads:

[the test] balances the parolee’s right to confrontation against the need for the evidence to the disposition of the case and the trustworthiness of the information.

Ex. C, RD3 p. 2. This is the converse of the preceding example; it describes the assessment of the confrontation interest, but omits the good cause assessment prong of the test.

In these policies and procedures, there also are repeated references to all relevant evidence, or all hearsay evidence, being admissible. See, e.g., Ex. C, RD1 pp. 2, 3, 4, 5, 12. While some references are accurately quoting statutes or regulations, the repeated references send a message contrary to the controlling law that some relevant or hearsay evidence should be excluded after conducting a balancing test.

3. Defendants assert that the distributed policies and procedures include guidelines and standards that comply with the mandate set forth in Paragraph 24 of the Permanent Injunction. Ex. B at 68:16— 69:17. A review of those policies and procedures reveals that any guidelines and standards to be found therein are insufficiently detailed to provide the guidance contemplated by this Permanent Injunction requirement. Ex. C.

4. After the Ninth Circuit issued its opinion in United States v. Hall, 419 F.3d 980 (2005), Defendants informed Plaintiffs of their position that hearsay evidence that falls within a recognized hearsay exception may be admitted without applying the Comito balancing test. Ex. B at 6:25— 8:20; Ex. A-Sealed at 1:7-12 (Reply Declaration of Ernest Galvan in Support of Plaintiffs’ Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).

5. The record indicates that Defendants have discussed changes to their policy concerning admission of hearsay exceptions but have not yet instructed their staff to admit proffered evidence under a hearsay exception without applying the Comito balancing test. Ex. 2 to Ex. F (Reply Declaration of Loren G. Stewart in Support of Plaintiffs’ Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. B at 8:24 — 9:5. In training in March and April 2007, Deputy Commissioners were told that Defendants were exploring the possibility of changing this practice, but to continue to apply the Com-ito balancing test at that time. Ex. 4 to Ex. A-Sealed at 46 (CDCR Valdivia Compliance Report 9/26/07). In a November 2006 Deputy Commissioner academy session, instructors mentioned hearsay exceptions but did not make any explicit link to any effect they may have on the Comito balancing test. Ex. D at 2:1-3 (Declaration of Loren G. Stewart in Support of Plaintiffs’ Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).

6. Only a small majority of experienced Deputy Commissioners are lawyers, as is only one of the recent hires. Ex. B at 81:1-21. Taken together, this means that a minority of the Deputy Commissioners currently serving are lawyers. While a background in law is not a requirement (see Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)), there is no evidence in the record that the non-attorneys have any familiarity with ev-identiary law apart from the training Defendants provide.

7. Training provided to Deputy Commissioners consists of three to three- and one-half hours of instruction in an academy shortly after their hire. Ex. E (Board of Parole Hearings Deputy Commissioner Training 12/20/07); Ex. D at 1:22-25. Continuing education was offered in and March and April 2007 for one and one-quarter hours. Ex. 5 to Ex. A-Sealed (Board of Parole Hearings Deputy Commissioner Workshop 3/27/07).

8. When Plaintiffs’ counsel attended training sessions, they formed the opinion that the trainings “provided confusing and inconsistent messages regarding the standards and procedures to be followed under the controlling Comito case.” Ex. D at 1:6-10, 2:4-13.

9. As described in the following paragraphs, all parties are aware that, in practice, there have been deficiencies in the application of Comito and related case law to evidentiary questions. Defendants have observed instances of Deputy Commissioners failing to apply the required balancing test, and other instances where the balancing conducted was inconsistent with the Comito standard. Ex. B at 71:21 — 72:16. One of Defendants’ staff asserted that it was a common mistake for Deputy Commissioners to admit evidence central to the ultimate finding because it was central to the finding, when such evidence should weigh against admission because it heightens the parolee’s confrontation interest. Ex. D at 1:25-28. A Deputy Commissioner confirmed that was his approach during an interview with Plaintiffs’ counsel. Ex. B-Sealed at 1:23-24 (Reply Declaration of Anne Mania in Support of Plaintiffs’ Motion to Enforce Paragraph 24 of the Valdi-via Permanent Injunction).

10. Plaintiffs’ counsel have observed Deputy Commissioners failing to apply the required balancing test, and other instances where, in Plaintiffs’ counsel’s assessment, the balancing conducted did not follow the Comito standard. Ex. 1 to Ex. B at 5-7 (Notice of Motion and Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. B-Sealed. Plaintiffs’ counsel have also observed confusion about the standard expressed by Deputy Commissioners and Associate Chief Deputy Commissioners as recently as March 2007. Ex. D at 2:4-13.

11.Documents concerning revocation hearings, submitted as evidence by Plaintiffs, contain two examples of a Deputy Commissioner incorrectly applying the relevant balancing test. One discussion reads:

P’s interest in confrontation weighed against the importance of witnesses’ testimony to the final finding of fact is lesser than the reliability of the hearsay evidence and the corroboration of it.

Ex. 3 to Ex. C-Sealed at 5 (Reply Declaration of Kristen Palumbo in Support of Plaintiffs’ Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction). No reason was given for the declarants’ absence. Id. at 1. The established test is to balance the parolee’s confrontation interest against the State’s good cause for denying it; in the absence of any discussion of good cause for declarants’ absence, the correct balancing test could not have been carried out. Additionally, importance of the evidence to the ultimate finding is a factor that heightens the parolee’s confrontation interest, not a factor to be weighed against it. See infra at -.

In another revocation hearing, the Deputy Commissioner acknowledged multiple prongs to the test but did not employ them. Ex. E-Sealed at 3:17, 4:21-24; Ex. F-Sealed; Ex. H-Sealed at 34:4-37:3 (Transcript of Revocation Hearing for Parolee 2). She considered the reliability of the hearsay based on its status as, or similarity to, documents that would fall under a business records exception, as well as reliability established by corroborating evidence. Ex. H-Sealed at 34:4-37:3. The Deputy Commissioner did not discuss the strength of the parolee’s confrontation interest, the importance to the ultimate finding, or the good cause for not producing the declarants, nor the relative weight among them. Id.

12. Transcripts of audiotaped revocation hearings, submitted as evidence by Plaintiffs, contain an example of a Deputy Commissioner dismissing a confrontation rights objection without applying the relevant balancing test. Ex. 1 to Ex D-Sealed at 8:1-12 (Reply Declaration of Shirley Huey in Support of Plaintiffs’ Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).

13. The administrator of the panel of attorneys representing parolees in hearings has disagreed with some applications of the Comito standards. Ex. 1 to Ex. A-Sealed at 34 (First Report of the Special Master on the Status of Conditions of the Remedial Order).

14. Interviewing some Division of Adult Parole Operations staff gave the Special Master the impression that they hold many uncertainties and misinformation regarding hearsay information and Comito requirements. Ex. 1 to Ex. A-Sealed at 34. Those staff perceived Deputy Commissioner decisions in applying the Comito standard to be inconsistent and sometimes inappropriate. Id. As recently as August 2007, many Division of Adult Parole Operations staff reported to Defendants’ self-monitoring teams that they were confused about providing evidence under the standards. Ex. 4 to Ex. A-Sealed at 47; Ex. 3 to Ex. A-Sealed at fill (CDCR Valdivia Monitoring Report Santa Rita County Jail).

15. The above-described confusion and inconsistency was observed and expressed three years into implementation of policies and procedures arising from Valdivia Permanent Injunction Paragraph 24 obligations. (Policies distributed in July 2004 — Ex. B at 69:15-17; observations March 2007 and August 2007, supra.)

16. The scope of the problems detailed above is unknown at this time. Defendants have not tested Deputy Commissioners’ understanding subsequent to training. Ex. B at 69:22 — 70:12. During self-monitoring visits and staff supervision, Defendants observe some Deputy Commissioners in hearings, as do Plaintiffs in their monitoring, but neither party has undertaken any systematic assessment of Deputy Commissioners’ skill and accuracy in applying the legal standards concerning confrontation rights. Ex. B at 70:13— 71:15.

17. A case presented as evidence by Plaintiffs includes a Deputy Commissioner sustaining a confrontation rights objection and postponing the revocation hearing in response. Ex. E-Sealed at 6:15-19, 7:6-10 (Declaration of Shirley Huey in Support of Plaintiffs’ Notice of Motion and Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. F-Sealed (Plaintiffs’ Notice of Lodging of Revocation Hearing Transcripts); Ex. G-Sealed at 16:21-25, 23:25-24:20 (Transcript of Revocation Hearing for Parolee 3). The parolee admitted a charge and did not admit two others. Ex. G-Sealed at 10:9-11:2.

His attorney argued the need to cross-examine several listed witnesses, including the alleged victim, percipient witnesses, and involved law enforcement; those witnesses were subpoenaed and did not appear. Ex. G-Sealed at 7:2-8:13, 16:21-25, 21:24-22:22. Concerning some of the witnesses, there was some discussion concerning contact efforts, nonappearance reasons, and assistance, but information was limited. Ex. G-Sealed at 7:9-8:13, 14:4-15:3, 16:10-17, 22:23-23:24. The reasons for the arresting or investigating officers’ failure to appear were not discussed. Id.

The Deputy Commissioner did not apply a Comito balancing test to determine whether to admit the proffered hearsay derived from the absent witnesses. Ex. G-Sealed at 16:21-25, 23:25-24:20. He found good cause on the admitted charge and postponed the hearing as to the other two charges while encouraging the parties to secure the witnesses’ appearance. Ex. G-Sealed at 23:25-24:20.

18. The scope is unknown for the practice of Deputy Commissioners postponing hearings in order for the State to present more competent evidence after a confrontation rights objection. Neither party has undertaken a systematic review. Ex. B at 37:7 — 40:21.

19. The mechanism available for reviewing a disputed evidentiary decision is a writ of habeas corpus to the Superior Court. Ex. B at 75:15-21. Regulations provide for a process for the Board of Parole Hearings to review decisions of Deputy Commissioners. The record is not clear as to whether this process is available to parolees. Ex. B at 77:8 — 79:2, 82:7-12.

CONCLUSIONS OF LAW

I. Parolees’ Right to Confrontation

20. The Fifth and Fourteenth Amendments serve as the source of the rights of a parolee in a revocation proceeding; he is not entitled to the full protections of the Sixth Amendment. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir2005). Among the more limited rights due process affords, however, is the right “to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Morrissey, 408 U.S. at 489, 92 S.Ct. 2593.

21. For purposes of a due process analysis, courts have treated parole revocation, probation revocation, and supervised release proceedings as essentially equivalent. United States v. Martin, 984 F.2d 308, 310 (9th Cir.1993) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Fed.R.Crim.P. 32.1). The authority cited infra will draw on each of the types of proceedings.

22. In the Ninth Circuit, the prevailing method of determining whether to admit hearsay without the ability to confront the adverse witness is to apply a balancing test laid out in United States v. Comito, 177 F.3d 1166 (9th Cir.1999). The test requires the decisionmaker to determine the degree of the parolee’s interest in confrontation and weigh that against the government’s good cause for not producing the adverse witness. Id. at 1170. This is a very individualized determination based on the facts and circumstances of each case. Id. at 1172; United States v. Martin, 984 F.2d 308, 310-11 (9th Cir.1993).

23.Factors that heighten the parolee’s interest include the importance of the proffered evidence to the ultimate finding and low reliability of the evidence. Martin, 984 F.2d at 311. Common factors going to the government’s good cause include the efforts taken to produce the witness, the difficulty and expense of doing so, and concerns for the safety of a confidential informant. Hall, 419 F.3d at 988; Gagnon, 411 U.S. at 783 n. 5, 93 S.Ct. 1756; Morrissey, 408 U.S. at 487, 92 S.Ct. 2593. Other factors may be taken into account, such as the severity of the penalty potentially to be imposed. Martin, 984 F.2d at 312.

II. Hearsay Exceptions

24. The parties disagree about the treatment of hearsay exceptions in revocation proceedings. When proffered evidence falls within a hearsay exception, Plaintiffs take the position that decision-makers should take this into account by adjusting the weight given in the balancing test in accord with the reliability traditionally associated with such evidence. Ex. 1 to Ex. B at 13:23 — 14:4. Defendants take the position that proffered evidence falling within a hearsay exception can be admitted without more. Ex. 2 to Ex. B at 2:5-8. Defendants argue that (1) to do otherwise is to afford more rights to parolees facing revocation than to accused criminals facing prosecution and (2) the indicia of reliability inherent in such evidence establishes good cause for denying confrontation sufficient to render balancing unnecessary. Id. at 9:9-11, 2:8-12.

Authority for use of hearsay exceptions in revocation proceedings

25. Neither the Supreme Court nor the Ninth Circuit has ruled directly on whether hearsay exceptions obviate the need for a balancing test in parole revocation proceedings. As discussed below, while some Ninth Circuit authorities suggest the court may favor admitting proffered evidence on the basis that it falls within a hearsay exception, the question has not been posed directly to the court; rather, the inference arises from dicta or from the types of evidence it allowed.

Hall gives perhaps the strongest indications of the Ninth Circuit’s inclination concerning hearsay exceptions. In Hall, the court considered whether due process was satisfied when unsworn verbal allegations regarding two separate charges were admitted in a supervised release revocation proceeding. Hall, 419 F.3d at 986-89. The court began by employing the Comito balancing test in analyzing the first charge. Id. at 986. It determined that the defendant’s interest in confronting the unsworn statements as to that charge was fairly low because there was sufficient non-hearsay evidence to sustain the charge and the hearsay therefore added little to the ultimate finding. Id.

The court then went on to add a paragraph that is not anchored either in what precedes it or follows it. The court wrote:

In addition, several pieces of evidence supporting the domestic violence allegation are admissible under hearsay exceptions. Although the Federal Rules of Evidence do not strictly apply to revocation hearings [citations omitted], longstanding exceptions to the hearsay rule that meet the more demanding requirements for criminal prosecutions should satisfy the lesser standard of due process accorded the respondent in a revocation proceeding.

Id. at 987 (emphasis added). The court then concluded its balancing without expressly employing the evidence subject to hearsay exceptions. Id. It did not discuss how such evidence would or should be used within a balancing test. It did not rule that evidence that falls within a hearsay exception obviates the need for Comito balancing. It made this assertion and then continued and completed the balancing test. The court did not discuss hearsay exceptions when it went on to apply the Comito balancing test to the evidence of the second charge. Id. at 987-89. The evidence subject to hearsay exceptions was not at issue in the appeal. Given the equivocal language (“should satisfy” due process) and the lack of a direct ruling, this dicta is arguably indicative of the court’s inclinations, but cannot be said to be dispositive on the hearsay exception issue.

26. Other relevant Ninth Circuit cases cited by the parties preceded Comito and did not discuss hearsay exceptions as a whole. The cases implicitly raised the business document and public records exceptions by virtue of the types of contested evidence at issue; one of these cases explicitly mentioned the public records exception.

In United States v. Walker, 117 F.3d 417 (9th Cir1997), the court found it was harmless error to admit evidence of a single date from documentary hearsay that should have been subjected to a balancing test but was not. Walker, 117 F.3d at 420-21. The court’s rationale focused on the reliability of the date in light of the defendant’s failure to challenge the document’s reliability and to present contrary evidence. The court noted, but did not rule, that the document was “most likely admissible as a public records exception.” Id. (emphasis added).

In United States v. Simmons, 812 F.2d 561 (9th Cir1987), the court held that admission of hospital records at a probation revocation hearing was not plain error in light of the “traditional indicia of reliability that these records bear.” Id. at 564-65. The court’s analysis appears to attach to the specific evidence in the case — hospital records.

In United States v. Miller, 514 F.2d 41 (9th Cir1975), the court found no prejudice to defendant when the lower court admitted into evidence unauthenticated copies of state court criminal records, which showed that defendant had been convicted of criminal offenses while on probation. Although the defendant had objected to the introduction of the records at the revocation hearing, he had not challenged the accuracy of the information revealed by the records, nor had he offered any evidence to refute the claimed convictions. Miller, 514 F.2d at 42. Based on these facts, the court found the unrefuted evidence reliable and admissible under Morrissey and Gagnon. Id. at 42-43.

Martin discussed the expectations of reliability that should be accorded urinalysis reports, implicitly as evidence commonly treated as a business records exception. Martin, 984 F.2d at 313-14. The court held that the defendant had a right to confront that evidence to impeach factors such as efficacy of procedures, experience, and qualifications. Id. at 312-14.

In nearly all of the cases discussed above, the court’s language indicates that the narrow facts — a date, a court’s record of convictions' — -are particularly significant to the holding. Walker, 117 F.3d at 421; Miller, 514 F.2d 41; Simmons, 812 F.2d at 564-65. One case suggests recognizing-documents subject to one hearsay exception (Walker, 117 F.3d 417); another rejects categorically admitting even a subset of that same hearsay exception (Martin, 984 F.2d at 313-14). There does not appear to be a clear record for treating these rulings as generalizable. Indeed, the court in Martin wrote:

[Arbitrariness is achieved just as surely by the incremental creation of blanket exceptions as by the outright abandonment of fair procedure.

Martin, 984 F.2d at 314 n. 9.

27.All of the Ninth Circuit cases, including those appearing to advocate admission on the basis of hearsay exceptions, continue to recognize the Comito balancing test as the norm. None of these cases admits a contested piece of evidence expressly on the basis that it falls within a hearsay exception and without conducting a balancing test. Nor does any court rule directly on whether hearsay exceptions categorically establish admissibility. While the Ninth Circuit may use the cited cases as a basis to extend its holdings in the future, it has not yet done so.

28. The Second Circuit, on the other hand, does appear to hold that hearsay exceptions render the balancing test unnecessary. In United States v. Jones, 299 F.3d 103, 113 (2d Cir.2002), the court found it was not an abuse of discretion to admit evidence under the present sense impression and excited utterance exceptions. Jones, 299 F.3d at 113. The Second Circuit distinguished the case from preceding authority requiring a balancing test on the basis that hearsay exceptions applied. Id. Alternatively, the court wrote, in the Second Circuit’s balancing test, the hearsay exceptions would serve to satisfy the required element of reliability. Id. at 113-14. In reaching that conclusion, however, the court relied on cases whose validity has now been called into question by a subsequent United States Supreme Court decision (see infra at-).

United States v. Aspinall, 389 F.3d 332 (2d Cir.2004), followed the rule laid out in Jones, applying it to documents potentially falling under the business records exception. Aspinall, 389 F.3d at 343-46. United States v. Williams, 443 F.3d 35 (2d Cir.2006), also cited this rule, although it went on to conduct a balancing test because the involved hearsay exception was not firmly rooted. Williams, 443 F.3d at 45-46.

29. One other Circuit offers reason to believe it might employ hearsay exceptions in parole revocation proceedings. In Prellwitz v. Berg, 578 F.2d 190 (7th Cir.1978), the Seventh Circuit cited the Mor-rissey dictates of a:

right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation),

but then wrote,

forcing the state to show good cause for not producing the hearsay declarant would unwisely extend the limited due process rights of a probationer at the revocation hearing.

Prellwitz, 578 F.2d at 192. The basis for rejecting the Morrissey requirement was not made explicit. The Ninth Circuit, in Comito, expressly held that requiring the state to show good cause was critical. Comito, 177 F.3d at 1170.

The court in Prellwitz offered two reasons that admitting the contested evidence was proper: that the documents were a “conventional substitute for live testimony” permitted by Gagnon and that they bore indicia of reliability, using language suggesting this was premised on the business records exception. Prellwitz, 578 F.2d at 192-93. This case, however, preceded Comito by two decades, and as noted, employed rationale that Comito squarely rejected.

Rights in relation to criminal defendants

30. It is a significant concern that procedures for parolees do not exceed the rights due criminal defendants. As noted above, it is well-established that the process due in parole revocation and similar proceedings is distinctly limited in relation to the rights of criminal defendants, and that due process for parolees arises from the Fifth and Fourteenth Amendments rather than the Sixth Amendment. Morrissey, 408 U.S. at 482, 92 S.Ct. 2593; Hall, 419 F.3d at 985-86.

Defendants cite to two Supreme Court decisions, which held that evidence that falls within a firmly-rooted hearsay exception has sufficient guarantees of reliability to satisfy the Confrontation Clause requirements in criminal proceedings. Ex. 2 to Ex. B at 6:3-14, citing White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Defendants argue that, given the High Court’s decisions, that same evidence should be sufficiently reliable to be admitted under the less rigorous protections in a revocation proceeding, a principle discussed in Hall. Ex. 2 to Ex. B at 6:3-14.

Plaintiffs argue that the principle announced in White and Wright was overturned in Crawford v. Washington; Plaintiffs are only partially correct. Ex. 3 to Ex. B at 5:7 — 7:2. In Crawford, the Supreme Court held that testimonial evidence could not be admitted without confrontation in a criminal trial unless the declarant was unavailable and the accused had had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). But the Court expressly limited its holding to testimonial evidence, which, while not fully defined, included, at a minimum, prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and police interrogations. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The Court left open the possibility that its earlier cases might still control as to other types of hearsay. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. (“Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.”) The Court expressly declined to say whether it would overrule White, one of the cases standing for the proposition that hearsay within a firmly rooted exception satisfies the Sixth Amendment Confrontation Clause. Id. at 61, 124 S.Ct. 1354.

The Supreme Court has subsequently ruled on one distinguishing aspect between testimonial and nontestimonial evidence in the context of statements to police. Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224, 126 S.Ct. 2266]. In Davis, the Court found that statements, which the trial court had treated as excited utter-dances and present sense impressions, were b testimonial because they were made after the events and the primary purpose was to establish or prove past events potentially relevant to later criminal prosecution. Id. at 2272, 2273-74. It does not appear that the Supreme Court has issued any further decisions concerning the treatment of hearsay exceptions after Crawford.

Thus, it is unsettled whether, and which, hearsay exceptions now provide guarantees of trustworthiness sufficient to satisfy the demands of the Confrontation Clause. United States v. Weiland, 420 F.3d 1062, 1076 (9th Cir2005) (“If the evidence is nontestimonial, there is uncertainty as to whether the ‘indicia of reliability’ or firmly rooted hearsay exception test enunciated in Ohio v. Roberts survives Crawford. ” [citations omitted])

It is undisputed that Crawford does not apply to parole revocation and similar proceedings. See Hall, 419 F.3d at 985. Given the uncertainty in the law in the criminal context, however, no analogy can be drawn as to the standard for admission in the more flexible revocation proceedings. In the absence of clarity about criminal defendants’ rights, the Special Master cannot say whether the Comito balancing test would afford greater or lesser rights to parolees.

31.More persuasive is the argument that, when viewed in context, parolees continue to have significantly fewer rights in revocation proceedings. Ex. 3 to Ex. B at 4:20-27. Even if it were determined that not treating hearsay exceptions as per se admissible affords greater rights to parolees than criminal defendants, the advantage is limited to that aspect of the proceeding. Criminal defendants receive the full protections of the Confrontation Clause, other aspects of the Sixth Amendment, the rules of evidence, and the State’s higher burden of proof, none of which is available to parolees facing revocation. Id.

Reliability as an independent test

32. Defendants present several arguments concerning the role of reliability in determining the admissibility of hearsay. They argue that the indicia of reliability inherent in hearsay exceptions provide an independent basis for admission, rendering any balancing test unnecessary. Ex. 2 to Ex. B at 2:5-12, 7:12-13; Ex. 4 to Ex. B at 6:16-17. Alternatively, Defendants argue that indicia of reliability establish good cause for denying confrontation, either because reliability, alone, can satisfy good cause (Ex. 2 to Ex. B at 2:11-12; Ex. 4 to Ex. B at 2:17-19, 6:16-17, 8:18-23), or because reliability is one of the factors in determining good cause (Ex. 2 to Ex. B at 3:24-26, 10:18-19; Ex. 4 to Ex. B at 3:23-28). Assuming arguendo that reliability of evidence can establish good cause, Defendants do not explain whether, or how, such good cause automatically outweighs the confrontation right in every instance. Finally, Defendants also indicate that reliability may be a factor on both sides of the balancing test. Ex. 2 to Ex. B at 11:14-16.

33. The courts’ use of reliability has been highly inconsistent. Some of the Ninth Circuit’s earlier cases decided hearsay admissibility on reliability alone. Miller, for example, allowed in unauthenticated, but unrefuted, copies of court file contents, declaring them reliable without further discussion. Miller, 514 F.2d 41. Simmons noted a line of cases, including Miller, which determined admissibility of evidence using the reliability rationale. Simmons, 812 F.2d at 564. Although the court in Simmons identified Morrissey and Gagnon as calling for a balancing of the defendant’s right to confrontation against the government’s good cause for denying it, it did not apply that test. The court affirmed the admission of certified hospital records on the basis of their traditional indicia of reliability. Id. at 564-65.

The Ninth Circuit next began applying the balancing test described in Simmons and treated reliability as an element of the good cause prong. See Martin, 984 F.2d at 312 (determining degree of good cause by looking to both the difficulty and expense of procuring witnesses and the traditional indicia of reliability of the proffered evidence). Walker reinforced the balancing test as a requirement but acted on the basis of reliability alone to find that admission without balancing was harmless error. The evidence at issue was solely a date and was unrefuted. Walker, 117 F.3d at 421.

The Comito decision followed, endorsing and developing the previously announced balancing test. Comito dictates considering reliability when assessing the confrontation right prong of the test:

Comito’s interest in confronting Connell directly was further strengthened by the nature of the disputed hearsay evidence. Unsworn verbal allegations are, in general, the least reliable type of hearsay, and the particular utterances at issue here bore no particular indicia of reliability. ... Because the hearsay evidence was important to the court’s finding, and because it involved the least reliable form of hearsay, Comito’s interest in asserting his right to confrontation is at its apogee.

Comito, 177 F.3d at 1171.

The only subsequent Ninth Circuit case on point that the parties have identified appears to use reliability three different ways at different points in the opinion. In Hall, the court first used reliability in determining the degree of the parolee’s confrontation right. Hall, 419 F.3d at 988. Following Martin, the court then weighed reliability as one factor on the good cause side of the balance as well. Id. When summarizing that same section, however, the court seemed to say that reliability was a factor separate from good cause. Id. at 989. (“Although Hall had a strong interest in confronting Hawkins with regard to the false imprisonment charge, on balance, that interest is outweighed by the government’s good cause for not producing Hawkins as a witness and the independent indicia of reliability that support Hawkins’ statements to Officer Gross.” (emphasis added))

34. Other, varied practices are evident in other circuits. The Second Circuit seems to add reliability to the balancing test, weighing both reliability and good cause against the right to confrontation (unless the evidence has already come in under a hearsay exception, as discussed above). See United States v. Chin, 224 F.3d 121, 124 (2d Cir.2000); accord Aspinall, 389 F.3d at 343; accord Williams, 443 F.3d at 45.

35. The cases that indicate that reliability alone suffices for admission are the United States Supreme Court cases whose validity has been called into question by Crawford; Seventh, Second, and Fourth circuit cases; and California state cases. See, e.g., Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); United States v. Jones, 299 F.3d 103 (2d Cir.2002); Prellwitz v. Berg, 578 F.2d 190 (7th Cir.1978); United States v. McCallum, 677 F.2d 1024, 1026-27 (4th Cir.), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982); People v. Maki (1985) 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P.2d 743; People v. Abrams, 158 Cal.App.4th 396, 69 Cal.Rptr.3d 742 (2007).

36. Comito established its balancing test after the cases in which reliability was used as the sole basis for admission, save two California Court of Appeal cases. Given that the Ninth Circuit initially used a reliability approach, and then adopted a multifactorial test throughout the 1990s, it is reasonable to assume that the Ninth Circuit deemed reliability, alone, an insufficient basis for admission. Indeed, in Comito, the court rejected the argument that reliability was enough on its facts, given the defendant’s heightened confrontation interest:

The Government also argues that, even absent a showing of difficulty in obtaining Connell’s testimony, the hearsay evidence bears sufficient indicia of reliability» by virtue of the other testimony and evidence presented at the hearing, to make it admissible. Given the substantial nature of Comito’s interest in confrontation and the absence of good cause for the Government’s failure to produce the adverse witness, the supporting or corroborative evidence noted by the Government cannot suffice to deprive Comito of his constitutional right to confrontation.

Comito, 177 F.3d at 1172. Martin, likewise, used very strong language in rejecting the sole reliance on reliability on its facts:

In essence, the government urges us to hold that urinalysis reports are so inherently reliable that they may be introduced in any revocation hearing .... such a blanket rule would be tantamount to abandonment of the Simmons balancing test; we would effectively hold that the weight of the defendant’s right to confrontation is irrelevant in revocations involving urinalyses ...

Martin, 984 F.2d at 313. Hall, too, followed Martin’s rejection of a blanket rule based on reliability when the court analyzed the second charge against the defendant. Hall, 419 F.3d at 988. The court added that, even when the evidence in question was reliable and corroborated, the defendant’s “strong interest in confrontation is somewhat lessened by the reliability of the hearsay evidence, but it is not defeated” and completed the balancing test. Id. Thus, the most recent Ninth Circuit cases all identify circumstances in which reliability alone is insufficient, illustrating the need for a balancing test.

Conclusion as to hearsay exceptions

37. The existing case law does not provide sufficient reason for varying from established precedent. The Ninth Circuit cases support the continued use of the Comito test and do not provide a clear path toward treating hearsay exceptions differently. Persuasive authority varies substantially from the Ninth Circuit’s reasoning in ways that the Ninth Circuit, through its writings, seems disinclined to adopt. See, e.g., Martin, 984 F.2d at 313-314; Comito, 177 F.3d at 1170.

The Comito balancing test serves all necessary purposes well. It serves administrative flexibility, one of the primary goals of the revocation proceedings jurisprudence. It recognizes that hearsay exceptions have an important role in admission decisions, by increasing reliability and reducing the weight of the parolee’s interest in the balance. It helps ensure that revocation decisions are based on verified facts, to both the parolees’ and the State’s benefit. Use of the test does not give parolees more rights than criminal defendants who are protected by the rules of evidence, the Confrontation Clause, and other guarantees not afforded to parolees. Without any mandate arising from the case law, any change would be within this Court’s discretion. The Court should opt to retain the existing standard set forth in Comito.

In fact, per se admission based on hearsay exceptions would likely have unintended deleterious effects on justice, predictability, and administrative flexibility. Those cases favoring the categorical admission based on hearsay exceptions involved supervised release and probation revocation decisions that were made by judges. See, e.g., Williams, 443 F.3d 35; Jones, 299 F.3d 103; Aspinall, 389 F.3d 332; Hall, 419 F.3d 980. Fewer than half of Defendants' hearing officers (Deputy Commissioners) are lawyers. Ex. B at 81:1-21. The record shows that some of Defendants’ staff, the Special Master, and observers already perceive confusion and unreasonable variability in the application of the existing balancing test. Findings of Fact, supra, ¶ 9-16. To introduce, as new concepts, the nuances of hearsay exceptions and all of their conditions, and to require facility in applying those tests as well as the Comito balancing test — including recognizing and managing hearsay that requires balancing that exists within evidence admissible under an exception — is an invitation to worsening predictable outcomes consistent with due process, not to mention undermining the administrative ease and flexibility meant to attach to these less formal proceedings.

III. Corroboration for hearsay

38. In applying the balancing test, corroboration may increase reliability for proffered hearsay. Defendants argue that various types of proffered evidence may serve as corroboration, including other hearsay; Plaintiffs disagree. Ex. 2 to Ex. B at 9:26-28.

39. While neither party offers federal authority directly on point, Defendants cite Hall and Comito as examples where hearsay was used to corroborate other hearsay, suggesting implicit endorsement of the practice. Ex. 2 to Ex. B at 10:2-4.

In Hall, the court analyzed separately the alleged victim’s unsworn statements concerning a domestic violence allegation and a false imprisonment violation. Hall, 419 F.3d at 986-89. Because the government’s good cause was found to outweigh the defendant’s interest in confronting the hearsay offered on the first charge, the evidence was admitted. Id. at 987. The court then considered corroboration for the hearsay offered on the second charge. The corroboration took the form of: the hearsay statements on the first charge that were admissible by virtue of surviving the Comito balancing test, four pieces of testimony based on direct observations, defendant’s admissions, and four pieces of testimony recounting the alleged victim’s unsworn verbal allegations to those witnesses. Id. at 988. Thus, the court used both hearsay and nonhearsay evidence to corroborate the hearsay at issue; it did not discuss the differences between the types of corroboration, nor did it rule on what types are permissible.

In Comito, the court examined whether nonhearsay and hearsay evidence supported the charge; the court did not consider whether the corroborating evidence should make the contested piece of hearsay admissible. Comito, 177 F.3d at 1168-69. In fact, it noted:

[wjhile the additional evidence may also be subject in whole or in part to valid objections based on hearsay and Comi-to’s right to confrontation, those challenges are not raised before us.

Id. at 1169. This dictum emphasizes that the court was only working with the record before it; the gratuitous inclusion suggests that the court might not otherwise have admitted or used that hearsay. This court also did not rule on what types of corroboration are permissible.

40.There are also persuasive California state cases that may be useful to consider. The California Supreme Court considered corroborating evidence while applying a test similar to that employed in Comito. In People v. Arreola (2004) 7 Cal.4th 1144, 31 Cal.Rptr.2d 631, 875 P.2d 736, the California Supreme Court specified that corroborating evidence must itself be admissible:

Thus, in determining the admissibility of the evidence on a case-by-case basis, the showing of good cause that has been made must be considered together with other circumstances relevant to the issue, including ... whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony

Arreola, 7 Cal.4th at 1160, 31 Cal.Rptr.2d 631, 875 P.2d 736 (emphasis added).

Similarly, one California appeals court ruled against California’s Board of Parole Hearings in a challenge to the exact practice the Board now proposes. See In re Miller, 145 Cal.App.4th 1228, 52 Cal.Rptr.3d 256 (2006). In Miller, to corroborate the alleged victim’s unsworn verbal statements to a law enforcement officer, the State offered hearsay statements of third-party witnesses and an uncertified medical report containing further unsworn statements by the alleged victim. Id. at 1238, 52 Cal.Rptr.3d 256. The court rejected this, writing:

adopting such a criterion would eviscerate the need to provide indicia of reliability before hearsay evidence is received. Were this standard adopted, unreliable hearsay evidence could become reliable simply by attributing the evidence to several sources.

Id.

41.While the cases concerning corroboration raise uncertainties, on balance, it appears that these courts expect corroboration to come from competent evidence. This is certainly consistent with traditions, and the Special Master recommends a ruling that corroboration may only be drawn from admissible evidence, which may include hearsay that has survived its own Comito balancing test analysis.

IV. Continuing hearings beyond the Valdivia deadline

42. Plaintiffs allege that Defendants sometimes respond to a confrontation rights objection by postponing the hearing beyond the deadline prescribed by the Permanent Injunction, as an opportunity to provide more competent evidence. Ex. 1 to Ex. B at 19:9-24. It is undisputed that this practice occurs, though Defendants take the position that seeking further evidence for this reason can constitute good cause for exceeding the deadline. Ex. B at 92:4-8. Plaintiffs provided the revocation hearing record of a case in illustration. See supra at-. The record contains no further evidence of the potential frequency or impact of such a practice. Ex. B at 37:7 — 40:21. Neither party provided authority for their positions.

43. There is merit to the arguments that a parolee has a right to expect a final hearing within 35 days, as required by Paragraph 22 of the Permanent Injunction, and that the State must meet or fail in its burden by that time, absent unforeseeable events. However, there is not sufficient evidence in the record to support a court order, so the Special Master does not recommend one.

V. Representation for writs of habeas corpus

44. Plaintiffs take the position that, in order to enforce confrontation rights, parolees should have representation available for writs of habeas corpus. Ex. 1 to Ex. B at 20:22 — 21:3. Plaintiffs assert that Defendants should be required to fund this representation because the complexity of the issues necessarily carries the risk of error, implementation has been problematic long-term, and the rights at stake are critical. Ex. B at 79:16 — 80:25; Ex. 1 to Ex. B at 20:15 — 21:16.

Plaintiffs note that Defendants committed to funding writ representation as to one other potential violation of the Permanent Injunction, designation of confidential information. Ex. 1 to Ex. B at 21:3-5. Appellate representation is not funded for any other Permanent Injunction provision, so this would be a significant departure from current practice and a substantial increase in Defendants’ obligations. The risk of harm to individuals whose confrontation rights are denied unreasonably is, without a doubt, significant. Were those parolees entirely without a remedy, we would face a different situation, but they do have the remedy of writs of habeas corpus. It is likely that many parolees’ lack of sophistication and resources hinder effective use of this system. But the parties did not present any authority compelling Defendants to take responsibility for counteracting this, or any reason to believe that the proposed funding would not be better spent on an internal system to identify and rectify these problems directly. The Special Master recommends denying the request for an order requiring Defendants to fund such representation.

RECOMMENDATIONS

A. Defendants distributed policies and procedures as required by the relevant provision of the Permanent Injunction. Defendants provide some instruction on applying the legal standards and exercise some oversight. When Defendants took a position that their obligations had changed, it was based on a good faith interpretation of the case law. It appears that they have not instructed Deputy Commissioners to vary from Comito balancing. They negotiated policy revisions in good faith and sought clarification of the legal standards before proceeding further in negotiations. Therefore,
■ The Court should not find a violation of the Permanent Injunction.
B. Nevertheless, Defendants have not demonstrated that they are in compliance with Paragraph 24 of the Permanent Injunction. Confusion, inconsistency, incorrect application of standards, and failure to apply the required tests have been known for a prolonged period. Yet Defendants have taken no action to identify the scope of the problem and have not taken adequate steps to address the conditions that perpetuate potential misapplications of the law.
Those conditions include the fact that some hearing officers have little experience in the law, training has been limited, policies and procedures contain inaccurate statements of applicable law, and Defendants have not subsequently assessed Deputy Commissioners’ understanding nor provided detailed standards, guidelines, or tools to support decisionmaking. Failures in evidentiary decisions carry a high risk of harm, including the denial of due process and denial of liberty without evidence adequate to meet the State’s burden of proof. Defendants have not demonstrated the capacity to independently remedy these deficiencies. Therefore the Court should order:
1. The parties must undertake forthwith, and sustain, efforts to revise policies and procedures, including guidelines and standards, that incorporate these principles:
O Decisions about whether to admit proffered hearsay must be made on case-by-case basis. The weight accorded the balancing test factors, contested evidence, and supporting evidence will vary with facts and circumstances.
O Parolees have a right to confront and cross-examine adverse witnesses unless the Deputy Commissioner specifically finds good cause for not allowing confrontation; these two factors must be weighed against each other.
O The principal factors in assessing the weight of a parolee’s confrontation interest are (1) the importance of the proffered evidence to the ultimate finding and (2) the nature of the facts to be proven by the proffered evidence, which tends to be treated as an assessment of reliability.
O The parolee’s interest in confronting the contested evidence is high if the evidence will be important to the ultimate finding or if the evidence is potentially unreliable.
O If the proffered evidence would be admitted in civil or criminal proceedings under a hearsay exception, this increases its reliability and makes it more likely to be admitted because the parolee’s interest is lessened.
O If nonhearsay evidence corroborates the proffered hearsay, this also increases reliability and makes the hearsay more likely to be admitted. Hearsay cannot be used to corroborate proffered hearsay unless it, too, survives a Comito balancing test.
O The severity of the penalty a parolee faces is also a factor that could affect his confrontation interest.
O The Deputy Commissioner must assess the good cause for the witness not testifying. This includes, at least, inquiring into the efforts made to have the witness attend, whether attendance is difficult or expensive, and whether the witness is a confidential informant whose identity is unknown to the parolee.
O Reliability of the hearsay is not a factor in determining whether the state had good cause not to produce a witness.
O Deputy Commissioners may also take into account other factors on either side of the balancing.
O The final decision whether to admit the proffered hearsay is reached by comparing the strength of the parolee’s interest concerning this particular evidence to the state’s good cause and determining which outweighs the other.
2. Defendants must provide a plan, within 60 days after policies and procedures have been negotiated, that contains the following components:
O Training must be provided to Deputy Commissioners, to parole agents and such other Division of Adult Parole Operations staff as Defendants believe are appropriate, and to attorneys representing parolees in revocation proceedings.
■ Plans for initial training should give serious consideration to contracting for the services of professional trainers with experience in evidentiary law and/or administrative proceedings willing to adopt
curriculum that results from the parties’ efforts. If Defendants propose not to employ this method, they must provide a detailed description of enhanced training that will be as rigorous as training that would be provided under such a contract, and the Special Master must approve such a proposal.
■ Plans for initial training must include expeditious timelines for delivering the training and must identify the amount and source of funding necessary to carry it out.
■ Continuing education on applying the legal standards concerning confrontation rights to revocation proceedings must be provided, annually at a minimum, for all of the above-described staff and contract attorneys.
O Deputy Commissioners must meet minimum standards in order to conduct the complex task of revocation hearings. Defendants’ plan must define those minimum standards; the methods by which Defendants will determine whether Deputy Commissioners have met the standards; and the methods by which Defendants will determine whether Deputy Commissioners conducting revocation hearings continue to meet the standards, assessed at regular intervals and, at a minimum, annually.
O Defendants’ plan must include conducting a qualitative assessment, at regular intervals, of whether Deputy Commissioners are applying the standards within an acceptable range of discretion. This effort should include at least these components:
■ Develop, either internally or in conjunction with the administrators of the attorney panel representing parolees in revocation proceedings, an information system solution to support assessments. That system must capture information sufficient for Defendants to conduct systematic examinations of substantive due process questions. It must also permit aggregate analysis, identification of trends, sorting and reporting by relevant factors, and individual case analysis.
■ For each Deputy Commissioner conducting revocation hearings, Defendants’ reviewers must observe him or her in those hearings at least twice annually.
■ The assessment must include an examination of what further training or remediation is needed for an individual or for staff more generally. That training should be provided expeditiously.
■ A system of remediation must include following the CDCR progressive discipline system. It should emphasize further training and counseling to develop an individual’s skills, and make use of letters of instruction and further methods when necessary.
O Any components of this plan that can practically be implemented independently must be implemented shortly after the parties reach agreement. They must not be held in abeyance pending completion of the full plans required under these orders.
O Development of these policies, procedures, training, and plans shall proceed under the guidance of the Special Master. The Special Master or a Deputy Special Master shall lead negotiation sessions.
Alternatively, the parties may agree to negotiate in the absence of the Special Master and provide monthly progress updates, unless and until the Special Master determines that progress is unsatisfactory under this arrangement, at which time the Special Master would become involved in the negotiations.
C. No order is warranted concerning deferring hearings to obtain more competent evidence.
D. Representation for appeals is not required under the Permanent Injunction and is funded for only one type of potential violation. While Defendants’ practices concerning confrontation rights are deficient and do not appear remediable without further Court oversight, Defendants have proceeded in good faith and there is no evidence that deficiencies are so egregious that they cannot be addressed without first attempting the remedies ordered above.
■ Plaintiffs’ request to require the state to fund representation for writs of habeas corpus challenging decisions to admit contested evidence should be denied.

Feb. 8, 2008.

INDEX TO EXHIBITS

VALDIVIA REMEDIAL PLAN POLICY OUTLINE

VIOLATION OCCURS

There are a myriad of circumstances under which a Parolee can violate his or her conditions of parole. There are approximately 100,000 parole violations . referred to the Board of Prison Terms each calendar year.

Currently about 60% of the reported violations are the result of arrests by local law enforcement. Of that 60% arrested by local law enforcement, many are charged in the local jurisdictions for crimes against the state, while others are not charged locally but instead referred to the Board-of Prison Terms for administrative disposition.

The remaining 40% are arrests that involve the Parole officer, which may also result in local charges or referral to the Board of Prison Terms for administrative disposition.

The average parole violator’s term in prison is five and one half months.

Approximately 66% of the cases referred to the Board of Prison Ternas are resolved prior to the revocation hearing. Last year, the Board of Prison Terms conducted approximately 37,000 revocation hearings.

REMEDIAL SANCTIONS

As part of the overall reform of die revocation process, the Parole and Community Services Division of the Department of Corrections will begin using remedial sanctions/community based treatment placement in January of2004.

Some of the remedial sanctions/community based treatment programs that will be used are the Substance Abuse Treatment Control Units, Electronic Monitoring, Self-Help Outpatient/aftercare programs, and alternative placement in structured and supervised environments.

These remedial sanctions are not considered violations of parole because participation in the remedial sanctions program is voluntary and participation in the remedial sanctions program will not make the parolee presumptively ineligible for discharge at 13 months.

The goal is to reduce the number of returns to prison for violations of parole by up to 10% in 2004 and by up to 30% by 2006.

UF REMEDIAL SANCTIONS ARB DEEMED INAPPROPRIATE AND A PAROLE HOLD IS PLACED ON THE PAROLEE. A PROBABLE CAUSE DETEB3VCTNATION/REVIEW WILL TAKE PLACE WITHIN 48 HOURS OF THE HOLD AND IF THE HOLD IS PLACED ON A weekend or Holiday, the probable cause review WI1L BE CONDUCTED NO LATER THAN THE NEXT BUSINESS DAY FOLLOWING THE HOLD BEING PLACED.

Although this probable cause review for parolees is not required under any of the current, relevant case law, it is being put in place in an attempt to take a second look at those individuals who have been placed into custody to determine if the "present danger to public safety” concern still exists or if remedial sanctions/community based treatment is possible at this juncture.

As an example, a parolee who was strong out on dope may have “dried out” sufficiently that he or she is no longer a danger to him or herself or the public and may be an appropriate candidate for community based treatment in a structured, supervised program.

Under such a scenario, the parolee would be released to a community based treatment program with the understanding that a specific condition of his or her release is the completion of the program and any other special conditions of parole that the Parole Agent deems appropriate.

Current regulation and case law require any special conditions of parole to have a nexus to the parolees’ commitment offense or behavior;

PAROLEE IS GIVEN ACTUAL WRITTEN NOTICE OF CHARGES WITH A SHORT FACTUAL SUMMARY OF THE BEHAVIOR; THE NOTICE OF RIGHTS REGARDING THE REVOCATION PROCESS; AND THE BPT 1073 ADA DETERMINATION IS MADE VIA Á FACE TO FACE INTERVIEW WITHIN 3 BUSINESS DAYS OF THE HOLD BEING PLACED.

If the remedial sanctions are deemed inappropriate, Within three business days of the hold being placed, the parolee shall be served actual notice of the charges against him or her accompanied by a short factual summary of the behavior; he or she shall be interviewed; an a ADA determination shall be made; the BPT form 1073 shall be completed, and parolee shall be provided with a written notice of rights regarding the revocation process and time frames. (Hereinafter referred to as “notice.”)

The principles of “effective communication” apply to the revocation process. AÍDA accommodation must be provided for all parolees when necessary. In addition, all forms shall be printed in Spanish and English and a Spanish speaking person shall be available to interpret and explain the forms to the parolee where necessary.

THE PROBABLE CAUSE HEARINC SHALL BE CONDUCTED WITHIN 10 BUSINESS DAYS FOLLOWING THE DATE OF ACTUAL SERVICE OF THE NOTICE OF CHARGES, THE ADA DETERMINATION. AND THE NOTICE OF RIGHTS.

Within the first 3 days after the parolee has been served with notice, the violation report must be completed and submitted to the Parole Unit supervisor.

On or before the fourth business day, the Unit Supervisor most review the report and: (1) determine if there is sufficient basis for the revocation to go forward; (2) determine if the report is accurate, complete, and contains the correct Title 15 violation sections; and (3) review the report and consider whether or not remedial sanctipns/community based treatment is appropriate in lieu of proceeding with referral to the Board of Prison Terms with a recommendation that the parolee be returned to prison.

On or before the 4th business day, the revocation packet is reviewed by the Parole Administrator to determine whether or not there is a sufficient basis for the case to move forward and whether or not Remedial Sanctions/Community Based Treatment is appropriate at this juncture.

On of before the 5th business day, the revocation packet is forwarded to the decentralized revocation unit where the parolee is being held'.

On or before the 6th business day, the parolee (including non-Armstrong class members) shall be appointed an attorney and the attorney shall be provided with a copy of die revocation packet, which shall contain á signed copy of the notice of charges, notice of revocation of rights, and a completed BPT1073.

Attorney shall meet with the Parolee, provide the parolee with a copy of the revocation packet, and shall communicate any. offer or offers made by the Board of Prison Terms Deputy Commissioner/Parole Administrator prior to the probable cause hearing.

In the event the parolee can make a sufficient offer of proof of a complete defense to the charges the Board of Prison Terms Deputy Commissioner/Parole Administrator, an expedited Probable Cause Hearing with Documentary and/or live testimony shall be scheduled. As an example, if the parole has uncontroverted documentary evidence that he or she was in Santa Rita jail when this violation allegedly occurred in Los Angeles, parolee shall be allowed to present such evidence at an expedited probable cause hearing between the 6th and 8th business day or at the earliest time possible thereafter if parolee is unable to produce such evidence by the 6* to S"1 day.

On or before the 6th to 8th business day, a return to custody assessment (an offer) is made by the Deputy Commissioner/Parole Administrator, and the offer shall be communicated to the parolee's attorney.

On or before the 10th business day, a Probable Cause Hearing shall be held wife the Deputy Commissioner/Parole Administrator, the parolee, and parolee’s attorney.

The Deputy Commissioner/Parole Administrator conducting the hearing shall be the same Deputy Commissioner/Parole Administrator who made the return to custody assessment (offer) where practicable.

Parolee shall be permitted to present documentary evidence and hearsay testimony by way of offer of proof through his or her attorney in mitigation or as a partial or complete defense to the charges and/or the proposed disposition.

The Deputy Commissioner/Parole Administrator shall have the complete range of options to resolve the case. (Continue on parole, credit for time served, release from custody with pending charges, remedial sanctions/community based treatment, reduce the offer.downward, dismiss some or all of the charges)

The Deputy Commissioner shall not have the authority to adjust the return to custody assessment upward at or during the probable cause hearing.

Parolee shall have the right to waive time as to any of these hearing time constraints with or without good cause.

Attorney shall have the right to a continuance upon the showing of good cause in the absence of bis or her client’s consent in cases of emergency or illness or upon such other showing that the Deputy Commissioner/Parole Administrator can make a finding of good cause.

There shall be a written record of this proceeding and the basis for any decisions made therein.

It is not necessary that the Probable Cause Hearing be audio/vldeo recorded.

If at the conclusion of the probable cause hearing, the parolee has rejected the offer, parolee shall provide the Deputy Commissioner/Parole Administrator with a list of witnesses he or she would like to call at the revocation hearing. The location of the hearing shall be determined (within 50 miles of the violation), and the Deputy Commissioner/Parole Administrator shall make an independent ADA accommodation determination.

REVOCATION HEARING

The revocation hearing shall be held at the earliest possible time and in no case later than 35 calendar days after the parole hold has been placed.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to defendants about this — December 15th, 2006, to be clear, one year ago tomorrow. It's not just that it's been a year — it's been documented for quite some time, and in the Mastership's own report, that the implementation of Comito has been problematic — it's been an ongoing problem. And I think both parties would recognize that Comito is complicated. It's not just — there's not sort of a willful desire not to follow the law in Comito; it's that Comito is complicated. And when many of your hearing officers or lay hearing officers — really, very, very detailed and ongoing training is critical. Perhaps testing or something to gauge the commissioners' levels of understanding is needed. But what's very clear — based on the outcomes, based on the evidence that we put forth in our moving papers, and based on what we even hear from attorneys is that — and see in revocation hearings — it's that it's not working. Comito is not working. Confrontation rights are being trampled. And I think that's why it's Plaintiff's position that this rises above other levels of violations within the Valdivia case. 80 IBAIIKLEYj | C*arl [

1 2 3 4 5 6 1 8 9 10 11 12 13 14 15 16 11 18 19 20 21 22 23 24 25 separates out the independent indicia of reliability as though it were a separate factor. MR. STEWART: In that same paragraph? DEPUTY SPECIAL MASTER MORRISON: Right. MR. STEWART: So just to be clear, you're reading the conjunctive. So this is where that interest is outweighed by the Government's good cause for not producing Hawkins as a witness and independent indicia of reliability? That portion? DEPUTY SPECIAL MASTER MORRISON: Right. That portion. MR. STEWART: So you're reading that in the conjunctive to say that both the good cause and separately or independently the indicia of reliability would outweigh? DEPUTY SPECIAL MASTER MORRISON: I'm saying it can can read that way. So I'm wondering what your response to that is. MR. STEWART: My read of that is simply that the Court is acknowledging that in this particular case indicia of reliability were important. They were important to decreasing Hall's interest in confrontation that the Court had characterized in the false imprisonment claim. The Court had characterized that interest as 102 BARjttey

EXHIBIT B — EXHIBIT 2

Page 1 of 2

Ginny Morrison

From: Jessica Devencenzi [Jessica.Devencenzi@doj.ca.gov]

Sent: Tuesday, January 22,2008 4:53 PM

To: Ginny Morrison; 'Chase Riveiand'

Cc: Katharine’ 'Nelson; Vickie Whitney; 'Ernest Galvan'; 'Loren G. Stewart*

Subject Re; Comito document still needed

Attachments: RD 2.pdf; RD1.pdf; RD3.pdf

Good Afternoon,

In response to the Deputy Special Master’s-inquiry, attached please find the portions of the DC manual that pertain to Comito to which Ms, Cassady referred at page 69 of the first hearing transcript. The attachments include Resource Document #1, Resource Document #2 and Resource Document #3. Moreover, a copy of the Comito case was distributed in 2004 with these materials but since all have a copy of Comito, we are not reattaching it at this time. Please let us know if you need anything further.

Thank you,

3esska R. Devencenzi Deputy Attorney General Correctional Law Section Office of the Attorney General (916)322-6104

»> Ginny Morrison <gmorrison@cdlaboratiorv-5pedalists.com> 1/18/2008 10:43 AM >»

Dear All,

In the notice concerning the second hearing, we requested the document described below. We will still need that document and intend to make it part of the record underlying the upcoming Report and Recommendations.

* The policies and procedures concerning the application of Comito and related case law that were distributed to Defendants' staff in July 2004 (as mentioned on page 69 of the fust heating's transcript)

Please provide a copy by email at your earliest opportunity.

Thank you,

Ginny Morrison

Deputv Special Master, l 'oLtiwa

415 -456-5038 / 415-449-6377 (FAX)

1/29/2008

ASSESSING EVIDENCE IN REVOCATION PROCEEDINGS

INTRODUCTION

Determining the truth of the charge and appropriate disposition at a revocation hearing Is often a simple process. When the evidence is clear a conclusion is not difficult to reach, but when the evidence is not so clear the process can require careful analysis. Most, if not ail, Deputy Commissioners have had difficulty arriving at a decision and/or doubts as to the appropriateness of their findings. It's inherent in the process.

Many times there is no amount of evidence that will eliminate all doubt In all cases. However, any reasonable person with the ability to gather facts, analyze the relevance of those facts, and arrive at a conclusion can be successful as a hearing officer. Because revocation proceedings are administrative in nature the rules and procedures differ from those that are used in courts of law. Fairness is the most Important factor. The hearing officer is given wide discretion and is allowed to receive many forms of relevant, material, trustworthy and reliable evidence, including hearsay.

The process of assessing evidence presented during the revocation proceedings will be approached differently by each Deputy Commissioner (DC) depending on (he individual. Those who have practiced law will put their experience to good use, as will those who have spent long careers working with offenders, Although there are some rules that must be followed the primary goal is to hear, read or see all the available and relevant evidence and arrive at a conclusion based on that evidence.

This Resource Document will not provide a comprehensive knowledge of the rules or evidence nor is it suggested that such knowledge is required to fulfill the responsibilities of the Deputy Commissioner. This document is intended to provide a general understanding of what should and should not be considered and the reasons why.

What is Evidence?

The California Evidence Code at §140 defines evidence as:

"Evidence" means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.

Evidence is defined in Black's Law Dictionary as:

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Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.

The rules of evidence regulate what evidence Is admissible in the different judicial and administrative settings and when they are admissible.

Evidence in Administrative Hearings

The technical rules of evidence contained in the California Evidence Code do not apply to Administrative Hearings. The California Code of Regulations states:

CCR Title 1 §1147(c) states:

(c) The hearing need not be Conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted If it Is the sort of evidence on which responsible parsons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory, rule which might make improper the admission of such evidence over the objection civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient in an of itself to support

finding unless it would be admissible over objection in civil actions. The rules of privileges shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing. Irrelevant and unduly repetitious evidence shall be excluded.

CCR Title 15 § 2665 states:

General. All evidence relevant to the charges or disposition is admissible in parole postponement, rescission and revocation hearings.

The court in In re Carroll (1978) 80 Cal App: 3d 30 held that all evidence is admissible in Administrative Hearings. The Court's comment was that "The Adult Authority, in considering a parole revocation, is generally permitted to consider all relevant evidence...[including hearsay].” In the case the officers testified as to the absent victim’s statements about the burglary and assault. The officers had been on the scene, had seen the condition of the victim, including bruises and chain marks, and had seen the entry window with a screen removed. In other words, there was significant corroborating evidence (In re Douglass (1988) 206 Cal.App.3d 866). Evidence suppressed in the criminal proceeding is admissible unless the method shocks the conscience.

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Physical evidence is ordinarily not brought to the hearing unless there is no other means to present the evidence. CCR15 §2667.

The standard of proof is preponderance of evidence. Even if a criminal case is dismissed or there is an acquittal, the hearing officer may still find good cause. See In re Dunham (1976) 16 Cal.3d 63, 66.

Assessment and Evaluating Evidence in the Revocation Process

In the revocation process the question regarding evidence is not usually whether it is admissible, but rather what weight it will be given. As stated above, all evidence that is relevant is admissible.

Relevant evidence is defined in Black's Law Dictionary as evidence:

“Applying to the matter in question; affording something to the purpose" In determining whether the evidence is relevant the DC must determine if directly or by inference the evidence wilt heip decide rf the parolee committed the violation.

Once the DC has determined that the evidence is relevant the next step is to decide what weight to give to the evidence, the weighing process discussed more thoroughly under “Hearsay" applies to all admitted evidence. Briefly the DC must determine if how trustworthy and reliable the evidence is and how important is it in determining the • elements of the violation. The more trustworthy and reliable the evidence the more weight it should be given toward determining good cause on the charge or one of the elements of the charge.

New information

On occasion new information on a charge(s) will be discovered by P&CSD after the parolee has been served, but prior to the hearing. Every attempt will be made to get the new information to the attorney prior to the hearing. If this is not possible and P&CSD attempts to present the information at the hearing the DC shall, before reviewing the information, ask the representative of P&CSD to explain why thé information was not included in the revocation packet. The DC will then give counsel and the parolee an opportunity to review the information privately. If counsel requests a postponement with a time waiver to prepare a defense of the new information the DC will review the new information to determine if it significant enough to warrant a postponement. If so a postponement with a time waiver will be granted. If not the DC will deny the request for postponement, but will not use the new information in determining good cause.

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Written Briefs

Written briefs submitted bv the parolee's attorney should be submitted in timely manner. Allowing for due consideration and a response by ail appearing parties and the hearing officer. Matters not submitted In a timely manner will either, not be received into evidence or will result in a continuance of the proceedings to give an opportunity to review and respond. The appropriate determined of how the evidence will be handled will be made by the Deputy Commissioner.

Confidential Information

No decision shall be based on information that is not available to the prisoner [parolee] unless the information has been designated confidential the rules of the department and is necessary to the decision (CCR Title 15, Div. 2 § 2235). The determination of whether the Information Is confidential is within the discretion of CDC under CCR Title 15, Div. 3 § 3321. When using information that has been designated confidential the DC shall inform parolee and/or counsel that the confidential information is being used. If the information is relied on in reaching a decision it shall be documented and the parolee shall be notified of the reports on which the hearing officer relied. (See Resource Document 3, Witness Selection and Approval).

Hearsay Evidence

Hearsay evidence is by far the most common type of evidence á DC will come across and it is the most difficult to understand. Relevant hearsay evidence is admissible in administrative hearings. Again the question will be how much weight to give the evidence. The following will attempt to clarify as much as possible the use of hearsay evidence in the parole revocation hearing process by using and analyzing the most recent case, Comito.

The California Evidence Code at §801 (c) defines hearsay as:

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(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Hearsay is defined in Black's Law Dictionary as:

Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. That which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and it is admitted only in specified casas from necessity.

The issue with the use of hearsay evidence is the conflict between the use of the hearsay evidence and the parolee’s Sixth Amendment right to confront adverse witnesses.

The rule is simple, but the application can be somewhat complex. In court, in order for hearsay to be admissible, avBn though very probative, it must fall under one of the many exceptions to the hearsay rule. The reason that the hearsay evidence is inadmissible in court is that it is considered unreliable and untrustworthy. The reason that hearsay that fails under one of the exceptions is admissible in court is that the hearsay under the circumstances of the exceptions Is considered reliable and trustworthy. In the revocation hearing all hearsay is admissible and the issue is what weight to give to the hearsay evidence, in determining the weight to give the evidence the hearing officer must decide if the evidence is trustworthy. The more trustworthy the evidence the more weight it should receive and the more likely to outweigh the right to confront adverse witnesses. Therefore unlike court where the hearsay evidence can not even be heard in the parole revocation hearings the evidence can be heard and the hearing officer is responsible to determine its reliability, trustworthiness and weight it is given.

Case law has over the decades has discussed the appropriate weight to give to hearsay testimony, all confirming that it is admissible in parole revocation proceedings. The most recent case that addressed the hearsay issue set forth the clearest guidelines regarding weight given to hearsay testimony in parole revocation hearings.

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U.S. v. Comito (9th Cir. 1999) 177 F. 3d 1166

Summary of the facts of the case: {although the statement of facts are lengthy, in order to understand the reasoning and balancing the court sets forth it is necessary to know the facts of the case). Italics have been added to points to be covered in discussion.

The Comito case involved a parolee that was under federal supervision. There were three violations involved. Mr. Comito admitted to two of the violations, but denied the Fraud charge which carried significantly more return to custody. time. The basis of the alleged fraud violation was the accusation made by Deirdre Connell, Comito's former girlfriend and roommate, to Comito's probation officer, Officer Perdue, that Comito had used her bankcards, credit cards and checks without her permission. Conneil was not present to testify at the initial revocation hearing. Her evidence was expected to be critical to the determination of that violation, the district court granted a continuance so that the government could subpoena her. However, Connell still was not present at the continued hearing. At the beginning of the hearing, counsel for the government stated his intent to offer the testimony of Officer Perdue regarding what Connell had said to him concerning Comito's use of her cards and checks. .Comito's lawyer strenuously objected to the use of this hearsay testimony to prove the violation and forcefully asserted , that its admission would violate his client's confrontation rights.

When the government was asked about the witness's absence they indicated that they were unsuccessful in subpoenaing her and that based on what she had told the parole agent she was fearful of physical harm by Comito’s associates if she were to testify. Comito’s counsel stated that he had personally spoken to Connell a half an hour prior to the hearing, and she had told him that the only reason she had made the allegations was because she and Comito had broken up. She stated to him that she would not repeat the allegations at the hearing. She had indicated to counsel that her reluctance to testify was due to fear of perjury charges or other repercussions should she change her story. Comito’s counsel stressed that, to the best of his knowledge, Connell was not afraid of his client that she had been visiting him almost daily and making telephone calls to Comito at the Detention Center. The District Judge ruled that the hearsay in this case was going to be considered that if this was the only violation it may insist on Connell being present to testify.

Officer Perdue then testified as to what Connell had told him about the alleged fraud (hearsay). According to Officer Perdue, Connell contacted him in early January 1998, and accused Comito and an unknown associate of taking her credit cards from her wallet and using and then replacing them. She also claimed that checkbooks from two different bank accounts had been stolen, and checks had been forged and sent to her credit card companies to cover some of the unauthorized transactions. Officer Perdue did not testify as to any efforts to subpoena Connell or fry fo get her to come to the hearing. Nor did he provide any explanation for her absence, or restate under oath the statements attributed to him earlier in the proceeding by counsel for the Government.

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In addition to Officer Perdue's testimony regarding Connell's allegations, the government offered four other pieces of evident» concerning the transactions: stipulated testimony of a Las Vegas Police Detective that Connell had reported unauthorized bank card transactions, that no charges had been filed, and that the case remained open; a memorandum written by Connell, apparently at Officer Perdue's request, listing the dates and amounts of the transactions in question; several of Comito's unemployment compensation documents and his December 1997 bank statement; and. Officer Perdue’s testimony regarding his discussion with a credit card fraud investigator about the investigator’s conversations with Connell and Comito. Only Officer Perdue's testimony regarding what Connell purportedly told him is at issue in this appeal. Comito then testified to the following: Throughout his relationship with Connell, each had used the other’s credit cards, and Connell had given him her ATM PIN number so that he could have access to. her bank accounts. Toward the end .of 1997 Connell noticed that one of her credit cards was missing, and he believed she had lost it in a move a few months earlier. In early January of 1998, he moved out of the house he shared with Connell because they were not getting along. Shortly thereafter, he became aware of Connell's concerns regarding unexpectedly large charges on her credit cards and some missing checks. While he did make some purchases with Connell's credit cards during December, he had her consent for these transactions; he took responsibility for these charges, but testified he was not responsible for the other charges or the missing checks. Other individuals, who had used Connell's cards in the past, may have had access to those cards. Following his arrest for the alleged supervised release violations, he and Connell had reconciled and she then told him that she was sorry that she had made the accusations and would withdraw them. She also told him that the unauthorized charges were "still on-going” and that as he was then in jail, she knew that he was not the guilty party.

In the closing argument Comito's counsel again objected to the hearsay as a violation of Comito's right to confront. The District Judge did not rule on the objections, but did find good cause on the charges.

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Comito appealed the finding.

The Court indicates in its ruling that a hearing officer in order to use hearsay must determine the trustworthiness and reliability of the hearsay. In the Court’s ruling it sets forth a balancing test which balances the parolee’s right to confrontation against the use of the hearsay evidence. The weight to be given the right to confrontation in a particular case depends on two primary factors: the Importance of the hearsay to the ultimate finding and the nature of the facts to be proven by the hearsay evidence." (Comito. 177 F.3d at 1171.)

In analyzing the Comito court decision the following need to be considered in determining that the parolee’s right to confront is outweighed by the trustworthiness of the evidence:

1. Is there good cause shown for the alleged victim’s absence even when there were statements regarding her failure to appear that were contrary to the government*s statements for her absence?

The Comito Court indicates in it's ruling that the Gaanon v. Scarpelli (1973) 411 U.S. 778 and Morrissey (1972) cases allow for testimony from absent witnesses if the government can show that there was a diligent attempt to have the witness present and reason for the absence is not the government’s fault.

Comments: The government’s counsel (not under oath) offered the information regarding the alleged victim's absence. When Officer Perdue took the witness stand he did not confirm, under oath, any conversation with the alleged victim regarding her absence, or any attempt to subpoena her. You had unsworn information from the government. You also had unsworn information from Comfto’s attorney, which directly contradicted the government’s information. Both pieces of information were hearsay; both without corroboration could not be. given much weight or equal weight at best. Nonetheless the court carried on to the next issues in the case.

2. Could good cause have been found on the charge without the hearsay testimony?

The Comito Court stated in its decision “Here, the hearsay testimony was, indisputably, important to the finding of the violation. He (Comito) admitted to using the financial instruments, but testified that he had her authorization to do so. Thus, the contested element of the violation was whether Connell authorized Comito to use her cards and checks. The hearsay testimony consisted of the alleged victim’s purported statements regarding that critical question: Officer Perdue testified as to what Connell told him regarding her consent or lack of consent to the use by Comito of her cards and checks. Thus, Comito had á very strong interest in demonstrating that the hearsay testimony did not reflect Verified fact."' The weight to be given the right to confrontation in a particular case depends on two primary factors: the importance of the hearsay evidence to the court's ultimate finding and the nature of the facts to be proven by the hearsay evidence Martin, 984 F.2d at 310-11. “Unsworn verbal allegations are, in general, the least reliable type of hearsay, and the particular utterances at issue here bore no particular indicia of reliability.

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Comments: The Comito Court ruled that if the hearsay testimony will be the main (and here the only) factor in a good cause finding then the hearsay evidence must be deemed highly reliable in order to sustain a finding of good cause. The more weight attached, to the evidence means the more reliable and trustworthy the evidence must be to outweigh the parolee’s right to confrontation. The unsworn, uncorroborated hearsay is the least reliable hearsay. The more corroboration the hearsay evidence has the more reliable and trustworthy it because and the more weight it can be given. Corroboration can be through other testimony (including the parolee’s), documents or physical evidence. Again, we have hearsay testimony without corroboration on both sides. Comito's testimony contradicts the testimony of Officer Perdue. In order for the Officer’s hearsay testimony to carry more weight it would need to be shown more reliable with corroboration. The court did not believe that contrary hearsay information outweighs the parolee's right to confrontation. The court in its decision further indicates that the governments hearsay testimony is unreliable taken the circumstances — the statements were unsworn by the victim and made after a breakup in a relationship with the parolee.

3. Does the significance of the consequences of a good cause finding weigh in determining weight of hearsay testimony?

The district court revoked Comito's supervised release, finding four separate violations of the conditions of his release: the unauthorized use of his former girlfriend's bank cards, credit cards and checks (a "grade B violation") and three lesser violations (“grade Cs"). Comito admitted the grade C violations, but contested the grade B violation. Three admitted grade C violations support revocation of his supervised release, but Comito argues persuasively that because they constitute a lower grade of violation than the alleged fraud, the finding of the fraud violation led to imposition of a far longer sentence.

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Comments: The court In Comito indicates the more severe the punishment as a result of the hearsay evidence is also a factor in how trustworthy and reliable the evidence need be and how much weight It can be given. The implication in the Comito case is that if the use of the hearsay evidence will not make a difference or very little difference in the outcome of the proceedings then less reliable and trustworthy hearsay can be given more weight.

4. Will corroboration make hearsay evidence trustworthy and reliable?

The Court stated, “In addition to Officer Perdue's testimony regarding Connell’s allegations, the government offered four other pieces of evidence concerning the transactions, which to varying degrees provided corroboration for certain aspects of the charge, but which collectively fell far short of the quantum of proof required to support a finding of the charged violation. This evidence consisted of: stipulated testimony of a Las Vegas Police Detective that Connell had reported unauthorized bank card transactions, that no charges had been filed, and that this case remained open; 3 a memorandum written by Conneli, apparently at Officer Perdue's request, listing the dates and amounts of the transactions in question; 4 several of Comito’s unemployment compensation documents and his December 1997 bank statement; and, Officer Perdue's testimony regarding his discussion with a credit card fraud investigator about the investigator’s conversations with Connell and Comito."

Comments: Again, the court discusses Given the substantial nature of Comito's interest in confrontation and the absence of good cause for the Government's failure to produce the adverse witness, the supporting or corroborative evidence noted by the Government cannot suffice to deprive Comito of his constitutional right to confrontation. The court points out that in order for corroborating evidence to give the hearsay testimony more reliability you need to look at what it is corroborating. The first piece of evidence “stipulated testimony of a Las Vegas Police Detective that Connell had reported unauthorized bank card transactions, that no charges had been filed,.and that the case remained open does not corroborate any part of Officer Perdue's testimony that was at issue. It does not corroborate that Comito was the one that used the cards, but simply that they were used without her permission, that is not disputed. The second piece of evidence used for corroboration a memorandum written by Connell, apparently at Officer Perdue's request, listing the dates and amounts of the transactions in question. Again, this does not corroborate that Comito was responsible or would it appear the memorandum written by Connell indicates Comito was responsible just that unauthorized transactions took place on certain dates. The third piece of corroboration, several of Comito's unemployment compensation documents and his December 1997 bank statement. This may corroborate that Comito had funds In his accounts that he can not account for through earnings, but Comito testified that during the month of December he stilt had authorized permission to use Connell’s bankcards. This does not contribute to the reliability of Officer Perdue’s hearsay testimony that Connell stated Comito did not have permission during December. There is no information offered that Comito had unaccounted for money in his accounts after he moved out in early January. The last bit of evidence used to corroborate Officer Perdue’s testimony of what Connell told him is Officer Perdue's testimony regarding his discussion with a credit card fraud investigator about the investigator's conversations with Connell and Comito. This testimony provides us with two problems: why wasn’t that investigator called as a witness and multiple hearsay. The first problem is covered under the same issues as why Conneli wasn’t present, but the second issue of multiple hearsay goes to the reliability of the hearsay testimony. If hearsay is unreliable then it stands to reason that multiple hearsay is less reliable and would need more corroboration to make it trustworthy. Multiple hearsay occurs when the person testifying (Officer Perdue) is testifying to statements made to him by another (investigating officer) that someone else (Connell) made to that person (investigating officer), it would appear that the statements to the investigator were not contained in a report, but rather verbal statements relayed from the investigator to Officer Perdue. Multiple hearsay must be weighed carefully against the parolee’s right to confront. You now have the parolee being denied not only the accuser, but also the investigator that took her statement. Corroboration is extremely important in determining the reliability of hearsay testimony. The more corroboration the more trustworthy the evidence becomes. If you have no victim, but five witnesses that talked to the victim and the victim told each of the five the same version of events the hearsay testimony will Increase in reliability. If you have documents to support the testimony or observations by witnesses that support the testimony these pieces of evidence will increase the reliability and trustworthiness of the hearsay testimony.

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In summary, the Court ruled that the hearing officer (DC), when determining the admissibility of hearsay must weigh the parolee’s right to confrontation against the Government’s good cause for denying it. The two major factors are the significance of the hearsay to the finding, arid how, subject to question, is the accuracy and reliability of the hearsay. The greater the importance of the evidence or the less reliable, the greater is the parolee’s interest in confrontation. DCs need to understand that if hearsay is the only evidence they have and it is very important to the case, then it probably is not admissible.

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Exceptions to the Hearsay Rule

All hearsay is admissible in a parole violation hearing therefore knowing the exceptions to the rule that are recognized by the court and their applications are not necessary, but the exceptions are what the courts have decided make the evidence more reliable, credible and trustworthy. Some of the exceptions that DCs may encounter are listed below:

Physical Abuse (Cal. Evi. Code § 1370)

(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:

(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
(2) The declarant is unavailable as a witness pursuant to § 240.
(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.
(4) The statement was made under circumstances that would indicate its trustworthiness.
(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.

(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following:

(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.
(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.

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(c) A statement Is admissible pursuant to this section oniy if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meat the statement.

Admissions and Confessions (Cal. Evi. Code §§1220 -1228)

An admission is a self-incriminating statement connecting the parolee with the violation, but not amounting to guilt.

A confession is an admission of guilt.

Business and Official Records fCEC § 1271)

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if; (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

it is important to note that although police reports fit the criteria of a business or official record the court in Downie v. Kiincar (1991) 759 F.Supp. 428 citing United States v. Bell, 785 F.2d. 640 (8th /cur, 1986) states “eyewitness police reports cannot be considered conventional substitutes for live testimony, and their reliability is therefore neither automatic nor presumed. Police reports of any kind are 'inherently more subjective than laboratory reports of chemical tests’” “...they may be demonstrably reliable evidence of the of the fact that an arrest was made, (but) they are significantly less reliable evidence of whether the allegations of criminal conduct they contain are true." The reasoning of the court is “because of the adversarial nature of the confrontation between the police and the defendant in criminal cases and that the reports are 'frequently prepared for use of prosecutors, who use such reports in deciding whether to prosecute.’’ “The presence of other indicia of reliability, such as corroboration by the parolee himself or by collateral sources, a highly detailed description in the report, or a conviction on the crimes alleged in the report may render the reports admissible. This determination must be made on a case-by-case basis."

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Evidence of the absence of a business record or entry. (CEC § 1272)

This is when a notation would normally be present in a business record and is mysteriously missing.

Prior Inconsistent statements (CEC §1235)

Statements by a witness that are inconsistent with the statements being made at the hearing.

Prior Consistent statements (CEC §1236)

Statements by a witness that are consistent with the statements being made at the hearing.

Spontaneous Statements (CEC §1240)

Made spontaneously while the declarant was under the stress of excitement caused by such perception.

Declarations aaainst Interest ICEC 1230)

Evidence of a statement by a declarant having sufficient knowledge of the subject is not made Inadmissible by the hearsay rule if the declarant is unavailable as a witness, if the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.

Dvina declarations (CEC §1242)

Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

Evidence of a judgment of conviction for certain purposes (CEC §1300) (felonies)

Court conviction on same behavior, (in revocation hearings it is not exclusively felonies any court conviction for a felony or misdemeanor may be used).

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Declarant unavailable as witness (CEC § 1350)

if it be shown that the declarant of the hearsay statements is • legitimately absent from the hearing and the statements can be corroborated the statements are more reliable. For example the witness moved from the state or in hospital.

The California Evidence Code § 240 defines unavailability as follows:

a) Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.
(2) Disqualified from testifying to the matter,
(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.
(4) Absent from the hearing and the court is unable to compel his or her attendance by its process.
(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.

(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.

(c) Expert testimony which establishes that physical or. mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term "expert” means a physician and surgeon, including a psychiatrist, or any person described by subdivision (b), (c), or (e) of Section 1010.

It is important for the DC to be familiar with the concepts of the Comito case regarding the determination of the reliability and trustworthiness of hearsay evidence and the weighing of the evidence against and the

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16

parolee's right to confrontation and cross examination of witnesses. In all likelihood the majority of objections that the DC will encounter will be the use of hearsay evidence. Being familiar with the Comito court's ruling will assist in determining the proper ruling to these objections.

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PROCEDURAL DUE PROCESS RIGHTS IN THE REVOCATION HEARING

Parolees’ are afforded procedural due process rights under Morrissey v. Brewer, (1972) 408 U.S. 471 and Valdivia v. Schwarzenegger (E.D. 2002) 206 F.Supp.2d 1068. Some of these rights attach at all three stages of the revocation process and some at Just revocation hearings. It is noted where they attach only at the revocation hearing. Parolees’ may waive any of these rights except the right to counsel if they are not competent to represent themselves at any stage in Ihe process. The State and attorneys for the Valdivia class action (Valdivia v. Schwarzenegger, (E.D. 2002) 206 F.Supp.2d 1068. entered into a stipulated agreement, which resulted in the Valdivia Injunction. In order for the Deputy Commissioner (DC) to ensure that parolees’ procedural due process rights have been met under Morrissey and the VRP it is important to understand those rights. The following is a list of Ihe parolee's rights;

Notice of Chartres

The prisoner or parolee shall receive written notice of the charges within 3 business days of the placement of the parole hold. The notice will include a short factual summary of the charged conduct and written notice of Ihe parolee’s rights regarding the revocation process and time frames. (Valdivia injunction, Pen. Code, § 3063.5, 16 CCR § 2643(b)).

Right to counsel

Ail parolees are entitled to attorney representation (VRP).

Representation will be limited to those either admitted to the State Bar of California (and are active members) or who appear under procedures authorized by the State Bar of California. Law students may appear and represent inmates as "certified law students" in accordance with the provisions of the State Bar of California. Parolee’s may waive their right to counsel unless it is determined that they are not competent to represent themselves at any stage in the proceedings (Valdivia Injunction ¶ 11 (b)(i)).

Probable Cause Hearing within 10 Business Days after the Parolee has been Served with the Notice of Charges.

A parolee has the right to have the probable cause hearing within 10 business days after the parolee has been served with the notice of

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Revocation Hearing within 35 Pava of Placement of Parola Hold

A parolee has the right to have the revocation hearing within 35 days from the data that the Parole Department places a PC §3056 parole hold (Valdivia Injunction .¶¶ 11(b)(iv) and 23).

Disclosure of evidence

Prisoner shall receive all documentary evidence against them (Pen. Code, § 3063.5; 15 CCR § 2643(b));

Right to be present

Die right to be present at the hearing, unless incarcerated in another jurisdiction (15 CCR § 2247. in re Shapiro (1975) 14 Cal.3d 711).

Note: The parolee can waive this right as a result of their conduct. If the parolee's behavior is disruptive to the process or poses a risk to the safety or security of the persons in the hearing or the facility the DC may have the parolee removed from the proceedings. A removal and the reasons for the removal must be documented. Removal occurs when the parolee's behavior is disruptive to the proceedings. The DC should warn the parolee about the behavior and instruct the parolee to discontinue the behavior and warn that continuation of the behavior will result in removal. If the parolee continues to be disruptive to the proceedings the DC will Instruct the security person to remove the parolee from the boardroom.

To present documentary evidence

The parolee shall have the right to present any relevant documents to the hearing panel. The documents written by the parolee or counsel should be brief, pertinent, and clearly written. They may cover any relevant matters such as mitigation circumstances, disputed facts or release planning. (15 CCR § 2249; Valdivia Injunction, ¶¶ 21-22; Morrissey v. Brewer. 408 U.S. 471, 489 (1972).

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To Present Witnesses (revocation hearing only)

The parolee Is entitled to request the presence of evidentiary and/or dispositional witnesses, if denied, the specific reasons for denial shall be documented and a copy of the document given to the parolee. (15 CCR § 2643(d), Valdivia Injunction ¶¶ 21-22; and Morrissey v. Brewer, 408 U.S. 471, 469 (1972)). The right to have witnesses only applies to the Revocation Hearing. Present at the Probable Cause Hearing is the parolee, attorney and DC.

a. Evidentiary witnesses - witnesses that will testify to some aspect of the charges in the fact finding phase of the hearing;

b. Dispositional - witnesses that will testify to some aspect of the parolees' adjustment on parole in the community.

To confront and cross-examine adverse witnesses (revocation hearing only)

The parolee has the right at a Revocation Hearing to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause to not allow confrontation (Morrissey v. Brewer (1972) 408 U.S. 471 Valdivia injunction ¶ 24; Comito, 177 F.3d at 1171). The DC can deny the confrontation of an adverse witness if it is shown that the witness is unavailable for good cause, or determined to be either fearful or confidential. See Resource Document * Witnesses for explanation of fearful and confidential witnesses.

To receive a written decision

The parolee is entitled to receive a written decision which includes the evidence relied on In reaching the decision (15 CCR §2255; Valdivia Injunction, Exh. A p. 5: Morrissey v. Brewer. 408 U.S. 471, 489 (1972))

To receive notice of the hearing

The pardee is entitled to receive notice of the date of the hearing at least 4 days before the hearing (15 CCR § 2643(e)).

To have an Impartial hearing panel

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The parolee is entitled to an impartial panel. A prisoner is entitled to a hearing by an impartía! panel (Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). A paroiea or counsel may request the disqualification of a hearing pane) member by making an objection to the hearing officer at the beginning of the hearing stating the reasons that the parolee believes the hearing officer cannot render a fair and impartial decision. The hearing panel member may also disqualify themselves. Possible reasons for disqualification are: a close personal relationship with prisoner or prisoner’s family, hearing panel member was Involved in a past incident with the prisoner which might prejudice the panel member against the prisoner or the hearing panel member Is actually prejudice against or biased in favor of the prisoner and can not make an objective decision (15 CCR § 2250).

To receive, upon request, a fane of the hearing

The parolee is entitled upon request to receive a copy of the record of the revocation hearing. (15 CCR § 2254: Valdivia Injunction ¶ 20)

To request a continuance or postponement

A parolee may request a continuance or postponement on any ground, including an insufficient time to prepare. A request for a continuance or postponement will be granted for good cause (15 CCR §2253)

To request an optional waiver

The parolee may sign an optional waiver if court charges are pending. The court charges must be criminal in nature and must be for the same conduct that resulted in one or more of the violation charges. The parolee must be informed of the time constraints for a hearing once an optional waiver has been activated.

To review nonconftdential document»

The parolee or attorney has the right to review nonconfidential documents in the file and enter a written response to any material in the file ((15 CCR § 2247. Valdivia Injunction ¶¶ 14-16).

a. A parolee is entitled to copies of all non-confidential documents regarding the violation charges (Morrissey v Brewer, 408 U.S. 471, 489 (1972), In re love, 11 Cal3d 179 (1974), and Penal Code Section 3063.5). Such reports, even if labeled "Confidential* or "DafttrirtaH'’ Kv/ fha Idu« onfnrpamanf ortanrHi ennnlvinn rvuvirf must be given to the parolee and/or attorney, except information, which may endanger the safely or security of a person or a prison, if disclosed, may be deleted from any report. The PA initiating the violation report shall review ail law enforcement reports and make appropriate deletions In the copies. If such information is deleted from reports, (he PA will prepare a typewritten memorandum stating the reason for the confidential classification. A copy of the unaltered report will be retained in the unit file. This copy will be available to the DC at the hearing, upon request. The DC at the hearing will determine whether to retain the document's "confidential" designation.

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Right to reasonable accommodation

It is part of the BPT’s mission to ensure compliance with the Americans with Disabilities Act of 1990 and fhe Rehabilitation Act of 1973 as well as other federal and state laws relating to ADA and due process. DCs shall be aware that the BPT is under the mandate of a Federal Court injunction (Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001),) and that specific policies and procedures have been developed to ensure compliance. As such DCs shall apply those policies as well as those outlined in the Armstrong v. Davis Board of Prison Terms Parole Proceedings Remedial Plan (ARP II) effective March 29, 2002. Accordingly, DCs shall apply relevant policy and procedure regarding notice, reasonable accommodation (Including to the right to receive the effect communication throughout the entire revocation process), and grievances.

To waive hearing

A parolee may waive the revocation hearing by signing an unconditional waiver. The unconditional waiver includes the waiver of a personal appearance. The signing of the unconditional waiver is not an admission of guilt (CCR § 2641).

To waive counsel

A parolee has the right to waive counsel. When the parolee chooses to waive counsel 1he Deputy Commissioner will make the final determination as to whether the parolee is competent to effectively represent him or herself at a PCH or Revocation Hearing.

Expedited Probable Cause Hearing

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Under the VRP if counsel after the RTCA can make a 'sufficient offer of proof that there Is a complete defense to all parole violation charges that are the basis of the parole hold the parolee is entitled to an 'expedited probable cause hearing* as soon as it can be put on calendar (Valdivia Injunction, ¶ 11(b)(1) and Exh. A p. 4). The offer of proof must be reviewed by an available DC or ACDC to determine sufficiency. The offer of proof may be a declaration, document or any other form of evidence that is convincing.

RESOURCE DOCUMENT # 3

WITNESSES: CATEGORIES, SELECTION, APPROVAL AND TESTIMONY Introduction

Under the Valdivia Injunction California parolee’s have a right to call and confront adverse witnesses at a Parole Revocation Hearing. When a pending revocation will proceed to a full revocation hearing, the Deputy Commissioner at a probable cause hearing will review witnesses requested by the State and by the parolee to finalize the witness list. The approval of witnesses is within the sole discretion of the Deputy Commissioner. New regulation presently title 15 section 2668.

Categories

• Evidentiary witnesses (CCR Title 15 § 2668(b) (1)) are witnesses that can provide information that-is probative to the charge(s). Within the category of evidentiary witnesses are two subcategories: adverse and supportive. Adverse witnesses present evidence that is adverse to the parolee’s position and often supportive of the P&CSD’s position. Supportive witnesses support the parolee's position and are often adverse to the P&CSD’s position. The Morrissey case referred to adverse witnesses and defined them as follows: a person who has given information that supports the parole violation charges against the parolee and upon which the paroling agency Is relying to revoke parole, A supportive evidentiary witness on the other hand also has information that is probative to the charges, but supports the parolee's claims. Both sub-categories may be relevant to the ultimate finding of fact.

• Disposition witnesses (CCR Title 15 § 2668(b) (2)) are witnesses that speak to how the parolee has been adjusting to parole. Disposition witnesses may offer testimony or documentary evidence of the parolee’s stable residence, participation in programs or steady employment as well as personal character traits and observed changes in the parolee since release,

• Fearful witnesses (CCR Title 15 § 2668 (3) (e)) Evidentiary witnesses who refuse to attend the hearing either because they would be subject to risk of harm if their identity were known or if identity is already know fear for the safety if they attend the hearing. These witnesses shall be interviewed by staff prior to the hearing and their information documented in writing or on tape. The reasons for their fear shall also be documented. The hearing panel shall determine whether there Is good cause to excuse a witness’ attendance and shall document the decision, including the reasons. The determination of good cause to excuse a witnesses testimony must the tests set forth in the Comito case (see Assessing Evidence Resource Document), which balances the parolee’s right to confrontation against the need for the evidence to the disposition of the case and the trustworthiness of the information. On some occasions the witness does attend the hearing. In these cases the DC will determine whether there is good cause to designate the witness as fearful. If the DC determines good cause exists, the DC may allow the witness to give testimony outside the presence of the parolee.

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■ In order to take the fearful witnesses testimony the parolee may be removed from the hearing room while the fearful witness testifies. The parolee’s attorney will have the opportunity to ask the witness questions on the parolee's behalf. The reasons for declaring a witness fearful must be documented

• Confidential witnesses are witnesses that have relevant information regarding the chargefs), but are unknown to the parolee and are fearful of retaliation from the parolee If they testify. Under Morrissey the court ruled that the parolee's right to confrontation and cross-examination is óut-weighed when "the hearing officer specifically finds good cause for not allowing confrontation." The Court states that due process requires confrontation and cross-examination except On a finding of good cause to not allow confrontation. The Court stated, "[hjowever, If the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed,, he need not be subjected to confrontation and cross-examination." (Morrissey, 408 U.S. at 487.) The use of confidential witnesses is subject to the balancing test used in the U.S. v. Comito ((9th Cir. 1999) 177 F. 3d 1166) case regarding unavailability of witnesses. The DC must carefully weioht the State’s need for the information against the parolee's right to confront and cross-examine adverse witnesses.

• Parolee and parolee’s attorney must be informed that confidential Information will be used prior to the use of the information. Counsel may object to the use of the information. If the information were designated confidential by die Department the challenge of the designation would go through the Department.

• The parolee may be removed from the hearing room while the confidential witness testifies. The parolee’s attorney will have the opportunity to ask the witness questions on the parolee's behaif. The reasons far declaring a witness confidential must be documented.

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• The possible risk to the witness can be established by a direct or implied threat, or other circumstances that would lead a reasonable person to believe that the witness could suffer harm as a result of testifying.

Confidential testimony shall be recorded on a separate system (currently an audiotape) marked confidential.

Selection and Approval of Witnesses

The following is what should be considered when selecting and approving witnesses:

• Thera shall be no limit on the number of evidentiary witnesses,

• There Is no specific number of allowable disposition witnesses, but cumulative testimony is not necessary

• In determining who to call as a witness the DC must review the proposed information that will the witness will provide and determine if the testimony is relevant and material to the charge(s>

• Testimony should not be cumulative or repetitive to other testimony

Note: great care must be given in denying a requested evidentiary witness on the basis of cumulative testimony. The persons may have observed the same incident, but may have different perceptions of the incident (Title 15 § 2668 (b) (2)).

The DC will have a list of requested witnesses from P&CSD and from the parolee’s attorney. After reviewing the documents the DC will determine which of P&CSD's requested witnesses will be called and which of the parolee’s requested witnesses will be called. The DC may add to the list if both parties have omitted a witness that the DC considers necessary. The parolee's counsel will be notified of the approved witness list and will be responsible for notification of witnesses designated as the parolee’s witnesses.

Taking witness testimony

The DC may have witnesses, both evidentiary and dispositional, testify in narrative form and/or by question and answer. The DC has the responsibility to keep the witnesses focused on the issues that are probative to the charges. The DC also has the responsibility to make sure the parolee or his/her attorney's questions stay focused on the issues that are pertinent to the charges. Disposition witness may need more guldanoe to stay focused on the purpose of their testimony and the DC may need to use a question and answer technique if the witness does not stay on point. The focus of the disposition witnesses testimony should on the parolee's adjustment following the most recent release from custody, but leniency must be shown when the witness is explaining positive changes In the parolee's present parole adjustment from previous parole period adjustments.

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EXHIBIT D

Glnny Morrison

From: Vickie Whitney [Viclde.Whitney©doJ.ca.gov]

Sent: Monday, January 07,2008 3:03 PM

To: dylan.sullivan@cdcr.ca.gov; katherine.nelson@cdcr.ca.gov; Ginny Morrison; Jessica Devencenzi

Cc: 'Ernest Galvan'; ‘Loren G. Stewart1; 'Chase Riveland’

Subject: Re; Comito document request

In response to the request of Deputy Special Master G'nny Morrison, made under paragraph IIE cF the Joint Statement Regarding Scheduling and Procedures for Briefing of Comito Dispute to the Office of the Spedal Master, attached please find the portion of the agenda for the current Deputy Commissioner training which concerns Comito, confrontation rights, and/or hearsay. This portion was included in the full agenda served on Plaintiffs on December 7, 2007. Please note that Comito training occurred on December 21st from 8:30 to noon (agenda says 12:00 am, should be pm). Loren Stewart was present for Plaintiffs and Jessica Devencenzi was present for Defendants. Please also be advised that as part of the training, by agreement between the parties . when presented with an impromptu request at the training (obviously not reflected by the agenda), both Mr. Stewart and Ms. Devencenzi provided non-biased, factual examples from the various cases to assist in the training. We are informed that the participante found the presentations to be extremely beneficial.

In regards to the indication that this document will be considered part of the record underlying the Report and Recommendations to the Court, Defendants must respectfully object for the record on the basis of relevancy.

As Defendants have noted in objections in the briefing and at the hearing, Defendants believe that matters concerning training are not relevant to a determination of die extent of obligation Imposed under the Permanent Injunction's provisions concerning United States v. Comito- a matter which ts based wholly upon the cases that define the legal obligation. While Defendants are providing the document requested, It is being provided subject to Defendants’ objection.

Please let me know if there are any further requests of the Mastership.

Regards,

Vickie

>» Glnny Morrison <gmorrlson<§>collaboration-specialiste.com> 1/4/2008 8:08 AM »>

Pursuant to the Joint Statement Regarding Scheduling and Procedures for Briefing of Comito Dispute to die Office of the Special Master paragraph I1.E, which provides, in relevant part, that “the Special Master reserves the right to make addidonal inquiries.we request that Defendants provide:

■ a copy of the agenda for the current Deputy Commissioner academy for the day(s) on which training is offered concerning Comito, confrontation rights, and/or hearsay

Please provide this to the Office of the Special Master, with a copy to Plaindffs’ counsel, by electronic mail by close of business on J anuary 9,2008. This document will be considered a part of the record underlying the Report and Recommendations concerning this matter.

Ginny Morrison

Deputy Special Master, Valdivia 415-456-5038 / 415-449-6377 (FAR) 
      
      . The plaintiffs also request the court modify the Report to state that the denial of plaintiffs' motions are made without prejudice. It appears that this is apparent by the language employed by the Special Master and that such modification is unnecessary.
     
      
      . To the extent that any portions of Ex. G-Sealed have not been authenticated, the Special Master takes judicial notice of the transcript under Federal Rule of Evidence 201.
     
      
      . To the extent that any portions of Ex. G-Sealed have not been authenticated, the Special Master takes judicial notice of the transcript under Federal Rule of Evidence 201.
     