Appeal from Reno District Court; STEVEN R. BECKER, judge.
1. The protections under both the United States Constitution and the Kansas Constitution Bill of Rights regarding confrontation of witnesses are the same. The right of confrontation under the Sixth Amendment to the United States Constitution and the right to meet the witnesses "face to face" under Section 10 of the Kansas Constitution Bill of Rights are satisfied when the defendant has had an opportunity to cross-examine the witnesses against him or her.
2. Pursuant to Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the Confrontation Clause of the United States Constitution bars admission of testimonial statements of a witness who did not appear at trial unless he or she was unavailable to testify and the defendant had a prior opportunity for cross-examination.
3. The rights of an offender in a probation revocation hearing are not the same as those extended by the United States Constitution upon the trial of the original offense. Rather, probation is an act of grace and a defendant is not entitled to the full panoply of rights guaranteed by the Constitution.
4. Because probation revocation hearings are not equivalent to criminal prosecutions, they are allowed a more flexible process and consideration of material that might not be admissible in an adversary criminal trial. Therefore, the right to confront witnesses as provided in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), is not extended to defendants in probation revocation proceedings.
5. Defendants in probation revocation proceedings are entitled to minimal due process rights, including the right to confront and cross-examine adverse witnesses, unless the hearing officerspecifically finds good cause for not allowing confrontation.
6. To dispense with confrontation in a probation revocation proceeding, the court must evaluate (1) the explanation offered by the State as to why confrontation is undesirable or impractical, and (2) the reliability of the evidence offered by the State in lieu of live testimony.
The opinion of the court was delivered by: Caplinger, J.
Reversed and remanded with directions.
Before MCANANY, P.J., GREEN and CAPLINGER, JJ.
Johnny Palmer, Jr., appeals the district court's revocation of his probation. Specifically, he challenges the court's admission of an affidavit as sole evidence of his violations without testimony of the declarant or evidence of the declarant's unavailability, contrary to Crawford v. Washington, 541 U.S. 36, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004).
While we decline to extend the right to confront witnesses as provided in Crawford to defendants in probation revocation proceedings, we nevertheless find the affidavit was improperly admitted without evidence of the declarant's unavailability. Accordingly, we reverse the probation revocation and remand to the district court with directions to engage in the appropriate balancing test before admitting the affidavit.
Factual and procedural background
In December 2003, Johnny Palmer, Jr. pled guilty to one count of possession of cocaine and one count of possession of drug paraphernalia in Reno County. The district court sentenced Palmer to 36 months' probation with an underlying prison term of 68 months. In August 2004, the State filed a motion to revoke Palmer's probation for cocaine use and ...