Decided: May 21, 2014
The Fourth Circuit held that a Virginia district court committed legal error when it denied the defendant the opportunity to cross-examine the forensic examiner whose report was presented at the defendant’s revocation hearing.
The defendant served ten years in prison, and began his first period of supervised release in 2010. After several violations, the defendant was sentenced to a second term in prison. The defendant, again, had a series of violations, which primarily involved the possession of marijuana. At his revocation hearing, the defendant contested one of the violations, which was the crux of his appeal. Following a traffic stop, the defendant was arrested for possession of marijuana. The recovered marijuana was then sent to a forensic lab to test the weight and nature of the substance. During the defendant’s hearing, this forensic report was introduced by the arresting officer, not the forensic examiner. Based on this report, the district court revoked the defendant’s supervised release and sentenced him to forty-two months in prison.
The defendant claimed the introduction of the forensic report, in the absence of an opportunity to cross-examine the forensic examiner, violated Federal Rule of Criminal Procedure 32.1(b)(2)(C). This rule entitles defendants to “an opportunity . . . to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Although revocation hearings are less formal than trials, due process rights still apply to these hearings. Relying on its holding in United States v. Doswell, the Court noted that the application of Rule 32.1(b)(2)(C) requires “the district court to balance the releasee’s interest in confronting an adverse witness against any proffered good cause for denying such confrontation.” Thus, if the government is unable to show good cause for denying a defendant the right to confront his witnesses, the hearsay evidence is inadmissible at revocation hearings.
In the defendant’s case, the Government did not proffer an explanation for the examiner’s absence. Still, the district court concluded that the report was reliable and that the other evidence presented corroborated the report. Conversely, the Fourth Circuit concluded that this was legal error; neither reliability nor the existence of corroborating evidence obviates the requirement to show good cause. Both the majority and concurring opinion emphasized their frustrations with the “government’s barefaced failure to abide by [their] command in Doswell.”
Additionally, on appeal, the Government argued that notwithstanding the legal error, the error was harmless because there was adequate evidence for the district court’s sentence. The Court ultimately concluded that the district court’s error was an evidentiary mistake, not a constitutional error. Accordingly, the Court concluded that “the proper harmlessness test must ensure that the error had no ‘substantial and injurious effect or influence’ on the outcome.” After noting that reversal is reserved for serious errors that affect substantial rights or that directly affect the outcome of the case, the Court determined that the district court’s error constituted both, and vacated and remanded the district court’s decision.
In her dissent, Judge Keenan opined that the majority’s harmless error analysis was inappropriate. Instead, Judge Keenan concluded that the proper standard was harmless beyond a reasonable doubt. Even applying the higher standard, Judge Keenan asserted that the district court’s error was harmless in light of the weight of evidence against the defendant.