Massachusetts Appeals Court Reverses Juvenile’s Probation Violation Finding, Citing Unreliable Hearsay

The Massachusetts Appeals Court today ruled that a juvenile court judge had improperly found a juvenile in violation of his probation, where the only evidence presented was in the form of unreliable hearsay offered by his probation officer.  The name of the case is Commonwealth v. Grant G. 

In 2016, the juvenile pled delinquent (the juvenile version of guilty) to multiple charges, including armed robbery, kidnapping, credit card fraud, and larceny of a credit card in juvenile court.  The judge imposed a sentence that required the juvenile to be on probation until his 18th birthday.  Conditions of his probation included obeying a curfew imposed by the Department of Youth Services (DYS) and complying with other orders dictated by the Department of Children and Families (DCF).  Less than a year later, the probation department alleged the juvenile had violated his probation by being “AWOL” from a residential placement program he had been ordered to attend.  At a subsequent probation violation hearing, the probation department called the juvenile’s caseworker as a witness.  The caseworker testified the program director told him the juvenile “had broken all the rules and. . . wasn’t cooperating with DCF.”  Further, the juvenile had allegedly been absent from the program without permission, including an instance where he was given a day pass to visit a family member, but instead of returning to the program at the end of the day he was missing for several days.  Finally, the juvenile allegedly was not attending school regularly, was having unauthorized contact with a family member, and was struggling with a substance abuse problem at the program.  When the juvenile’s attorney cross-examined the caseworker at the hearing, the caseworker acknowledged: he had never read the program rules or regulations; he did not know the specific dates the juvenile was missing from the program; and was unaware that the program sometimes gave the juvenile permission for overnight visits with family members.  The caseworker also admitted he was not assigned to the juvenile’s case at the time of the alleged violations.  Nevertheless, the juvenile court judge found the juvenile in violation of his probation and ordered him to be taken into the custody of DYS until his 18th birthday.

On appeal, the juvenile argued the testimony given by the caseworker lacked the indicia of reliability required to support a finding that he had violated his probation.  The Appeals Court agreed and reversed.  In Massachusetts, hearsay is admissible in probation surrender hearings and, if it has a substantial indicia of reliability, can be the basis for a finding of violation.  In evaluating the reliability of hearsay, a judge considers, among other factors: if the evidence is based on the witness’ personal knowledge; the level of factual detail contained in the testimony; if the statements are internally consistent; whether there is corroborative evidence; and whether the witness was disinterested in the outcome of the case.  In this case, the Court ruled the caseworker’s testimony lacked the requisite factual detail.  It was problematic that the caseworker had not read the program regulations and was not aware the program had previously allowed the juvenile to leave overnight.  Further, the caseworker’s testimony was based on just a “few conversations” with the program director.  Finally, there was no corroboration from other sources to support the caseworker’s testimony.  Accordingly, the juvenile should not have been found in violation of his probation.

Probation violation hearings are incredibly dangerous to criminal defendants in Massachusetts.  The Commonwealth has a distinct advantage because of the lowered burden of proof and the relaxed rules of evidence, and once a defendant is found in violation of his probation, the judge has the authority to sentence him up to the maximum penalty allowed by law.  Although the juvenile here ultimately prevailed, this case illustrates the inherent risks in probation violation hearings in Massachusetts.