Terrance Robert Henderson, s/k/a Terrence Henderson v. Commonwealth of Virginia
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COURT OF APPEALS OF VIRGINIA Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Haley, Petty, Beales, Alston and Huff Argued at Richmond, Virginia TERRANCE ROBERT HENDERSON, S/K/A TERRENCE HENDERSON v. OPINION BY JUDGE JAMES W. HALEY, JR. FEBRUARY 28, 2012 Record No. 0688-10-4 COMMONWEALTH OF VIRGINIA UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N.A. Kendrick, Judge Elizabeth Lauwaert Tuomey (Clardy and Tuomey, PLLC, on brief), for appellant. Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee. I. INTRODUCTION Terrance Robert Henderson ( Henderson ) appealed the result of his probation revocation hearing and assigned as error that the trial court violated [his] right of confrontation by admitting . . . hearsay testimony. In an opinion published on June 21, 2011, a divided panel reversed the trial court. Henderson v. Commonwealth, 58 Va. App. 363, 710 S.E.2d 482 (2011). By order of July 26, 2011, this Court granted a petition for rehearing en banc and stayed the mandate of the panel decision pending the decision of the Court en banc. Henderson v. Commonwealth, 58 Va. App. 616, 712 S.E.2d 52 (2011). We conclude the trial court properly admitted the challenged hearsay evidence in conformity with the limited confrontation right in the Fourteenth Amendment. Accordingly, we vacate the panel opinion and affirm the trial court. II. OVERVIEW In Morrissey v. Brewer, 408 U.S. 471, 480 (1972), the United States Supreme Court held that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Nonetheless, that Court continued, a defendant in a parole revocation hearing is entitled to those due process rights contained in the Fourteenth Amendment to the United States Constitution, including the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). 1 Id. at 489. The Supreme Court applied the due process guarantees of Morrissey to probation revocation in Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). Like parole, probation arises after the end of the criminal prosecution, including imposition of sentence. Morrissey, 408 U.S. at 480. In Scarpelli, the Supreme Court pointedly stressed that: While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. 411 U.S. at 782 n. 5. Following these decisions, this Court has developed its own jurisprudence, specifically addressing the hearsay issue. In Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991), we wrote: We first address Davis contention that White s testimony was hearsay and improperly admitted at the probation revocation hearing. Both the United States Supreme Court and this Court have previously indicated probation revocation hearings are not a 1 At oral argument, Henderson s counsel agreed that Morrissey remains good law. -2- stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972); Atkins v. Commonwealth, 2 Va. App. 329, 331-32, 343 S.E.2d 385, 387 (1986). Specifically, the United States Supreme Court has stated that in revocation hearings formal procedures and rules of evidence are not employed, Scarpelli, 411 U.S. at 789, and that the process of revocation hearings should be flexible enough to consider evidence . . . that would not be admissible in an adversary criminal trial. Morrissey, 408 U.S. at 489. Thus, hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court s discretion. (Emphasis added). After quoting Davis, we held in Hess v. Commonwealth, 17 Va. App. 738, 742, 441 S.E.2d 29, 32 (1994), that: Consequently, a probation officer can, and frequently does, give hearsay evidence that includes a summary of a crime victim s testimony from another trial or even an extra-judicial account concerning a probationer s conduct. (Emphasis added). See also Dickens v. Commonwealth, 52 Va. App. 412, 663 S.E.2d 548 (2008). 2 Succinctly stated, the due process right of confrontation contained in the Fourteenth Amendment is applicable in probation revocation hearings, but the scope of that right is not one congruent with that afforded by the Sixth Amendment in criminal trials. 3 2 To review decisions from other jurisdictions, see Annotation, Admissibility of Hearsay Evidence in Probation Revocation Hearings, 11 A.L.R.4th 999 (1982 & Supp. 2011). 3 We note that Henderson did not in the trial court, before the panel, or before the Court en banc, maintain any violation of his Sixth Amendment rights, or assert such a right was applicable to revocation hearings. At oral argument, Henderson s counsel agreed the Sixth Amendment does not apply. -3- III. STANDARD OF REVIEW We thus address whether good cause existed for the admissibility of the challenged hearsay and whether that admission violated Henderson s Fourteenth Amendment due process right of confrontation. 4 Whether Henderson s due process right of confrontation was violated is a question of law and is reviewed de novo. Dickens, 52 Va. App. at 417, 663 S.E.2d at 550 (citing Michels v. Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006)). That said, the core issue before us is whether there was good cause, consistent with Morrissey, for admission of the challenged testimony. The question of good cause, and thus the propriety of that admission, is reviewed upon an abuse of discretion standard. In Allen v. Commonwealth, 58 Va. App. 618, 622-23, 712 S.E.2d 748, 750 (2011), we wrote: The underlying determinations of good cause . . . involve a case-by-case exercise of the trial court s discretion. See Dickerson v. Commonwealth, 29 Va. App. 252, 254, 511 S.E.2d 434, 435-36 (1999); Adkins v. Commonwealth, 24 Va. App. 159, 162-63, 480 S.E.2d 777, 779 (1997). On appeal, we do not review these decisions de novo but rather under the deferential abuse-ofdiscretion standard. Only when reasonable jurists could not differ can we say an abuse of discretion has occurred. Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting in parenthetical Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)). That standard of review is applicable to decisions of trial courts as to the admissibility of evidence. Avent v. Commonwealth, 279 Va. 175, 197, 688 S.E.2d 244, 256 (2010); Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997); Burton v. Commonwealth, 58 4 We note that Henderson has not preserved for appeal the issue of whether a trial court is required to enunciate on the record a finding of good cause, or the reasoning leading to such a finding. See Morrissey, 408 U.S. at 489 (holding a defendant is entitled to confrontation unless the hearing officer specifically finds good cause ). Accordingly, we do not address such an issue. -4- Va. App. 274, 280, 708 S.E.2d 444, 447 (2011); Lampkin v. Commonwealth, 57 Va. App. 726, 728, 706 S.E.2d 51, 52 (2011). And as we wrote in Joyce v. Commonwealth, 56 Va. App. 646, 663, 696 S.E.2d 237, 245 (2010): Whether an adequate foundation has been laid for a hearsay exception involves an exercise of discretion by the trial court. See, e.g., Abney v. Commonwealth, 51 Va. App. 337, 347, 657 S.E.2d 796, 801 (2008). IV. TESTS FOR DETERMINING HEARSAY ADMISSIBILITY Courts have developed two tests for evaluating whether good cause exists for the admission of hearsay evidence in probation revocation hearings the reliability test and the balancing test. Under the reliability test, a court allows the admission of hearsay evidence without a showing of cause for the declarant s absence if the evidence is sufficiently reliable. Curtis v. Chester, 626 F.3d 540, 545 (10th Cir. 2010). Reliable evidence under this test has also been described as evidence having substantial guarantees of trustworthiness. Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir. 1984). The [Supreme] Court established the good cause showing in Morrissey to limit the substantive use of unreliable evidence at revocation hearings. However, if the proffered evidence itself bears substantial guarantees of trustworthiness, then the need to show good cause vanishes. Id. Another court explained that substantial trustworthiness in hearsay evidence represents good cause for not producing live testimony. Reyes v. State, 868 N.E.2d 438, 441-42 (Ind. 2007). In other words, if reliable hearsay is presented, the good cause requirement is satisfied. Commonwealth v. Negron, 808 N.E.2d 294, 300 (Mass. 2004). Courts have considered a number of factors in determining whether hearsay evidence is reliable. Courts are often concerned with whether other evidence corroborates the hearsay. United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); United States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004); Egerstaffer, 726 F.2d at 1235. Another indication of reliability is that the -5- evidence is quite detailed, providing a fairly full account of the circumstances. Crawford v. Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003); see also United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000); Egerstaffer, 726 F.2d at 1235. Also relevant are admissions from the defendant corroborating the challenged hearsay, the failure of the defendant to present evidence, and internal corroboration within the hearsay. Crawford, 323 F.3d at 130. Statements possess less reliability when they come from an adversarial relationship between the person reporting the statement and the person who made it, United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986), when they represent self-serving statements, Farrish v. Miss. State Parole Bd., 836 F.2d 969, 978 (5th Cir. 1988), or when they contain multiple levels of hearsay, United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009). Under the balancing test, a court weighs a defendant s interest in confronting a particular witness against the government s good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement. United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995); see also United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006). Reliability constitutes a principal factor in this analysis. Lloyd, 566 F.3d at 345. Whether a particular reason is sufficient cause to outweigh the right to confrontation will depend on the strength of the reason in relation to the significance of the releasee s right. United States v. Comito, 177 F.3d 1166, 1172 (9th Cir. 1999). Although occasionally a defendant s interest in confrontation may be overwhelmed by the hearsay s reliability such that the Government need not show cause for a declarant s absence, typically a defendant may have a legitimate interest in confrontation and cross-examination even when a declarant s out-of-court statement bears some indicia of reliability, and [trial] courts should normally address both factors. Lloyd, 566 F.3d at 345. Courts have recognized that a declarant s refusal to testify or threats made against a declarant may be good cause for his absence and -6- justify the admission of hearsay. Id. at 346. Where it is clear that a witness is unavailable, a court applying the balancing test should simply determine whether the evidence is reliable. United States v. Farmer, 567 F.3d 343, 347 (8th Cir. 2009). While it is arguable that Virginia has adopted the reliability test, see, e.g., Turner v. Commonwealth, 278 Va. 739, 742, 685 S.E.2d 665, 667 (2009); Dickens, 52 Va. App. at 423, 663 S.E.2d at 553, both cases dealt with documentary evidence and not, as here, with testimony. We decline to determine whether either test, or both tests, or other methods of analysis are mandatory in evaluating good cause for the admission of hearsay in probation revocation hearings. With that caveat, and because the parties here have only addressed the reliability test and the balancing test for determining good cause, the scope of our opinion will be likewise limited to the application of those tests to the instant facts. We hold that under either test, the challenged testimony was admissible. V. BACKGROUND In 2001, Henderson was convicted of a robbery that occurred in 2000 in violation of Code § 18.2-58. In addition to an active period of incarceration, he received a substantial suspended sentence, along with supervised probation upon release. Henderson was released from incarceration in September 2009 and placed on supervised probation. On February 26, 2010, Henderson appeared in court on allegations of probation violation. The Commonwealth called only one witness, Detective Rosa Ortiz of the Arlington County Police Department, who testified regarding two incidents concerning Henderson. Over Henderson s objection, much of the evidence Ortiz offered involved hearsay. The first incident concerned an attempted robbery occurring on October 2, 2009. Ortiz spoke with the victim and his daughter on October 6. Other officers had already conducted a preliminary investigation. -7- The victim reported he received a phone call from an unknown number. The caller pretended to be from the sheriff s office and asked him to go to the courthouse to sign legal documents regarding a family member. When the victim delayed in leaving, he received a second call. He eventually left and was approached by a man who requested a cigarette. As the man passed by, he attempted to steal a bag held by the victim. The victim resisted and managed to thwart the robbery. The victim returned home and reported the incident to the police. When his daughter returned home, she attempted to save the phone number in her own phone; however, her phone identified the number as belonging to Henderson. The daughter contacted Henderson, who agreed to meet with the victim and his daughter. Henderson told them he lends his phone to a lot of people and he [did not] remember who he loaned it to that day. Ortiz contacted Henderson, who told her basically the same thing. The victim told Ortiz he really didn t want to file charges because people knew his daughter, and they all were in the neighborhood, they live in the same neighborhood, they knew where he lived. Henderson was not charged in connection with this incident. On October 8, Ortiz received a phone call at night at my house to come in to investigate a home invasion robbery. When she arrived at the police station, she interviewed the victim, who reported three individuals participated in a robbery at his house. The trio knocked on the door, but the victim declined to answer when he looked through a window and learned their identities. Nonetheless, they entered the home through an unlocked front door. The first person to enter had a gun in his waistband. Henderson was the second person and was followed by another man. The group stole property from the residence. The robbery occurred around 11:00 p.m. The victim identified Henderson by name and picked out his photo from a lineup. -8- The victim had previously met Henderson at a probation office. The victim had several prior larceny convictions and had agreed to plead guilty to grand larceny. Henderson spoke with Ortiz after being arrested for this crime. Regarding the prior attempted robbery incident, Henderson stated during this interview that his phone was stolen and miraculously it appeared on his porch two days later. He told her that the people in the neighborhood simply didn t like him, and that s why his name came up on these two different cases. When Ortiz inquired why people would not like him, Henderson responded that they just don t. Henderson mentioned the second victim as the victim of a home invasion, and being one of the people that don t like him just because he had an issue with his brother. Henderson related that on the day of the incident he was on his porch talking to others between 8:00 p.m. and midnight. During the home invasion investigation, the police obtained a search warrant for Henderson s house. Henderson s stepfather told the police that Henderson was not there the day of the incident . . . that they had been having a lot of problems with him listening . . . to what he needs to do, and that he stays out all night. Henderson admitted to Ortiz that he knew the other two perpetrators of the home invasion robbery and that he had been in a car with them. When police searched the car, they discovered property of the victim. Ortiz later monitored phone calls of Henderson and the other two perpetrators of the home invasion made from the jail. The gunman told Henderson s brother to take [the victim s] stuff out of your house. The gunman made a lot of threats towards the victim. The gunman eventually arranged to return the victim s property by way of two other people. Henderson stated the home invasion victim pulled a knife on Martin and should go to jail. At another -9- point, the gunman stated: [T]hey got me and they got Terrence. And he asked how did they get Martin. The home invasion victim ultimately refused to testify about the incident. Ortiz testified: I actually personally met with him and his mother, and they were extremely scared of retaliation. My victim s mother . . . the day before the court she heard gunshots around the house, and that really scared her. The charge was nolle prosequied. Henderson presented the testimony of his mother. She stated that when she arrived home at 10:20 p.m. the night of the home invasion robbery, Henderson was in his room and did not leave the house that night. The trial court found Henderson in violation of his probation and sentenced him to serve the entirety of the suspended sentence from the 2001 robbery conviction. Henderson appealed to this Court, arguing the trial court violated his confrontation rights under the Due Process Clause of the Fourteenth Amendment by admitting hearsay. A panel majority reversed the trial court, and we granted the Commonwealth s petition for rehearing en banc. VI. APPLICATION Initially, we note the limited scope of the hearsay Henderson challenges. Henderson challenges the admissibility of Ortiz s testimony regarding the statements of the victim of the attempted robbery and his daughter, as well as the statements of the victim of the home invasion robbery. He does not dispute the admissibility of any other hearsay relayed by Ortiz. A. Reliability Test Before we analyze the facts of this case under the reliability standard, we find it useful to consider how other courts have applied the reliability standard under similar facts. The Court shall then discuss how the hearsay concerning each incident possesses substantial indicia of reliability. - 10 - In Crawford, 323 F.3d at 124, the court affirmed a parole revocation based solely on a police investigative report. A woman s complaint led to Crawford s arrest for aggravated assault. Id. At a parole revocation hearing, a single police report of the incident (also relating drug use by Crawford) was admitted and parole was revoked based on it. Id. at 124-25. On appeal, Crawford raised similar arguments as in this case, challenging the exclusive reliance on the police investigative report . . . inasmuch as it is unsworn, prepared months after relevant events, and apparently consisted not of the author s personal observations or conversations with the complainant but instead was a summary of an affidavit prepared by another police officer. Id. at 127. Crawford also noted that the assault charge was never prosecuted and his arrest record was expunged. Id. at 127-28. In spite of the minimal amount of evidence and the fact that Crawford was never prosecuted, the court found the police report sufficiently reliable to revoke parole. Enunciating the reliability standard, the court stated that hearsay evidence could be relied upon where it possessed sufficient indicia of reliability under the circumstances at hand to protect the prisoner s due process rights. Id. at 129. First, the court noted the report was quite detailed, an indicia of reliability. Id. at 130. Second, the court found important that Crawford did not dispute a large portion of the relevant facts. Id. Third, the court stated the report contained internal corroboration because it included information from sources other than the complainant. Id. A responding officer observed evidence inconsistent with Crawford s story, and Crawford s far-fetched explanation gave reasonable cause for the Board to doubt his denial of culpability. Id. Fourth, Crawford failed to present any evidence contesting his guilt. Id. Finally, claimed multiple levels of hearsay were not significant under the facts of the case. Id. at 130-31. - 11 - Another case demonstrating application of the reliability standard is United States v. Kelley, 446 F.3d 688 (7th Cir. 2006). There an officer responded to a report about a person with a gun. Id. at 689. The victims told the officer Kelley had punched them and displayed a rifle he retrieved from the trunk of his car. Id. at 690. The officer observed that one of the victims had a broken tooth. Id. Later, the officer searched Kelley s vehicle and discovered a rifle. Id. Although the officer lacked personal knowledge of the incident related by the victims, he testified about their account at a revocation hearing and the court found Kelley in violation of his supervised release. Id. On appeal, Kelley argued the trial court erred in admitting the victims hearsay statements. Id. at 692. Applying the reliability standard, the court affirmed, holding the victims hearsay bore substantial indicia of reliability since [t]he physical evidence and the officer s personal observations and investigation corroborated the [victims ] accusations. Id. Attempted Robbery Incident The first way the evidence concerning this incident possesses reliability is that it contains a detailed account given to Detective Ortiz. Lloyd, 566 F.3d at 345; Crawford, 323 F.3d at 130; Egerstaffer, 726 F.2d at 1235. Ortiz spoke to both the victim and his daughter. The victim related how he received a phone call from an unfamiliar number. The caller pretended to be from the sheriff s office and requested the victim to go to the office to sign documents about a family member. When the victim did not immediately exit, the caller phoned him again. Upon the victim leaving, a man approached the victim and asked for a cigarette. The man then attempted to take a bag from the victim, but was unsuccessful as the victim resisted. The victim reported the incident to the police. When his daughter requested to see the telephone number of the person who had called, she realized it was the phone number for Henderson. The victim and his daughter spoke with Henderson, who told them he lends his phone to a lot of people and he did not remember who he loaned it to that day. - 12 - Second, Henderson s story corroborated what the victim and his daughter reported. Crawford, 323 F.3d at 130; United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982). Detective Ortiz spoke with Henderson about this incident, and Henderson related basically the same thing as he had told the victim and his daughter. During another interview, Henderson stated that his phone was stolen and miraculously it appeared on his porch two days later. While these statements do not corroborate the remainder of the story of the victim and his daughter, [n]ot every detail . . . need be corroborated to establish the reliability. Cf. Farmer, 567 F.3d at 348. Third, Henderson s statements gave ample cause to doubt his credibility and believe his culpability. Crawford, 323 F.3d at 130; see also Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004) ( A false or evasive account is a circumstance, similar to flight from a crime scene, that a fact-finder may properly consider as evidence of guilty knowledge. ). Henderson recounted different stories regarding his involvement. He told the victim and Ortiz he had loaned his phone on the day in question, but did not remember who borrowed it. At another time, Henderson told Ortiz someone had stolen his phone, but it incredibly appeared on his porch two days later. The inconsistencies in Henderson s accounts and especially his story about his magically disappearing/reappearing phone provided reasonable cause . . . to doubt his denial of culpability. Crawford, 323 F.3d at 130. Fourth, Henderson failed to present any evidence to contradict the Commonwealth s evidence at this revocation hearing. Id. (finding important that despite the obvious incentive to present supporting evidence, [the defendant] did not call any witness or present evidence other than his own testimony to support his version of events ); United States v. Waters, 158 F.3d 933, 941 (6th Cir. 1998) (finding relevant that while the defendant argued his inability to cross-examine a hearsay declarant prevented the defendant from establishing his brother - 13 - participated in illegal conduct, the defendant presented no evidence suggesting that his brother rather than he initiated contact ); see also United States v. Minnitt, 617 F.3d 327, 334 (5th Cir. 2010) (noting in finding reliability that the defendant failed to offer any evidence ). Henderson knew the identities of the victim and his daughter. Crawford, 323 F.3d at 130. He knew of the allegations since Ortiz contacted him. Yet he failed to present any contrary evidence at the revocation hearing. Rather, Henderson admitted another person could have used his phone to attempt the robbery. Fifth, it is notable that Ortiz spoke with the victim and his daughter soon after the incident. Only four days passed between the attempted robbery and the interview with Ortiz. The brevity of this period enhances reliability. See Page v. Clopton, 71 Va. (30 Gratt.) 415, 430 (1878) (holding that after a period of five days the facts were no doubt firmly impressed on his mind and fresh in his recollection ); see also People v. Androvett, 522 N.Y.S.2d 218, 220-21 (N.Y. App. Div. 1987) ( The lineup was conducted within four days of the crime while the witness s memory was still fresh . . . . ); Jackson v. State, 338 So. 2d 231, 232 (Fla. Dist. Ct. App. 1976) ( In view of the fact that the victim herein observed her assailant . . . only nine days later while her memory was still fresh, there is little room for doubt that the identification of the defendant was correct. ). Moreover, the victim and his daughter had already reported the incident to police officers before speaking with Ortiz. Their quick report supports reliability. Cf. Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 (1967). Sixth, a large portion of the victims statements did not concern Henderson. That the victims limited their statements concerning Henderson tends to enhance their credibility since it shows they did not deliberately structure their statements to implicate Henderson. Cf. Monroy v. City of Los Angeles, 78 Cal. Rptr. 3d 738, 753 (Cal. Ct. App. 2008) (stating that credibility may be enhanced when a defense expert agrees with a plaintiff s expert ). - 14 - Finally, the victim and his daughter would be subject to criminal liability if they made a false report to the police. Code § 18.2-461. This increases their reliability. See Beckner v. Commonwealth, 15 Va. App. 533, 535, 425 S.E.2d 530, 532 (1993). Home Invasion Robbery Regarding the second incident, the victim told Ortiz that several men came to his door at night and knocked on the door, but the victim did not open it because he saw who was there. The men entered the door, which was unlocked, and stole property. The first person to enter possessed a gun in his waistband. The victim identified Henderson as the second person to enter. Unlike the first incident, the story related here is not detailed. Rather, it is simply a statement that several people knocked on the victim s door, entered without permission, and took property. It is true that a lack of detail diminishes reliability. Furthermore, the victim had several prior larceny convictions and had agreed to plead guilty to grand larceny, which again makes his story less reliable. That said, other evidence presented significantly corroborated the victim s account to make the story reliable. See Rondeau, 430 F.3d at 48; see also United States v. Pratt, 52 F.3d 671, 675 (7th Cir. 1995). First, Henderson and an accomplice made incriminating statements about Henderson s involvement. During a police interview, Henderson admitted he knew the other perpetrators of the robbery. He also admitted he had been in a car with them. A search of the car from a warrant discovered property belonging to the victim. During a monitored telephone conversation, the gunman from the robbery said they got me and they got [Henderson]. Second, other monitored telephone calls plainly established the fact that the robbery occurred. It was learned that some of the victim s property was in the house of Henderson s brother. The gunman instructed the brother to remove the property. The gunman made - 15 - numerous threats towards the victim. The gunman eventually arranged to return the stolen property to the victim. Although this evidence does not necessarily indicate Henderson s involvement, it proves another fact crucial to the case: the existence of a robbery involving the victim. Third, the monitored telephone conversations provided evidence of a motive. At one point, Henderson stated the victim pulled a knife on Martin and the victim should go to jail. In another conversation, the gunman, immediately after stating they got me and they got [Henderson] for the robbery, asked how did they get Martin. Thus, it may be inferred that Martin was the third participant in the robbery, that Henderson shared Martin s unfavorable relationship with the victim, and that Henderson acted upon these sentiments by participating in the robbery. The robbery may have been in retaliation for the victim pulling a knife on Martin, or an act of aggression against someone the perpetrators did not like. Fourth, Henderson provided evasive explanations to Ortiz and the court could make an incriminating inference from this. Crawford, 323 F.3d at 130; Covil, 268 Va. at 696, 604 S.E.2d at 82. Henderson first told Ortiz that the people in the neighborhood simply didn t like him, and that s why his name came up on these two different cases. When Ortiz inquired further about why people did not like him, Henderson stated they just don t. Henderson then mentioned the victim of the home invasion as being one of the people that don t like him just because he had an issue with his brother. The trial court could infer a desire to conceal the truth from Henderson s implausible claim that he was identified as a robber simply because of a general dislike for him in the community. Moreover, by Henderson specifically mentioning the robbery victim as a person who disliked him, the trial court could infer Henderson s involvement in the robbery and a desire to discredit the victim. - 16 - Fifth, the court could again make an incriminating inference from Henderson s statements regarding his whereabouts the night of the robbery. Henderson told Ortiz that on the night of the incident, he was on his porch talking with others between 8:00 p.m. and midnight. Yet at the hearing, Henderson presented the testimony of his mother, who stated that when she arrived home at 10:20 p.m., Henderson was in his room and did not leave the house that night. Furthermore, when police searched Henderson s house, they were told that Henderson was not there the day of the incident. The court could choose to believe that Henderson and his mother were seeking to conceal his guilt and regard this as additional proof of culpability. Sixth, it is notable that the victim reported the robbery soon after it was alleged to have occurred. Ortiz testified she was called at night at my house to come in to investigate a home invasion robbery. This tends to support reliability. Cf. Herron, 208 Va. at 330, 157 S.E.2d at 198. Seventh, the victim would have been subject to criminal liability for filing a false report. Code § 18.2-461. This increases a complainant s reliability by attaching a penalty to misleading police. See Beckner, 15 Va. App. at 535, 425 S.E.2d at 532. Taken together, the evidence revealed a reliable account of a robbery involving Henderson. While the victim s story standing alone would not support a reliability finding, the other evidence, including statements by Henderson, provided a reliable history. B. Balancing Test Attempted Robbery Incident In considering whether the government had shown adequate reasons for not producing the victims of this incident to testify, persuasive are Henderson s admissions corroborating the victims accounts and the fear of retribution for testifying. - 17 - In Bell, 785 F.2d at 644, the court held admission of police reports proper without the officers presence where the defendant partially corroborated the reports. The police reports detailed an occasion where police arrested Bell for driving while intoxicated, possessing marijuana, and possessing narcotic paraphernalia. Id. at 642. Bell admitted that he was driving on a public highway in the middle of the night without his lights on, and that he had been drinking. Id. at 644. While acknowledging that drinking does not establish intoxication, the court found this corroboration sufficient to justify admitting the police reports without confrontation. Id. The court held that in light of all of these reports and . . . the force of Bell s own concessions, we are morally certain that no substantial purpose would have been served by requiring the officers personal presence. Id. The court continued by stating that the officers would simply have repeated what is in the reports, and none of the contentions made by Bell at his revocation hearing indicates that he would have been able to shake their account in any substantial way. Id. This was also in spite of the fact that Bell apparently made no admissions concerning his arrest for drugs. Id. In United States v. Jones, 299 F.3d 103 (2d Cir. 2002), the court held it proper to consider fear or risk of retaliation under circumstances relevant to this case. Jones was on supervised release after having been convicted of participating in a racketeering enterprise. Id. at 105. Through hearsay testimony of an officer, the government presented evidence that Jones had been standing in the doorway of an apartment building while masturbating and making sexual remarks to a fifteen-year-old girl. Id. at 107. The hearsay declarants were the wife of the officer and the young girl. Id. The girl told the officer she was scared from the incident. Id. After Jones was arrested that day, he told the officer it s not over. Okay. I ll get you. Id. In assessing whether the government presented sufficient reasons for denying confrontation, the court found with - 18 - regard to both eyewitnesses, Jones s history of violent conduct made reprisal against them a possibility. Id. at 113. With respect to the attempted robbery incident, Henderson s admissions alone justified the admission of hearsay. The only part of the hearsay concerning Henderson was the use of his phone to set up the attempted robbery, which he admitted was possible. Although this does not corroborate the remainder of the account, it is a significant piece of evidence. Furthermore, it is unclear how Henderson would impeach the hearsay declarants or how any changes in the victims account would affect Henderson since only his phone was involved. Under Bell, the corroboration provided is adequate. Yet Henderson s corroborating statements did not represent the only basis for admission, for the potential threat to the victim and his daughter also provided a ground to excuse their presence. Ortiz testified that the victim explained to me he really didn t want to file charges because people knew his daughter, and they all were in the neighborhood, they live in the same neighborhood, they knew where he lived. Obviously, the victim was afraid of retaliation if charges went forward. Like the defendant in Jones, Henderson had a history of violent conduct, i.e., the robbery he committed in 2000 and the home invasion robbery from this case. This represented substantial ground to believe retaliation was possible. Moreover, the victim s daughter was familiar with Henderson. Henderson s involvement was discovered because the daughter recognized his phone number. She knew Henderson by his first name and had him come to her residence to discuss the incident. As such, it is likely she was familiar with Henderson s personality and his propensity for violence. This gives additional weight to the victim s fear. For the reasons already discussed above, the hearsay was clearly reliable. Thus, the hearsay at issue meets the requirements of the balancing test. - 19 - Home Invasion Robbery Under facts and arguments extremely similar to this incident, the court in Martin held the hearsay was admissible. The court held: In the present case, Martin argues that the government has failed to adequately explain its failure to present Garcia s live testimony. Martin points out that, although Sperando did testify regarding Garcia s refusal to testify against Martin in state court, those state court proceedings occurred more than a year before the revocation hearing and yet, since those state court proceedings, the government had made no attempt to interview or subpoena Garcia. Moreover, Martin contends, there has been no showing that Garcia s alleged reason for refusing to testify (i.e., her fear of retaliation by a crime family ) is well-founded. Consequently, Martin argues, the government has failed to show that the burden of producing Garcia s live testimony is inordinate. * * * * * * * In the present case, the government did offer an explanation for why the burden of producing Garcia as a live witness would be inordinate. The government presented evidence that Garcia repeatedly stated that she would not testify against Martin and that, when Garcia was subpoenaed to testify against Martin in state court, she appeared in court but refused to testify. The government believed that Garcia likewise would not testify against Martin at his supervised release revocation hearing and that serving her with a subpoena would be futile. The government also demonstrated that the hearsay evidence was reliable. . . . [W]e hold that the government met its burden to show good cause for not producing Garcia as a live witness at the revocation hearing. 382 F.3d at 845-46 (citation omitted). Like Martin, the Commonwealth plainly demonstrated here that the victim refused to testify from fear of retaliation. The following dialogue occurred during the hearing: [Prosecutor]: Would it be fair to say ultimately, Detective Ortiz, that the victim . . . refused to come to court and to testify to the circumstances of the home invasion? [Ortiz]: Yes. I actually personally met with him and his mother, and they were extremely scared of retaliation. My victim s mother - 20 - . . . she basically said she the day before the court she heard gunshots around the house, and that really scared her. A charge was filed against Henderson in connection with the robbery, but was nolle prosequied when the victim refused to testify. Such fear was justified, for Ortiz testified that in monitored phone conversations the gunman made a lot of threats towards the victim. Based on this evidence, the Commonwealth showed the victim refused to testify from fear of Henderson or his accomplices. Considering that in a previous proceeding the Commonwealth was forced to nolle prosequi a charge because of the victim s refusal to testify, there is no reason to believe a different result would occur at a revocation hearing. Id. at 846. As such, the only inquiry was whether the evidence was reliable. Farmer, 567 F.3d at 347. For the reasons detailed above, it was reliable. 5 5 We address the dissent in this footnote. Initially, we note the dissent assumes a premise unsupported by the record. That premise is that Henderson preserved for appeal the issue of whether a trial court is required to enunciate on the record a finding of good cause and/or the reasoning leading to such a finding. The issue of whether a trial court must explicitly find good cause on the record is separate from the issue of whether the trial court abused its discretion in finding good cause. Preservation requires, quoting the relevant portion of then Rule 5A:18, that an objection be stated together with the grounds therefor at the time of the ruling. Those grounds must be . . . stated with specificity. Kovalaske v. Commonweath, 56 Va. App. 224, 229, 692 S.E.2d 641, 645 (2010) (quoting McDuffie v. Commonwealth, 49 Va. App. 170, 177, 638 S.E.2d 139, 142 (2006)). Rule 5A:18 require[s] that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. Bazemore v. Commonwealth, 42 Va. App. 203, 218, 590 S.E.2d 602, 609 (2004) (en banc) (quoting Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)). We have recently emphasized these requirements of Rule 5A:18. See Dickerson v. Commonwealth, 58 Va. App. 351, 355-56, 709 S.E.2d 717, 719 (2011); Scott v. Commonwealth, 58 Va. App. 35, 44, 707 S.E.2d 17, 22 (2011). As we held in Andrews v. Creacey, 56 Va. App. 606, 635-36, 696 S.E.2d 218, 232 (2010), a general objection by appellant was insufficient to alert the trial court that she was objecting to the court s failure to [explicitly] consider the factors enumerated. A general objection to purported inadmissible hearsay testimony, as here in issue, does not suffice. To be sure, had the trial record contained any reference whatsoever as to an objection based upon the failure of the trial court to enunciate a finding of good cause, the dissent would have quoted the same. Given that absence, the dissent creates a startling proposition: because a trial judge is presumed to know the law, a trial judge may err when that judge fails to rule upon an issue never presented for consideration. In short, the dissent maintains that a trial judge must - 21 - address grounds for an objection that could have been or might have been raised by a litigant. Such logic does not just ignore the strictures of Rule 5A:18; it eviscerates that Rule. Here, as we noted in footnote 4, the issue of enunciating good cause was never raised in the trial court. Nor was that issue an assignment of error. The first sentence of this majority opinion recited the assignment of error. We here repeat it: The trial court violated [his] right of confrontation by admitting . . . hearsay testimony. Rule 5A:12(c)(1)(i) states in part: Only assignments of error assigned in the petition for appeal will be noticed by this Court. See also McLean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720 (1999) (en banc). The purpose of assignments of error is to point out the errors with reasonable certainty in order to direct this court and opposing counsel to the points on which appellant intends to ask a reversal of the judgment, and to limit discussion to these points. Harlow v. Commonwealth, 195 Va. 269, 271, 77 S.E.2d 851, 853 (1953) (emphasis added). In reversing this Court, the Virginia Supreme Court agreed that an appellate court may not recast an argument made in a lower court into a different argument upon which to base its decision. Clifford v. Commonwealth, 274 Va. 23, 25, 645 S.E.2d 295, 297 (2007); see also Commonwealth v. Brown, 279 Va. 235, 240, 687 S.E.2d 742, 745 (2010). And as is here pertinent we quote the following: Our system of appellate review requires the litigants to place before the reviewing court the issues that are the subject of the appeal. It is not proper for an appellate court to intervene on behalf of a particular party and reframe an issue to help their cause; such action violates a basic premise that American courts act as neutral arbiters. Moore v. Commonwealth, 276 Va. 747, 761, 668 S.E.2d 150, 158 (2008) (Lemons, J., dissenting). The dissent assumes that the failure to enunciate good cause is assigned as error. It plainly was not. And by addressing that issue the dissent ignores Rule 5A:12(c)(1)(i) and the jurisprudence it has generated. Moreover, Rule 5A:20(e) requires that an appellant s opening brief contain [t]he standard of review and the argument (including principles of law and authorities) relating to each assignment of error. Assertions of error unsupported by authority do not merit appellate consideration. Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992); see also Reid v. Commonwealth, 57 Va. App. 42, 48, 698 S.E.2d 269, 271 (2010); Atkins v. Commonwealth, 57 Va. App. 2, 20, 698 S.E.2d 249, 258 (2010). As counsel conceded in oral argument, the issue of whether a trial court had a duty to make express findings on the record in support of a good cause determination was never raised in Henderson s petition for appeal, in the opening brief before the three-judge panel, or in the opening brief en banc. Thus, no authority addressing that issue has ever been presented to any court, as required by Rule 5A:20(e). The dissent, in addressing the actual assignment of error, concludes the trial court erred in failing to permit Henderson to confront and cross-examine the witness. This assertion begs the question ( petito principii ). It is the logical fallacy in which the proposition to be proven is assumed in the premise. As we wrote above, while we do review due process implications as a matter of law de novo, the core issue before us is not whether Henderson was denied confrontation; rather, the issue is whether there was good cause for the admission of the - 22 - VII. CONCLUSION In review of this probation revocation hearing, we hold the trial court did not abuse its discretion in admitting the challenged hearsay testimony, there being good cause for its admission. The admission did not violate Henderson s Fourteenth Amendment due process right of confrontation. The judgment of the trial court is affirmed. Affirmed. challenged evidence. As we have pointed out, the question of the existence of good cause, and thus the propriety of that admission, is reviewed upon an abuse of discretion standard. It is [o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred. Grattan, 278 Va. at 620, 685 S.E.2d at 644 (emphasis added) (citation omitted). The majority does not find such an abuse here occurred, and thus we differ from the dissent. The dissent urges us to adopt the balancing test as the proper measure of good cause. We specifically chose not to adopt any specific test as that measure. We note that Federal Rule of Criminal Procedure 32.1(b)(2)(C), which codified the Morrissey good cause test, likewise makes no such choice. In revocation hearings, a respondent is granted [a]n opportunity to . . . question any adverse witness unless the court determines that the interest of justice does not require the witness to appear. Fed. R. Crim. P. 32.1(b)(2)(C). And, as have we, the federal appellate courts apply an abuse of discretion standard in their analysis. See, e.g., United States v. Black Bear, 542 F.3d 249, 255 (8th Cir. 2008); United States v. Ray, 530 F.3d 666, 667-68 (8th Cir. 2008); Williams, 443 F.3d at 46. Again in its conclusion, the dissent maintains that because Crawford v. Washington, 541 U.S. 36 (2004), has altered the Sixth Amendment Confrontation Clause landscape in criminal trials, we should apply the principles therein enumerated to revocation hearings. But the dissent earlier acknowledged that the Sixth Amendment is not at issue in this case. And, as we pointed out in our footnote 3, Henderson has never asserted any Sixth Amendment right and at oral argument en banc counsel agreed the Sixth Amendment does not apply. The dissent maintains the trial court erred for a reason not presented to the trial court for consideration, not assigned as error, and unsupported on brief before this Court by any authority, that is, a failure to enunciate a finding of good cause. Accordingly, we see no need to address that argument. And for that same reason, as set forth in footnote 3, and noted above, we do not address the dissent s assertion of a violation of the Sixth Amendment. Finally, while respecting the dissent s argument concerning the non-existence of good cause, the majority, also reasonable jurists, differs, and finds that good cause did exist for admission of the challenged testimony. - 23 - Petty, J., with whom Elder, J., joins, concurring. I concur and I join in the majority opinion except as to footnote 5. - 24 - Humphreys, J., with whom Alston, J., joins, dissenting. I respectfully dissent from the judgment and analysis of my colleagues in the majority for two reasons. First, I believe that the circuit court erred in failing to permit Henderson to confront and cross-examine the witnesses accusing him of violating the terms and conditions of his probation or alternatively erred in its failure to find good cause for not doing so. Second, I believe that the courts of the Commonwealth should adopt a balancing test to determine when good cause exists for excusing the prosecution from producing such witnesses for cross-examination. In this case, the Commonwealth asked the circuit court to revoke Henderson s probation based upon his failure to be of good behavior. Henderson was not convicted of any new criminal offenses, nor at the time of the hearing in this case was he even charged with any. In fact, the Commonwealth essentially took the position that Henderson committed new crimes based upon one incident in which no charges were ever brought and a second incident in which the charges were dropped by the Commonwealth. Thus, at no time did those who asserted criminal activity on the part of Henderson testify under oath, much less were they subjected to prior cross-examination concerning their accusations against Henderson. Instead, the Commonwealth simply called Detective Ortiz as its sole witness, whose testimony was primarily a recitation of the hearsay statements of potential witnesses contained in her investigative report in connection with the two incidents never prosecuted. I recognize that a probation revocation hearing is not a trial and hearsay is generally admissible at such hearings. I further recognize that generally, [t]he admissibility of evidence is within the discretion of the trial court, and we review its decision only for abuse of discretion. Dickens v. Commonwealth, 52 Va. App. 412, 417, 663 S.E.2d 548, 550 (2008) (citing Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). However, whether - 25 - appellant s due process right of confrontation was violated is a question of constitutional law and is reviewed de novo. Id. (citing Michels v. Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006)). As the majority has pointed out, both the United States Supreme Court and this Court have . . . held that probation revocation hearings are not a stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution. Id. (citing Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991)); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972). As such, the United States Supreme Court has stated that in revocation hearings formal procedures and rules of evidence are not employed, Scarpelli, 411 U.S. at 789, and that the process of revocation hearings should be flexible enough to consider evidence . . . that would not be admissible in an adversary criminal trial, Morrissey, 408 U.S. at 489. Dickens, 52 Va. App. at 421, 663 S.E.2d at 552. However, [p]robation revocation, like parole revocation, . . . does result in a loss of liberty. Accordingly . . . a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer. Scarpelli, 411 U.S. at 782; see Davis, 12 Va. App. at 84, 402 S.E.2d at 686. Accordingly, the United States Supreme Court held in Morrissey that due process requires that, even in a revocation hearing, the defendant has the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). 408 U.S. at 489. 6 Thus, hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted 6 Virginia cases that cite to Morrissey inexplicably omit the parenthetical language (unless the hearing officer specifically finds good cause for not allowing confrontation). 408 U.S. at 489; see Dickens, 52 Va. App. at 417, 663 S.E.2d at 550; Copeland v. Commonwealth, 14 Va. App. 754, 756, 429 S.E.2d 294, 295 (1992). - 26 - into evidence in a revocation hearing based on the court s discretion, Dickens, 52 Va. App. at 421, 663 S.E.2d at 552, provided that the circuit court specifically finds good cause for not allowing confrontation, Morrissey, 408 U.S. at 489 (emphasis added). 7 In this case, I note initially that the circuit court never even addressed the issue of whether good cause for not allowing confrontation existed, much less made a specific finding that it did as required by Morrissey, a point simply ignored by the majority. 8 Moreover, since 7 Because of the majority s insistence on characterizing this issue as one of Hearsay Admissibility (see generally section IV of the majority opinion), rather than the due process issue that it is, we have invited confusion of the part of the attorneys and trial judges who expect guidance from this Court. To at least make my position clear, I acknowledge and agree that hearsay is generally admissible in probation revocation hearings, subject only to the constraints of due process and any statutory requirements. Thus, non-testimonial hearsay is admissible because it does not implicate any due process confrontation issue while testimonial hearsay is not admissible as it is violative of the Due Process Clause of the Fourteenth Amendment if the record does not reflect good cause for the Commonwealth s failure to produce the accuser for cross-examination. 8 Despite addressing the merits of this issue, the majority nonetheless asserts that Henderson has waived this issue by his failure to object with sufficient specificity. The basic premise behind the contemporaneous objection requirement of Rule 5A:18 that an objection be made with reasonable certainty is to place the court or hearing officer on notice that an error of law will occur or has occurred, in sufficient time to permit corrective action. See Joyner v. Commonwealth, 10 Va. App. 290, 392 S.E.2d 822 (1990). While judges may reasonably differ about the degree to which a record reflects that an objection has been made with reasonable certainty, I do not read either the rule or our jurisprudence interpreting it as requiring more than that a party point to a question, an answer, an exhibit, or as in this case, a witness and advise the court of the basic nature of the asserted error. See e.g. Hicks v. Commonwealth, 17 Va. App. 535, 538, 439 S.E.2d 414, 416 (1994) ( An objection is sufficient if at the time the ruling or order of the court is made or sought, a party makes known to the court the action which he desires the court to take and his grounds therefor. ). In this case, that was certainly done. At the revocation hearing, Henderson objected to Detective Ortiz s testimony regarding what third parties told her because if that hearsay is admitted, that violates his right to confrontation, which he is guaranteed in probation violation proceedings. I believe that this objection was sufficient to make the circuit court aware of the action Henderson desired the court to take and the grounds therefor. Moreover, I do not agree with the majority that Henderson was required to specifically assert the failure of the Commonwealth to establish good cause. Morrissey makes it clear that it was the Commonwealth s burden to establish good cause if it was not willing to produce Henderson s accusers, not Henderson s burden to establish the lack of it. Not only did the Commonwealth fail to assert any reason at all for its failure to produce the witnesses, the prosecutor incorrectly contended that the right of confrontation simply did not apply at all to a revocation hearing and - 27 - the United States Supreme Court s decision in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny, the landscape of the Confrontation Clause of the Sixth Amendment has changed dramatically. Although the Sixth Amendment is not at issue in this case, neither our Supreme Court nor this Court has addressed what constitutes good cause to deny the right of confrontation in revocation hearings provided by the Fourteenth Amendment s due process protections in light of the evolution of the Confrontation Clause of the Sixth Amendment. The majority opinion continues to avoid addressing this issue, leaving the circuit courts with no guidance on how to proceed in such hearings. For the reasons that follow, I believe that the Commonwealth should adopt the balancing test used in a number of our sister states because, of the two tests in use in other jurisdictions, the balancing test is more consistent with the current interpretation of the right of confrontation found in Crawford and its progeny. I. Testimonial Evidence & the Due Process Right to Confrontation In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), [the United States Supreme Court] held that [the Confrontation Clause of the Sixth the circuit court then promptly overruled Henderson s objection without comment and certainly without making any specific finding of good cause for denying confrontation as required by Morrissey. In addition, to the extent that the majority excuses the circuit court s failure to make a specific finding of good cause as required by Morrissey by resting upon the presumption that the circuit court is presumed to know and apply the law correctly, I respectfully suggest that any fair reading of the dialogue between the circuit court, the prosecutor, and Henderson s counsel would lead to the clear conclusion that any such presumption is rebutted by the record and that however inartful the objection by Henderson s counsel might have been, neither the prosecutor nor the circuit court were aware of either the existence or the parameters of the due process right of confrontation or that Morrissey expressly requires that confrontation be provided unless a court specifically finds good cause for not doing so. Finally, as part of its kitchen sink approach to its analysis affirming the judgment in this case, the majority also asserts that in this dissent I have recast the assignment of error in this case. I respectfully disagree and note that the assignment of error granted by the September 15, 2010 order of this Court in its entirety is as follows: Appellant contends the trial court violated his right of confrontation by admitting Ortiz s hearsay testimony. It is that assignment of error that I believe was preserved below and which I have tried, however unpersuasively to the majority, to address here. - 28 - Amendment] bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Davis v. Washington, 547 U.S. 813, 821 (2006). Therefore, [o]nly [testimonial statements] cause the declarant to be a witness within the meaning of the Confrontation Clause. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Id. (internal citation omitted). See also Michigan v. Bryant, 131 S. Ct. 1143, 1153 (2011) ( We therefore limited the Confrontation Clause s reach to testimonial statements . . . . (citing Crawford, 541 U.S. at 68)). Because the right to confrontation in revocation hearings is more relaxed than that of the Sixth Amendment s Confrontation Clause, see Dickens, 52 Va. App. at 421-22, 663 S.E.2d at 552 ( the Sixth Amendment right of confrontation is a more rigorous right than the due process requirement in a revocation context because a revocation hearing is not a criminal proceeding and the full panoply of rights due a defendant does not apply to [probation] revocation (alteration in original) (quoting Morrissey, 408 U.S. at 480)), it naturally follows that the due process guarantees of the Fourteenth Amendment cannot exceed those that the Confrontation Clause requires in the context of a trial. As such, any right to confrontation conferred by the requirements of due process can likewise only apply to testimonial hearsay. Thus, before determining whether good cause existed to excuse denying Henderson the right to confront his accusers, we must first determine whether the testimony of Ortiz constitutes testimonial hearsay. The majority is silent on the issue of whether or not a due process right of confrontation attached to Ortiz s testimony in the first instance and thus I begin my analysis there. - 29 - The United States Supreme Court has not provided a precise definition of what is testimonial. Instead, the Court provided in Crawford that [a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. 541 U.S. at 51. Further, [s]tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Id. at 52. In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. Id. at 53. Although the Court declined to define what it meant by interrogation it provided that [w]e use the term interrogation in its colloquial, rather than any technical legal, sense, and further that one can imagine various definitions . . . , and we need not select among them in this case. Id. at 53 n.4. Later, in Davis, the Court further clarified what constitutes a testimonial statement: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Crawford v. Commonwealth, 281 Va. 84, 98, 704 S.E.2d 107, 116 (2011) (emphasis added) (quoting Davis, 547 U.S. at 822). The Court also explained that when it said in Crawford that interrogations by law enforcement officers fall squarely within [the] class of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. - 30 - Davis, 547 U.S. at 826 (alteration in original) (quoting Crawford, 541 U.S. at 53). Thus, a statement is testimonial if it is given while [t]here was no emergency in progress, and is made for the purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution. Crawford, 281 Va. at 98, 704 S.E.2d at 116 (alterations in original) (quoting Davis, 547 U.S. at 829, 822). The United States Supreme Court recently addressed the Sixth Amendment Confrontation Clause in Bryant, 131 S. Ct. 1143, and further expanded upon what constitutes a police interrogation which primary purpose is to enable police assistance to meet an ongoing emergency. Id. at 1150. In Bryant, the Court held that the statements of a dying man made to the police were non-testimonial when the officers asked the victim questions after finding him shot at a gas station and did not know the shooting location, the location of the assailant or whether the assailant posed a continuing threat. The Court noted that, the most important instances in which the [Confrontation] Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial. Id. at 1155. However, the Supreme Court went on and explained, [w]hen, as in Davis, the primary purpose of an interrogation is to respond to an ongoing emergency, its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Id. (emphasis in original). - 31 - To determine whether the primary purpose of an interrogation is to enable police assistance to meet an ongoing emergency, which would render the resulting statements non-testimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties. Id. at 1156 (quoting Davis, 547 U.S. at 822). In this objective analysis, a court may consider the statements and actions of both the declarant and interrogators and the circumstances in which an encounter occurs to determine the primary purpose of the interrogation. Id. at 1160. With respect to the crime that Henderson allegedly took part in on October 2, 2009, Detective Ortiz testified that after she was assigned to the case, she called the victim and the victim s daughter to review the case. The October 6 statements of the victim and the victim s daughter to Ortiz as recorded by her in her investigative report were the basis of the testimony that Ortiz gave at the revocation hearing regarding the October 2 crime. From the record, it is clear that this testimony came from the formal setting of a police officer investigating a past crime by seeking facts regarding each alleged robbery for the purpose of apprehending and prosecuting the perpetrator. Id. ( Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution, [Davis, 547 U.S.] at 822, informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. ). Ortiz s interrogation of the victim and the victim s daughter in the first incident occurred four days after the alleged crime and after a full preliminary investigation was conducted. Further, the interviews took place over the phone, further demonstrating that there was clearly no ongoing emergency and that the statements were taken for the express purpose of possible criminal - 32 - prosecution. Thus, Ortiz s statements at trial relating to the October 2 incident were clearly testimonial hearsay. Detective Ortiz also testified concerning an alleged home invasion robbery that took place on the night of October 8, 2009. Ortiz testified from her report that she met with the victim at the police station regarding the incident. Although this investigation took place the same evening of the alleged crime, it occurred away from the scene of the crime in the safety of the police station. Further, Ortiz was only present because of the supposed participation of Henderson in the crime. Thus, the information Ortiz received from the victim was not provided during an ongoing emergency in order to enable police to respond to it; rather, Ortiz was seeking to determine what had already occurred and to preserve it for later use in connection with criminal court proceedings. Crawford, 281 Va. at 98, 704 S.E.2d at 116. As such, Ortiz s testimony relating to the second incident also constituted testimonial hearsay, to which the limited Fourteenth Amendment due process right of confrontation applies. II. The Appropriate Test for Good Cause As discussed supra, a probationer at a revocation hearing has 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 (emphasis added). As the majority correctly points out, different jurisdictions are split between two tests in order to determine whether to admit testimonial hearsay evidence under the good cause exception. In Reyes v. State, 868 N.E.2d 438, 441 (Ind. 2007), the Indiana Supreme Court explained both methods: In one, the trial court employs a balancing test that weighs the probationer s interest in confronting a witness against the interests of the State in not producing the witness. E.g., United States v. Martin, 382 F.3d 840, 844-45 (8th Cir. 2004). In the balancing test, the State is required to show good cause for denying confrontation. See United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005). In another test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a - 33 - substantial guarantee of trustworthiness. E.g., United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006). The requirement, found in Morrissey, 408 U.S. at 489, that the trial court find good cause before denying the right to confrontation plays an explicit role when a trial court performs a balancing test; however, this does not mean that Morrissey s good cause requirement is not addressed in the substantial trustworthiness test. . . . [T]he substantial trustworthiness test implicitly incorporates good cause into its calculus. See also People v. Breeding, 772 N.W.2d 810, 485 (Mich. 2009) (quoting Reyes, 868 N.E.2d at 441). In assessing the probationer s interest in confronting a witness under the balancing test, a court must consider that although every [probationer] has the right to confrontation, this right is not static, but is of greater or lesser significance depending on the circumstances. [United States v.] Martin, 984 F.2d [308,] 310-11 [(9th Cir. 1993)]. 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. See id. at 311. As the Martin court emphasized, the more significant particular evidence is to a finding, the more important it is that the [probationer] be given an opportunity to demonstrate that the proffered evidence does not reflect verified fact. Id. So, too, the more subject to question the accuracy and reliability of the proffered evidence, the greater the [probationer s] interest in testing it by exercising his right to confrontation. United States v. Comito, 177 F.3d 1166, 1171 (9th Cir. 1999). However, [i]n the balancing process, the [probationer s] interest in confronting the declarant is entitled to little, if any, weight where the declarant s absence is the result of intimidation by the [probationer]: Where a defendant has procured the declarant s unavailability by chicanery, . . . by threats, . . . or by actual violence or murder, the defendant is deemed to have waived his sixth amendment rights and, a fortiori, his hearsay objection to the admission of the declarant s statements. United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006) (quoting United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984)). - 34 - In assessing the government s position, the [court] should consider, first, the explanation the government offers of why confrontation is undesirable or impracticable and, second, the reliability of the evidence which the government offers in place of live testimony. Martin, 382 F.3d at 845 (quoting United States v. Bell, 785 F.2d 640, 643 (8th Cir. 1986)). Where the government demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable, it has made a strong showing of good cause. Id. (quoting Bell, 785 F.2d at 643). Where, on the other hand, . . . the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the probationer is entitled to confrontation. Id. (quoting Bell, 785 F.2d at 643). On the other hand, under the reliability test the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness, and the substantial trustworthiness test implicitly incorporates good cause into its calculus. Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692; Crawford v. Jackson, 323 F.3d 123, 131 (D.C. Cir. 2003); Hampton v. State, 203 P.3d 179, 184-85 (Okla. Crim. App. 2009). Hearsay evidence has been held admissible in federal probation and parole revocation proceedings where the evidence is demonstrably reliable. Turner v. Commonwealth, 278 Va. 739, 742, 685 S.E.2d 665, 667 (2009) (quoting United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982)). In Curtis v. Chester, 626 F.3d 540, 545 (10th Cir. 2010), the court noted the following [e]xamples of evidence possess[ed] recognized indicia of reliability : (1) the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence), (2) statements falling under an established exception to the hearsay rule, (3) statements corroborated by detailed police investigative reports, and (4) statements corroborated by the releasee s own statements. See [Scarpelli], 411 U.S. at 782 n.5; Prellwitz v. Berg, 578 F.2d 190, - 35 - 193 (7th Cir. 1978) (evidence falling under the business record hearsay exception is reliable); Jackson, 323 F.3d at 130-31 (evidence corroborated by observations in a police investigative report is reliable); McCallum, 677 F.2d at 1026 (evidence corroborated by the releasee s testimony is reliable). See also United States v. McCormick, 54 F.3d 214, 224 (5th Cir. 1995) (concluding that [s]ubstantial evidence enhanced the reliability of the information contained in the . . . report ); United States v. Garcia, 771 F.2d 1369 (9th Cir. 1985) (holding evidence reliable where defendant s in-court statements supported the evidence and he pled guilty on numerous charges before several different judges). In United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009), the court noted, [h]earsay given under oath, Comito, 177 F.3d at 1171, Crawford, 323 F.3d at 129, replete with detail, United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986); Crawford, 323 F.3d at 129, or supported by corroborating evidence, Kelley, 446 F.3d at 692; Martin, 382 F.3d at 846, has been recognized as reliable. Conversely, out-of-court statements reflecting an adversarial relationship with the accused, Comito, 177 F.3d at 1171, or containing multiple layers of hearsay, United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995); Crawford, 323 F.3d at 129, have been recognized as unreliable. Although the Supreme Court of the United States has yet to review either test, other jurisdictions have found both tests to be proper under current constitutional jurisprudence. Virginia has not expressly adopted either of the tests. Nevertheless, the Fourteenth Amendment s due process protections include a right to confrontation in revocation hearings that the courts of the Commonwealth must protect and we should provide some direction to the circuit courts of the methodology for doing so. See Morrissey 408 U.S. at 480. Although this right contains the good cause exception not found in that of the Confrontation Clause of the Sixth Amendment, see Dickens, 52 Va. App. at 421-22, 663 S.E.2d at 552, it is important to understand the evolution of the Sixth Amendment s Confrontation Clause in order to determine the extent to which even a diluted version of the right of confrontation applies in revocation - 36 - hearings. In Crawford v. Washington and the several Sixth Amendment cases that followed it, the Supreme Court clearly and emphatically shifted away from using reliability as a factor in any Sixth Amendment Confrontation Clause analysis. If reliability no longer has any place in a Sixth Amendment inquiry, I fail to see how it retains any vitality even in its separate and diluted due process guise. Thus, I believe that in the Commonwealth, the good cause exception to providing confrontation in revocation hearings should rest upon the balancing test. Prior to Crawford, 541 U.S. 36, Ohio v. Roberts, 448 U.S. 56 (1980), controlled the Sixth Amendment Confrontation Clause jurisprudence through the application of an indicia of reliability test. Crawford expressly overruled Roberts. In Roberts, the Supreme Court specifically held that when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. 448 U.S. at 66. Thus, under Roberts, the Confrontation Clause was satisfied if the witness was unavailable and the hearsay statement was sufficiently inherently reliable to satisfy a long-standing exception to the rule barring hearsay testimony. The Supreme Court began its retreat from excusing confrontation if the hearsay evidence was subjectively reliable in Lilly v. Virginia, 527 U.S. 116 (1999), where it held that only evidence that could be classified within a firmly rooted hearsay exception was sufficiently trustworthy to excuse confrontation and such exceptions could only be considered firmly rooted if, in light of longstanding judicial and legislative experience, Idaho v. Wright, 497 U.S. 805, 817, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990), it rests [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the substance of the constitutional protection. Roberts, 448 U.S. - 37 - at 66 (quoting Mattox [v. United States], 156 U.S. [237,] 244 [(1895)]). This standard is designed to allow the introduction of statements falling within a category of hearsay whose conditions have proven over time to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath and cross-examination at a trial. Mattox, 156 U.S. at 244. Id. at 126 (first three alterations in original). Established practice, in short, must confirm that statements falling within a category of hearsay inherently carry special guarantees of credibility essentially equivalent to, or greater than, those produced by the Constitution s preference for cross-examined trial testimony. Id. (emphasis added) (citation omitted). I note that in Lilly, the United States Supreme Court reversed both the Virginia Supreme Court and the previous precedent of this Court in holding that accomplice statements admitted under the hearsay exception for statements made against penal interest are not within a firmly rooted exception to the hearsay rule. Id. at 134. However, the Supreme Court overruled the so-called indicia of reliability test set forth in Roberts and Lilly in Crawford v. Washington, 541 U.S. 36 (2004), [and] held that the Confrontation Clause applies to testimonial hearsay and in order for such hearsay to be admissible, the witness must be unavailable and the accused must have had an opportunity for cross-examination. Id. at 68. The Court noted that the Confrontation Clause targeted a specific evil, namely the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. Id. at 49. The Court reasoned that the Confrontation Clause protects against testimonial statements because, it only applies to witnesses against the accused in other words, those who bear testimony. Id. at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). Dickens, 52 Va. App. at 418, 663 S.E.2d at 551. The [Supreme] Court stated [w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy - 38 - constitutional demands is the one the Constitution actually prescribes: confrontation. Crawford, 281 Va. at 97, 704 S.E.2d at 115 (quoting Crawford, 541 U.S. at 68-69). Following its decision in Crawford v. Washington, the Supreme Court has continued to demonstrate its unwillingness to allow prosecutors to avoid defendants Confrontation Clause rights regardless of the reliability of the testimony itself. In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Court declined to create a forensic evidence exception to their test in Crawford v. Washington, holding that a forensic laboratory report which was prepared for a criminal trial was still testimonial for Confrontation Clause purposes. Id. at 2532. Most recently, in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the Supreme Court held that a forensic laboratory report that was obtained using standard procedures and was certified by a technician could not be introduced through a different technician who did not personally perform the analysis that was contained in the report. Id. at 2710. In reaching its holding, the Court rejected the New Mexico Supreme Court s contention that the original technician was a mere scrivener who simply transcribed the result[] generated by the gas chromatograph machine, presenting no interpretation and exercising no independent judgment. Id. at 2713. Instead, the Court reasoned that [the original technician] certified that he received Bullcoming s blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number correspond[ed], and that he performed on Bullcoming s sample a particular test, adhering to a precise protocol. He further represented, by leaving the [r]emarks section of the report blank, that no circumstance or condition . . . affect[ed] the integrity of the sample or . . . the validity of the analysis. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination. Id. at 2714 (internal citations to the record omitted). - 39 - The Supreme Court has also held that the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Melendez-Diaz, 129 S. Ct. at 2540. This is consistent with the balancing test, which requires the Commonwealth to affirmatively establish good cause why it could not produce the witness. The reliability test, on the other hand, can be satisfied through the testimony itself if the testimony is inherently reliable and only implicitly incorporates good cause into its calculus. Reyes, 868 N.E.2d at 441 (citations omitted). Thus, in most instances under the reliability test, the Commonwealth s burden specified in Morrissey is effectively removed from the analysis. A. Applying the Balancing Test Under the balancing test, Henderson had a very strong interest in confronting the witnesses against him, and the Commonwealth failed to provide any reasons why they could not present the actual witnesses against him. Henderson s interest in confronting the witnesses against him was extremely high, because the statements made by the witnesses were detailing the specific criminal wrongdoing of the defendant in crimes that he denied any involvement in. Dickens, 52 Va. App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va. App. 749, 755, 644 S.E.2d 406, 410 (2008)). These allegations therefore directly implicated Henderson in violating the terms of his probation. Specifically, Henderson was alleged to violate the terms of his probation by failing to obey all Federal, State and local laws and Ordinances and report any arrest, including traffic tickets, within 3 days to the Probation and Parole Officer. Since the probation officer was not called as a witness, the hearsay testimony of Ortiz was dispositive of any finding with respect to the alleged violations. Further, Detective Ortiz s testimony was a detailed recitation of the facts given to her by the unsworn verbal allegations of witnesses to two alleged crimes. Comito, 177 F.3d at 1171 - 40 - ( Unsworn verbal allegations are, in general, the least reliable type of hearsay . . . . ). The only other evidence in the record supporting Ortiz s testimony was what the majority characterizes as Henderson s corroboration of what he told the alleged victim of the first crime and his daughter regarding his phone that he lends his phone to a lot of people, and he could not remember whom he had loaned it to that day. Further, while Henderson s mother testified at trial, her testimony of the facts regarding where Henderson was on the night of the alleged second crime was adverse to both Henderson s and Ortiz s testimony, and there is no additional evidence in the record corroborating Ortiz s testimony regarding the witnesses statements she testified to. Curtis, 626 F.3d at 547 ( Because the credibility of the victim s statements are supported by other sources, Curtis has a diminished interest in testing those statements through confrontation. (citing Comito, 177 F.3d at 1171)). Thus, the hearsay testimony was indisputably important to the circuit court s finding of a violation. On the other hand, the Commonwealth provided no reason to the circuit court as to why it could not produce the witnesses for cross-examination and thus the circuit court had nothing to balance against Henderson s right to confront his accusers. There is no evidence in the record that the Commonwealth made any good faith attempt to subpoena the witnesses or otherwise produce them in court. In addition, there is no evidence in the record that the witnesses had moved or that they could not be located. Id. at 547-48 ( In contrast, the government s good cause for not allowing confrontation, Morrissey, 408 U.S. at 489, was that the victim could not be located. ). The majority contends that this case is similar to Bell, 785 F.2d 640. However, Bell is inapt to this analysis for several reasons. In Bell, which predates the changes wrought by Crawford, the court stated it was employing a balancing test where the second prong, the government s burden, could be established under different circumstances: - 41 - First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical. For example, the government might contend that live testimony would pose a danger of physical harm to a government informant, see Birzon v. King, 469 F.2d 1241, 1244 (2d Cir. 1972), or, as suggested by Gagnon, that procuring live witnesses would be difficult or expensive. A second factor that must be considered, and one that has been focused upon by a number of courts, is the reliability of the evidence which the government offers in place of live testimony. See, e.g., United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978); United States v. McCallum, 677 F.2d 1024, 1026-27 (4th Cir.), cert. denied, 459 U.S. 1010, 74 L. Ed. 2d 400, 103 S. Ct. 365 (1982). Thus, where the government demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable, it has made a strong showing of good cause. Where, on the other hand, the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the probationer is entitled to confrontation. Id. at 643. However, in application, the second factor was actually applied much like the reliability test. Id. For example, the majority in this case bolsters its own argument using the court s holding in Bell that a police report was admissible. In actuality, the Bell court held that the police report, which may have been unreliable on its own, was admissible because the defendant s own admissions corroborated the police report to the point to which it became reliable. Id. at 643-44. Thus, in addition to reliability being a suspect consideration postCrawford, the Bell court actually failed to consider either side of the balancing test; it made no finding in regard to the defendant s interest in confronting the witness or the state s interest in not producing the witness. In fact, the court expressly declined to render a judgment on the government s interest in not producing the witness. Id. at 644 ( considerable expense would no doubt have been involved had the government secured, either under subpoena or voluntarily, the personal appearance of the Kansas officers [who wrote the police report]. Whether this expense, coupled with whatever degree of customary reliability can be imputed to arrest reports, would - 42 - constitute good cause for purposes of dispensing with the right of confrontation is a question we need not reach in the present case, because Bell s own admissions sufficiently corroborate the police reports to make it clear that they were indeed reliable. ). 9 The majority suggests the balancing test was satisfied in Henderson s case because the witnesses were intimidated and, thus, should be excused from testifying. In the first place, the Commonwealth asserted no such reason to the circuit court for rejecting Henderson s right to cross-examine his accusers. In the second place, the circuit court made no such specific factual finding as required by Morrissey and finally, it is not a proper role for this Court to make any factual finding of good cause where both the circuit court and the prosecutor were completely silent on the matter below. While I do not dispute that the Commonwealth can use a fear of retaliation or intimidation generated by a defendant or his agents as the basis for a good cause exception to providing confrontation, the record does not support the majority s sua sponte conclusion in that regard. The circuit court made no finding that such was the case nor did the prosecutor even offer that as an explanation as required by the balancing test. Moreover, and contrary to the statement of the majority, the record does not support a conclusion that Henderson himself or through an agent, attempted to intimidate or discourage any witnesses from testifying. In the first incident, the alleged victim merely informed Ortiz that he really didn t want to file charges because people knew his daughter, and they all were in the neighborhood, they live in the same neighborhood, they knew where he lived. Without more, such inchoate concerns about pursuing prosecution do not begin to overcome Henderson s substantial interest in confronting the witnesses against him, nor is it evidence as to why the 9 It should also be noted that the Bell court improperly interpreted Morrissey as being based on the Sixth Amendment. Bell, 785 F.2d at 642 ( In Morrissey, the Supreme Court held that the Sixth Amendment confrontation clause affords parolees in parole-revocation proceedings the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). ). - 43 - Commonwealth could not produce the victim or his daughter at the probation revocation hearing. With respect to the second incident, Ortiz testified that the alleged victim and his mother refused to testify because they were scared of retaliation. However, the only evidence of retaliation in the record involved the second victim s mother who informed Ortiz that the day before the court she heard gunshots around her house, and that really scared her. However, nowhere in the record did Ortiz testify that the witness actually believed the gunshots were in any way connected with Henderson. While Ortiz testified that she had heard one of the other individuals involved in the second crime refer to a gun in a telephone conversation with his girlfriend, the Commonwealth did not establish or even attempt to establish any link between Henderson, the gun referred to, and the gunshots heard near the house. In short, the record before this Court fails to demonstrate that good cause existed for excusing confrontation under the balancing test, because the Commonwealth has failed to satisfy its burden of establishing that a governmental interest was served by not producing the witnesses against Henderson that outweighed Henderson s interest in confronting those witnesses. Therefore, the Commonwealth neither satisfied Henderson s due process right to confront the adverse witnesses against him nor adequately justified its failure to do so. Consequently, the circuit court could not, and therefore did not, satisfy the requirements of Morrissey and balance Henderson s interest in confronting the witnesses against him against any interest the Commonwealth may have had in denying Henderson that right. B. Applying the Reliability Test Although the United States Supreme Court has yet to consider the due process implications of its post-Crawford jurisprudence, it seems clear to me that, where there is a liberty interest at stake, the subjective reliability of any testimonial hearsay no longer has a place in any analysis involving any form of the right to confront and cross-examine one s accuser. - 44 - However, even if I were to assume that the reliability test governs this case, the testimony still should not have been admitted. Contrary to the analysis of the majority, even pre-Crawford, the definition of evidence reliable enough to excuse confrontation was defined in Roberts and Lilly as evidence which satisfies a firmly rooted exception to the evidentiary rule barring hearsay testimony. The majority points to no firmly rooted hearsay exception that would apply to Ortiz s testimony. In fact, none of them do. The majority simply finds her testimony subjectively reliable. However, the majority s subjective assessment of the credibility of the hearsay related by Ortiz plays no role in any application of the reliability test. In this case, the hearsay statements that Ortiz used to establish that Henderson violated the conditions of probation meet no firmly rooted exception to the hearsay rule that makes them inherently reliable. Rather, the evidence upon which the trial court revoked Henderson s probation was unsworn statements by out-of-court witnesses whom Henderson had no ability to cross-examine. See Comito, 177 F.3d at 1171 ( [u]nsworn verbal allegations are, in general, the least reliable type of hearsay . . . (emphasis added)). In the first incident, Ortiz spoke with both the victim and his daughter four days after the incident had occurred, and after both witnesses had spoken with Henderson in person regarding the phone calls. The majority contends that Henderson s own statements corroborate the victim s story. In response, I must first observe that corroboration is not an element of any hearsay exception, firmly rooted or otherwise. Even under the old and now rejected Roberts and Lilly standard for reliability, corroboration was not part of a confrontation analysis. Unless the hearsay evidence was in the form of a dying declaration, exited utterance or some other long standing exception to the rule barring hearsay, the evidence was constitutionally infirm even if corroborated. Moreover, Ortiz only testified that [Henderson] tells me basically the same thing, which, in context, would have been limited to the fact that he had told the victim and his - 45 - daughter that he lends his phone to a lot of people and he do[esn t] remember who he loaned it to that day. This is not corroborative of the attempted robbery. Instead, the fact that Henderson had loaned the phone to someone else and that he did not remember who it was does not corroborate any of the statements regarding Henderson s involvement in the robbery. In the second alleged crime, the victim related eyewitness information to Ortiz at the police station at some point after the incident occurred, but the record is not clear at what point the interview took place. 10 In addition, the information regarding the alleged home invasion robbery was not detailed. Ortiz testified that the victim informed her that three subjects knocked on his front door, entered the unlocked door, and stole some of his personal property. Ortiz stated that the victim told her subject number one had a gun and that subject number two was Terrence whom he had met a couple of weeks prior at the probation office. The victim then picked Henderson as one of the individuals out of a series of photos that Ortiz showed him. These statements are also unsworn statements by an out-of-court witness whom Henderson had no ability to cross-examine and, as such, are inherently unreliable. Id. The majority contends that these statements are reliable because they are also corroborated by Henderson s own statements. Again, I note that inherent reliability based upon a firmly rooted hearsay exception is the test and any extrinsic corroboration is of no moment in a constitutional analysis and the record certainly does not suggest that the victim s statements to Ortiz were exited utterances or subject to the res gestae or any other exception to the hearsay rule. In addition, Henderson s statement to Ortiz only corroborated that he knew one of the co-defendants and that he had been in the vehicle that was involved in the investigation in which some of the stolen property was 10 Ortiz testified that she received a phone call at night at my house to come in to investigate a home invasion robbery and that she came to the station, that was October 8th, met with the victim. She later testified that the home invasion robbery took place around 11:00 at night. - 46 - later discovered by the police. The statements did not corroborate any incriminating evidence against Henderson. The majority cites to Crawford, 323 F.3d 123, in support of their argument. However, Crawford v. Jackson is a 2003 case which was decided prior to Crawford v. Washington. In fact, the same court addressed the issue of whether Crawford v. Jackson was still good law in light of the Supreme Court s decision in Crawford v. Washington in Ash v. Reilly, 431 F.3d 826 (D.C. Cir. 2005). Although the Ash court ultimately held that Crawford v. Washington did not overrule Crawford v. Jackson, the court remanded the case back to the trial court for a rehearing. Id. at 831. Interestingly, on rehearing, the court ultimately employed a balancing test in which whether the Commission impermissibly denied a parolee the right to confront adverse witnesses depends on the parolee s need for confrontation as weighed against the Commission s reasons for not producing adverse witnesses. Ash v. Reilly, 433 F. Supp. 2d 37, 43 (D.D.C. 2006). Because neither of the out-of-court statements made to Ortiz were inherently reliable by satisfying a firmly rooted exception to the hearsay rule, I believe that the majority errs in holding that the hearsay evidence offered by Ortiz is so demonstrably and inherently reliable that Henderson s limited right to confrontation in a probation revocation hearing should have been denied. III. Conclusion Because the Supreme Court has overturned Roberts and Lilly and altered the Sixth Amendment Confrontation Clause landscape with Crawford v. Washington and subsequent cases, I do not believe that reliability is any longer the lynchpin of a confrontation analysis, under either the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment. Although the Sixth Amendment right is not directly implicated in probation hearings, it does directly correlate to the right to confrontation afforded in such proceedings under the Due - 47 - Process Clause of the Fourteenth Amendment. I believe that it makes no sense to maintain a separate analytical formula utilizing otherwise expressly rejected criteria for a due process confrontation analysis as distinguished from a similar, though more rigorous, analysis to the more comprehensive right of confrontation that attaches at trial. For these reasons, I believe that the courts of the Commonwealth should adopt the balancing test because it eschews the superseded reliability analysis that is no longer constitutionally favored and instead, places the burden on the Commonwealth to either produce the witnesses for cross-examination or require it to establish good cause for not doing so. Put differently, in non-trial proceedings involving an accused s liberty interest, I believe that we should adopt an approach that requires the Commonwealth to explain and justify its failure to provide confrontation before considering the evidentiary admissibility of any testimonial hearsay. To do so would be more consistent with the overall purpose of both Morrissey, which requires an opportunity to confront testimonial hearsay as the default position for any due process analysis, and the analytical framework found in the post-Roberts cases of Crawford, Davis, Melendez-Diaz, Bryant, and Bullcoming. As discussed above, what all of these cases have in common is that they require more than mere considerations of reliability in permitting the use of testimonial hearsay in a trial setting, and thus I believe that, where a liberty interest is at stake, the balancing test is more faithful to current confrontation jurisprudence in the context of providing due process. In summary, I would hold that the circuit court erred in failing to either require the Commonwealth to honor Henderson s due process right to confront his accusers or in its failure to require an explanation from the Commonwealth and to make specific findings that good cause existed for not doing so. I would therefore remand this case to the circuit court for a new hearing on the issue of whether Henderson s probation should be revoked, if the Commonwealth is so - 48 - advised. I would further hold that if, on remand, it is necessary for the circuit court to determine if good cause exists for not permitting Henderson to confront the witnesses against him, the circuit court should employ a balancing test as outlined above for making that determination. - 49 - VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 26th day of July, 2011. Terrance Robert Henderson, s/k/a Terrence Henderson, against Appellant, Record No. 0688-10-4 Circuit Court No. CR00-883 Commonwealth of Virginia, Appellee. Upon a Petition for Rehearing En Banc Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty, Beales, Powell and Alston On July 5, 2011 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on June 21, 2011, and grant a rehearing en banc on the issue(s) raised in the petition. On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on June 21, 2011 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court. The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of this Court. The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe Acrobat Portable Document Format (PDF). 1 A Copy, Teste: Cynthia L. McCoy, Clerk By: original order signed by a deputy clerk of the Court of Appeals of Virginia at the direction of the Court Deputy Clerk 1 The guidelines for the creation and submission of a digital brief package can be found at www.courts.state.va.us, in the Court of Appeals section under Resources and Reference Materials. -2- COURT OF APPEALS OF VIRGINIA Present: Judges Humphreys, Haley and Alston Argued at Alexandria, Virginia TERRANCE ROBERT HENDERSON, S/K/A TERRENCE HENDERSON v. OPINION BY JUDGE ROBERT J. HUMPHREYS JUNE 21, 2011 Record No. 0688-10-4 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N.A. Kendrick, Judge Elizabeth Lauwaert Tuomey (Law Office of O. Keith Hallam, Jr., on briefs), for appellant. Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee. Terrance Robert Henderson ( Henderson ) argues in this appeal that the Circuit Court of Arlington County ( circuit court ) violated his due process right to confront the witnesses against him during a probation revocation hearing when it admitted Arlington Detective Rosa Ortiz s hearsay testimony concerning other offenses, which either never resulted in charges against Henderson or were nolle prosequied. I. BACKGROUND Henderson was convicted in the circuit court on January 26, 2001 of robbery, in violation of Code § 18.2-58, and was sentenced to twenty-five years imprisonment with all but six years and eight months suspended. Upon his release from incarceration, the circuit court ordered him to be placed on probation for five years or less if the circuit court or probation officer released him sooner. On September 14, 2009, Henderson was released from prison and began his probation.1 On October 14, 2009, Henderson s probation officer sent a letter to the circuit court noting that Henderson had been arrested and charged with robbery on October 8, 2009, in Arlington County, Virginia, setting forth the specific probation conditions that Henderson violated, 2 and recommending that the circuit court issue a bench warrant as a detainer and return Henderson to the circuit court for him to show cause as to why his probation should not be revoked. The probation officer s letter recommended that the balance of the suspended sentence be imposed and the case be closed. The robbery charge referred to in this letter was later nolle prosequied prior to the revocation hearing. On February 26, 2010, the circuit court held a probation revocation hearing. At the hearing, the Commonwealth added an additional allegation that Henderson was also in violation of the condition of his probation that he be of general good behavior to the previously alleged list of probation violations.3 However, although a total of three conditions of probation were alleged to have been violated, the Commonwealth did not present any evidence regarding Henderson s 1 The March 2, 2001 sentencing order provided for this sentence to run consecutively with all other sentences, which explains the difference between the sentence imposed by the circuit court and the actual time Henderson served. 2 The specific conditions that the probation officer s letter alleged Henderson violated are as follows: Condition #1: I will obey all Federal, State and local laws and Ordinances. Condition #2: I will report any arrest, including traffic tickets, within 3 days to the Probation and Parole Officer. 3 We note that the probation officer was not called to testify regarding his allegations concerning Henderson s performance on probation, nor was the October 14, 2009 letter from the probation officer to the circuit court asserting that Henderson had violated two of the conditions of probation admitted into evidence at the probation revocation hearing. -2- alleged violation of Condition #2, his alleged failure to report an arrest to his probation officer. Indeed, the only evidence offered in support of any of the alleged violations of the conditions of probation was the testimony of Detective Rosa Ortiz ( Ortiz ) who testified regarding two alleged robberies that she had investigated in October 2009. No charges were brought against Henderson in connection with one of these robberies, and the other robbery charge was nolle prosequied. During the Commonwealth s questioning of Ortiz, Henderson s counsel objected to her testimony regarding what the witnesses in both cases told her. 4 The following colloquy took place regarding his objection: [Henderson s counsel]: Your Honor, at this point I m going to object on hearsay. And I understand that hearsay is admissible in these types of proceedings, but I think we have -- there is a qualifier to that case. I mean, I understand that the Davis case controls the hearsay question. However, in the Davis case the Court was referencing and admitting what they determined to be reliable hearsay, meaning hearsay from one government agent to another. To the extent that the detective s testimony is going to cover information not reported from another government agent, or reported from another government agent but from someone who was not a government agent, like one police officer interviews a victim and then the victim reports this crime, to the extent that we are getting into evidence that would be a victim s report of a crime, I think that that is the type of hearsay that should not be allowed in this type of proceeding. Secondly, if that hearsay is admitted, that violates his right of confrontation, which he is guaranteed in probation violation hearings. [Prosecutor]: Two things, Judge. The right of confrontation only attaches at trial. We are post-trial in this case. We are at a revocation proceeding. 4 On brief, Henderson also challenged Ortiz s testimony regarding recorded telephone conversations involving Henderson and a co-defendant, while they were incarcerated, with their family and friends. At oral argument, Henderson s counsel conceded that they were not challenging the testimony regarding the telephone calls, and thus we do not address them. -3- Secondarily, I believe that the Court is in a good position to give the testimony that you are about to hear the appropriate weight that it s entitled to. Certainly, to the extent that a victim or a person may report to a police officer is something that this Court can weigh and decide how much credibility should attach to that. So I would ask the Court to allow its admissibility and to weigh it appropriately. THE COURT: Overruled. (Emphasis added). Ortiz then proceeded to testify regarding the two alleged robberies. The first attempted robbery occurred on October 2, 2009, and Ortiz spoke with the alleged victim and his daughter by telephone on October 6, 2009. Ortiz testified that the victim informed her that he had received a phone call on his cell phone from an unknown number asking him to leave his apartment and to go to the courthouse to sign some legal documents regarding a family member. Upon leaving his apartment, a man approached the victim, and unsuccessfully tried to take the victim s bag, a men s purse. The victim and his daughter advised Ortiz that they had discovered that the call to the victim was made from Henderson s cell phone and that they called Henderson and had him come to their house to talk with the victim regarding the incident. Henderson informed them that he lends his phone to a lot of people, and he could not remember whom he had loaned it to that day. When Ortiz spoke with Henderson, he told her basically the same thing, and later that his phone was stolen and miraculously . . . appeared on his porch two days later. The victim then explained to [Ortiz that] he really didn t want to file charges because people knew his daughter, and they all were in the neighborhood, they lived in the same neighborhood, they knew where he lived. Apparently, no charges were ever brought against Henderson in connection with this incident. The second robbery Ortiz investigated was the October 8, 2009 home invasion robbery which was the basis for Henderson s October 8, 2009 arrest. This charge was later nolle prosequied. Ortiz testified that her supervisor called her at night at her house to come to the -4- police station to investigate a home invasion robbery. She went to the police station, and met with the victim on October 8, 2009. Ortiz testified that the victim informed her that three individuals came to his house, knocked on the front door, opened the unlocked front door after the victim ignored them because he looked and saw who they were, and then entered his home. Ortiz then testified that the victim identified one of the individuals as Henderson whom he had met a few weeks prior to the robbery at the probation office. After they entered his home, the victim explained to Ortiz that one of the other individuals was carrying a gun and displayed the firearm and that they stole some of his personal property. The victim then picked Henderson out of a photo lineup that Ortiz prepared. Ortiz further testified that when she met with the victim and his mother, both ultimately refused to testify because they were scared of retaliation. The victim s mother informed Ortiz she [had] heard gunshots around the house the day before, and that really scared her. Ortiz stated that she never found a gun in this case, but that she had heard one of the other individuals arrested in the second alleged robbery speaking with his girlfriend from jail during a recorded telephone conversation about a gun by reference in a safe. The individual gave the girlfriend the code for the safe, and later said repeatedly that the girlfriend had the gun. Ortiz also testified that in the course of the recorded telephone conversations from jail she heard this other individual state that they got me and they got Terrence. After his arrest, Henderson informed Ortiz that people in the neighborhood simply didn t like him, and that s why his name came up on these two different cases. Henderson also told Ortiz that between 8:00 and midnight, the day of the incident, he was on his porch talking to people and there were other people on the porch. Ortiz also testified regarding a recorded telephone conversation that Henderson had with his mother while he was in jail. During that conversation, Henderson s mother informed him that the second victim s mother was asking for money in -5- exchange for making the charges drop, but that she was not going to pay off the victim s mother. Henderson s mother also testified at the hearing, and reiterated that one of the girlfriends of the other individuals in the second alleged crime told her that the mother of the second victim was requesting money, but she was not going to pay any money to her because [Henderson] didn t do anything. Henderson s mother also testified that on the night of October 8, 2009, Henderson was not out on the porch when she arrived home at 10:20 p.m., but that he was upstairs in his bedroom and he did not leave the house that night. The hearing concluded, and the circuit court found that Henderson had violated the terms and conditions of his probation, revoked Henderson s probation, and reinstated his previously suspended sentence. This appeal followed. II. ANALYSIS The admissibility of evidence is within the discretion of the trial court, and we review its decision only for abuse of discretion. Dickens v. Commonwealth, 52 Va. App. 412, 417, 663 S.E.2d 548, 550 (2008) (citing Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). However, whether appellant s due process right of confrontation was violated is a question of law and is reviewed de novo. Id. (citing Michels v. Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006)). A. Waiver: Rule 5A:18 The Commonwealth contends that Henderson waived his right under Rule 5A:18 to claim a violation of his due process right to confrontation because he did not present this claim to the circuit court. At trial, Henderson s counsel objected to the admittance of the hearsay testimony stating if the hearsay is admitted, that violates his right of confrontation, which he is guaranteed in probation violation hearings. The Commonwealth contends that Henderson s objection was based exclusively on the Sixth Amendment Confrontation Clause since the Commonwealth s -6- response was that, [t]he right of confrontation only attaches at trial. We are post-trial in this case. We are at a revocation proceeding. The basis for the Commonwealth s contention is that Henderson s counsel did not explain his objection after the Commonwealth s response, and thus the circuit court had no reason to know that the right to confrontation objection was based upon the Due Process Clause of the Fourteenth Amendment rather than the Sixth Amendment. Rule 5A:18 provides, in pertinent part, that [n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. 5 Therefore, in order to preserve an issue for appeal, an objection must be timely made and the grounds stated with specificity. Kovalaske v. Commonwealth, 56 Va. App. 224, 229, 692 S.E.2d 641, 645 (2010) (quoting McDuffie v. Commonwealth, 49 Va. App. 170, 177, 638 S.E.2d 139, 142 (2006)). [T]he main purpose of the rule is to ensure the trial court can consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials. Id. at 230, 692 S.E.2d at 645 (quoting Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)). In this case, the issue was sufficiently preserved. The record establishes that the circuit court was aware of Henderson s objection to the admissibility of Ortiz s testimony based upon his right of confrontation as it applied in a probation revocation hearing. See Caprino v. Commonwealth, 53 Va. App. 181, 184, 670 S.E.2d 36, 37-38 (2008) ( Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption 5 Effective July 1, 2010, Rule 5A:18 was revised and now states, [n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling . . . . Because the proceedings below were completed prior to this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect. See Fails v. Va. State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect at the time of the proceedings below). -7- that the law was correctly applied to the facts. (quoting Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977))); Groves v. Commonwealth, 50 Va. App. 57, 61-62, 646 S.E.2d 28, 30 (2007) ( This means the judge is presumed to know the law and apply it correctly in each case. (quoting Crest v. Commonwealth, 40 Va. App. 165, 172 n.3, 578 S.E.2d 88, 91 n.3 (2003))). The record further establishes that the circuit court knew the action that Henderson desired the circuit court to take and his legal basis for it. The circuit court had the opportunity to consider the issue intelligently, and to take any corrective action it deemed necessary. Contrary to the implication inherent in the Commonwealth s argument, Henderson s objection was sufficiently specific for the circuit court to understand the nature of his objection that the evidence should not be admitted and the grounds therefor that it violated his constitutional right to confront that evidence as that right applied in a probation revocation hearing. The Commonwealth s response to Henderson s objection may well suggest that the prosecutor was unaware that a limited due process right of confrontation exists in the context of a probation revocation hearing outside the parameters of Sixth Amendment trial rights. However, any theoretical lack of knowledge of the law on the part of the prosecutor cannot be imputed to the circuit court. Nor does a mistake of law on the part of counsel for the opposing party mandate a response or clarification by counsel for the objecting party as long as the original objection satisfies the requirements of Rule 5A:18 by putting the court on adequate notice of the nature and grounds of the objection. Moreover, contrary to the assertion of the Commonwealth that Henderson should have responded to the prosecutor s argument, the record reflects that he had no opportunity to do so since the circuit court ruled immediately after hearing the Commonwealth s response. Therefore, we reach the merits of the issue on appeal. -8- B. Fourteenth Amendment Due Process Right to Confrontation Henderson alleges that the circuit court violated his Fourteenth Amendment due process right to confrontation when it admitted Ortiz s hearsay testimony. 6 [B]oth the United States Supreme Court and this Court have . . . held that probation revocation hearings are not a stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution. Dickens, 52 Va. App. at 417, 663 S.E.2d at 550 (citing Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991)); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972). 7 However, [p]robation revocation, like parole 6 The Commonwealth argues that Henderson s objection at trial was based solely upon the Sixth Amendment Confrontation Clause and that this objection was properly overruled because the Sixth Amendment does not apply at revocation hearings. The Sixth Amendment right is limited to criminal prosecutions, and a revocation hearing is not a criminal prosecution. Dickens, 52 Va. App. at 417 n.1, 663 S.E.2d at 550 n.1 (citing Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). However, Henderson did not below, and does not now, contend that the circuit court violated his Sixth Amendment right to confrontation. It is only the Commonwealth that has ever made that assertion. Rather, Henderson argued in the circuit court that Ortiz s testimony violated his right of confrontation as it applied in probation violation hearings, which, as discussed more fully below, can only be the more limited right of confrontation conferred by the Due Process Clause of the Fourteenth Amendment. Therefore, there is no merit to the Commonwealth s contention, and we do not address it further. The Commonwealth also alleges that Henderson forfeited his right to confront the witnesses due to witness intimidation. However, there is no evidence in the record that the circuit court made a factual determination that any witnesses refused to testify at the revocation hearing and that such refusal was due to any intimidation by Henderson or his agents; nor is there any evidence in the record before us that would support such an implicit finding. Thus, we likewise do not address this contention on appeal. 7 Because probation revocation hearings are not criminal trials and also because Morrissey predates them, the United State Supreme Court s decision on the contours of the Sixth Amendment right to confrontation in criminal trials, Crawford v. Washington, 541 U.S. 36 (2004), and its progeny are not directly implicated or discussed herein except as they apply to the definition of testimonial hearsay, and to facilitate an understanding of the history of the reliability test applied by some jurisdictions to due process confrontation issues. See Harper v. Commonwealth, 54 Va. App. 21, 27, 29, 675 S.E.2d 841, 844, 845 (2009) ( The Crawford opinion focuses on the necessity of replacing the [Ohio v.] Roberts[, 448 U.S. 56 (1980),] standard with what the Court considers to be the original understanding of what the confrontation -9- revocation, . . . does result in a loss of liberty. Accordingly . . . a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer. Scarpelli, 411 U.S. at 782; see Davis, 12 Va. App. at 84, 402 S.E.2d at 686. In Morrissey, the United States Supreme Court required that the following minimum requirements of due process for a revocation hearing be provided: (a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body such as a traditional parole board, members of which need to be judicial officers or lawyers; and (f) a right is, that is, a procedural guarantee to the accused that he may challenge testimonial evidence against him through the process of cross-examination. The opinion does not contain a similar revision of the type of legal proceedings to which the Confrontation Clause applies. . . . The Crawford opinion does not state that its rule applies at sentencing; it does not refer to sentencing. While that rule may eventually be extended to the sentencing context, that has not happened yet. (quoting United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005) (emphasis in original))); State v. Rose, 171 P.3d 253, 258-59 (Idaho 2007) ( Other jurisdictions that have decided the question appear to be unanimous that Crawford does not change the due process standard for confrontation in a probation revocation hearing. (citing United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006); United States v. Kelley, 446 F.3d 688, 690-92 (7th Cir. 2006); Ash v. Reilly, 431 F.3d 826, 829-30 (D.C. Cir. 2005); United States v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.), cert. denied, 546 U.S. 1080 (2005); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005); United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004); Young v. United States, 863 A.2d 804, 807-08 (D.C. 2004); Reyes v. State, 868 N.E.2d 438, 440 n.1 (Ind. 2007); Commonwealth v. Wilcox, 841 N.E.2d 1240, 1247-48 (Mass. 2006); State v. Divan, 724 N.W.2d 865, 870 (S.D. 2006); State v. Abd-Rahmaan, 111 P.3d 1157, 1160-61 (Wash. 2005); see also People v. Johnson, 18 Cal. Rptr. 3d 230, 232 (Cal. Ct. App. 2004); People v. Turley, 109 P.3d 1025, 1026 (Colo. Ct. App. 2004); Jackson v. State, 931 So.2d 1062[, 1063] (Fla. Dist. Ct. App. 2006); State v. Palmer, 158 P.3d 363, 367 (Kan. App. 2007); State v. Michael, 891 So.2d 109, 114-15 (La. App. 2 Cir. 2005); State v. Gonzalez, 157 P.3d 266, 267 (Or. App. 2007); State v. Pauling, 639 S.E.2d 680, 682 (S.C. App. 2006); Trevino v. State, 218 S.W.3d 234, 238-39 (Tex. App. 2007))). - 10 - written statement by the factfinders as to the evidence relied on and reasons for revoking [probation]. 408 U.S. at 489 (emphasis added). 8 Specifically, the United States Supreme Court has stated that in revocation hearings formal procedures and rules of evidence are not employed, Scarpelli, 411 U.S. at 789, and that the process of revocation hearings should be flexible enough to consider evidence . . . that would not be admissible in an adversary criminal trial, Morrissey, 408 U.S. at 489. Dickens, 52 Va. App. at 421, 663 S.E.2d at 552. Thus, hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court s discretion, id. (citing Morrissey, 408 U.S. at 489), if the circuit court specifically finds good cause for not allowing confrontation, Morrissey, 408 U.S. at 489 (emphasis added). Neither our Supreme Court nor this Court have squarely addressed what constitutes good cause for denial of the due process right of confrontation in the wake of the many changes wrought by Crawford v. Washington, 541 U.S. 36 (2004), and its progeny s construction of the Sixth Amendment Confrontation Clause. 1. Testimonial Evidence & the Due Process Right to Confrontation However, before determining whether good cause existed to excuse denying Henderson the right to confrontation, we must first determine whether any due process right to confrontation applicable in the context of a revocation hearing attaches to the testimony of Ortiz in the first place i.e. whether the evidence sought to be presented constitutes testimonial hearsay, which in the wake of the United States Supreme Court s decisions in Crawford, 541 8 Virginia cases that cite to Morrissey inexplicably omit the language (unless the hearing officer specifically finds good cause for not allowing confrontation). 408 U.S. at 489; see Dickens, 52 Va. App. at 417, 663 S.E.2d at 550; Copeland v. Commonwealth, 14 Va. App. 754, 756, 429 S.E.2d 294, 295 (1992). - 11 - U.S. 36, and in Davis v. Washington, 547 U.S. 813, 823-26 (2006) (holding the Confrontation Clause applies only to testimonial hearsay after stating this holding was suggested in Crawford, even if not explicitly held, and noting [a] limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its core, but its perimeter ), is a predicate to the applicability of the right of confrontation under any circumstances. See also Michigan v. Bryant, 131 S. Ct. 1143, 1153 (2011) ( We therefore limited the Confrontation Clause s reach to testimonial statements . . . . (citing Crawford, 541 U.S. at 68)). As this Court noted in Dickens, the Sixth Amendment right of confrontation is a more rigorous right than the due process requirement in a revocation context because a revocation hearing is not a criminal proceeding and the full panoply of rights due a defendant does not apply to [probation] revocation. 52 Va. App. at 421-22, 663 S.E.2d at 552 (alteration in original) (quoting Morrissey, 408 U.S. at 480). Thus, if the Sixth Amendment confrontation right attaches only to testimonial hearsay, then it follows that the more flexible due process right of confrontation in a probation revocation hearing also attaches only to testimonial hearsay. See id. at 417, 663 S.E.2d at 550 ( [I]n order to understand the Fourteenth Amendment[ s] due process [implicit] right to confrontation, we must begin with a review of the Sixth Amendment[ s explicit] right to confrontation. ). Prior to Crawford, 541 U.S. 36, Ohio v. Roberts, 448 U.S. 56 (1980), controlled the Sixth Amendment Confrontation Clause jurisprudence through the application of an indicia of reliability test. Crawford expressly overruled Roberts. In Roberts, the Supreme Court specifically held when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be - 12 - excluded, at least absent a showing of particularized guarantees of trustworthiness. 448 U.S. at 66. In other words, prior to Crawford, the Confrontation Clause was satisfied if the witness was unavailable and the hearsay statement was sufficiently reliable to satisfy a longstanding exception to the rule barring hearsay. In Lilly v. Virginia, 527 U.S. 116, 125 (1999), the United States Supreme Court clarified what it meant in Roberts when it held that the hearsay statements had to fall within a firmly rooted hearsay exception. The Supreme Court stated, a hearsay exception [is] firmly rooted if, in light of longstanding judicial and legislative experience, it rests [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the substance of the constitutional protection. Id. at 126 (alterations in original) (internal citations omitted). Established practice, in short, must confirm that statements falling within a category of hearsay inherently carry special guarantees of credibility essentially equivalent to, or greater than, those produced by the Constitution s preference for cross-examined trial testimony. Id. (citation omitted). The Supreme Court then concluded, accomplices confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence. Id. at 134. The Supreme Court then overruled the so-called indicia of reliability test set forth in Roberts and Lilly in Crawford v. Washington, 541 U.S. 36 (2004), [and] held that the Confrontation Clause applies to testimonial hearsay and in order for such hearsay to be admissible, the witness must be unavailable and the accused must have had an opportunity for crossexamination. Id. at 68. The Court noted that the Confrontation Clause targeted a specific evil, namely the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. Id. at 49. The Court reasoned that the Confrontation Clause protects against testimonial statements because, it only applies to witnesses against the accused in other words, those who bear testimony. - 13 - Id. at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). Dickens, 52 Va. App. at 418, 663 S.E.2d at 551. The [Supreme] Court stated [w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011) (quoting Crawford, 541 U.S. at 68-69). In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the United States Supreme Court noted [o]ur opinion [in Crawford] described the class of testimonial statements covered by the Confrontation Clause as follows: Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 2531 (quoting Crawford, 541 U.S. at 51-52) (internal quotation marks and citations omitted)); see also Crawford, 281 Va. at 97-98, 704 S.E.2d at 115 (noting the core class of testimonial statements provided by the United States Supreme Court in Crawford, 541 U.S. at 51-52). In Crawford, the Supreme Court provided that [a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. 541 U.S. at 51. The Supreme Court went on to hold that, [s]tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Id. at 52. In sum, even if the Sixth Amendment is not solely - 14 - concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. Id. at 53. However, the Supreme Court did not define what it meant by interrogation in Crawford, but provided that [w]e use the term interrogation in its colloquial, rather than any technical legal, sense, and further that one can imagine various definitions . . . , and we need not select among them in this case. Id. at 53 n.4. The United States Supreme Court was given the opportunity in Davis and Hammon v. Indiana, 546 U.S. 1213 (2006), to consider whether statements made to law enforcement personnel during a 911 call and at a crime scene were testimonial, and specifically addressed what it meant by interrogation when it was required to determine more precisely which police interrogations produce testimony. Davis, 547 U.S. at 822. In making this determination, the United States Supreme Court further clarified what constitutes a testimonial statement: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Crawford, 281 Va. at 98, 704 S.E.2d at 116 (emphasis added) (quoting Davis, 547 U.S. at 822). The United States Supreme Court explained that when it said in Crawford that interrogations by law enforcement officers fall squarely within [the] class of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. Davis, 547 U.S. at 826 (alteration in original) (quoting Crawford, 541 U.S. at 53). Thus, a statement is testimonial if it is given while [t]here was no emergency in progress, and is made - 15 - for the purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution. Crawford, 281 Va. at 98, 704 S.E.2d at 116 (alterations in original) (quoting Davis, 547 U.S. at 822, 829). The United States Supreme Court most recently addressed the Sixth Amendment Confrontation Clause in Bryant, 131 S. Ct. 1143, and further expounded upon how a court determines whether the primary purpose of a police interrogation objectively indicates that it was to enable police assistance to meet an ongoing emergency. Id. at 1150. In considering whether the statements of a dying man made to the police were testimonial, the Supreme Court noted that, the most important instances in which the [Confrontation] Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial. Id. at 1155. However, the Supreme Court went on and explained, [w]hen, as in Davis, the primary purpose of an interrogation is to respond to an ongoing emergency, its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. Id. (emphasis in original). 9 9 In Bryant, the United States Supreme Court noted that there are [m]any other exceptions to the hearsay rules [that] similarly rest on the belief that certain statements are, by their nature, made for a purpose other than use in a prosecution and therefore should not be barred by hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4) (Statements for Purposes of - 16 - In determining whether the primary purpose of an interrogation is to enable police assistance to meet an ongoing emergency, which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties. Id. at 1156 (quoting Davis, 547 U.S. at 822). Unlike in Davis, Hammon, and Bryant, the context in the present case involves a detective apparently questioning witnesses at some point after two alleged robberies had already occurred, and there was no evidence of any immediate threat to either the witnesses or the detective. Id. ( Davis and Hammon arose in the domestic violence context . . . . We now face a new context: a nondomestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim. Thus, we confront for the first time circumstances in which the ongoing emergency Medical Diagnosis or Treatment); 803(6) (Records of Regularly Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and Similar Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against Interest); see also Melendez-Diaz v. Massachusetts, 557 U.S. __, __, 129 S. Ct. 2527, 174 L. Ed. 2d 314, 329 (2009) ( Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because -- having been created for the administration of an entity s affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial ); Giles v. California, 554 U.S. [353], 376, 128 S. Ct. 2678, 171 L. Ed. 2d 488 [(2008)] (noting in the context of domestic violence that [s]tatements to friends and neighbors about abuse and intimidation and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules ); Crawford, 541 U.S.[] at 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( Most of the hearsay exceptions covered statements that by their nature were not testimonial -- for example, business records or statements in furtherance of a conspiracy ). 131 S. Ct. at 1157 n.9. - 17 - discussed in Davis extends beyond an initial victim to a potential threat to the responding police and the public at large. ). As the Supreme Court held in Hammon, [i]t is entirely clear from the circumstances [in this case] that the interrogation[s were] part of an investigation into possibly criminal past conduct, Davis, 547 U.S. at 829, and thus the primary purpose of the interrogations was for the purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution, Crawford, 281 Va. at 98, 704 S.E.2d at 116 (alterations in original) (quoting Davis, 547 U.S. at 822). As stated, the challenged evidence in the present case is a detective s testimony that included, and was based on, information provided to her by witnesses during her investigation of two alleged robberies after they had occurred statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Melendez-Diaz, 129 S. Ct. at 2531 (quoting Crawford, 541 U.S. at 52). With regard to the first alleged crime that took place on October 2, 2009, Ortiz spoke with the victim and his daughter by telephone four days after it had occurred and after the initial officers had done a full preliminary investigation in order to obtain the facts regarding the alleged robbery. On October 8, 2009, Ortiz was called to come down to the police station regarding the second alleged crime that had occurred that day, and she stated that she met with the victim at the police station that day regarding the alleged home invasion robbery. When she spoke with the individuals, it was in the formal setting of a police officer investigating a past crime by seeking facts regarding each alleged robbery for the purpose of apprehending and prosecuting the perpetrator. Bryant, 131 S. Ct. at 1160 ( Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to establish or - 18 - prove past events potentially relevant to later criminal prosecution, [Davis, 547 U.S.] at 822, informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. ). In addition, the information was not provided during an ongoing emergency in order to enable police to meet the emergency and to understand what was happening; but rather, the detective was seeking to determine what had already occurred, and to preserve it for later use in connection with court proceedings. Crawford, 281 Va. at 98, 704 S.E.2d at 116. Ortiz obtained the information from ex parte communication with the witnesses after the alleged robberies had occurred during her investigation of the alleged crimes the principal evil at which the Confrontation Clause was directed. Crawford, 541 U.S. at 50. Further, Ortiz was engaged in the more traditional law enforcement functions of observation and investigation of crime, which is an adversarial setting. Dickens, 52 Va. App. at 419, 663 S.E.2d at 551 (noting that the reports in Michels did not resemble ex parte communication because they were prepared in a non-adversarial setting in which the factors likely to cloud the perception of an official engaged in the more traditional law enforcement functions of observation and investigation of crime are simply not present (quoting Michels, 47 Va. App. at 469-70, 624 S.E.2d at 680)). Lastly, none of the standard rules of hearsay, designed to identify some statements as reliable are applicable to Ortiz s testimony such that the admissibility of [the] statement[s] is the concern of state and federal rules of evidence, [and] not the Confrontation Clause. Bryant, 131 S. Ct. at 1155. Thus, we conclude that Ortiz s testimony was testimonial hearsay, to which the limited Fourteenth Amendment due process right of confrontation applies. 2. Good Cause Exception In turning to the relaxed standards of, and the good cause exception to, the right to confrontation applicable at probation revocation hearings, we note that a defendant is permitted - 19 - 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 (emphasis added). In determining whether to admit testimonial hearsay evidence under the good cause exception, other courts have adopted either of two methods in determining whether evidence admitted at a probation revocation hearing violated the limited due process right to confrontation and cross-examination. In Reyes v. State, 868 N.E.2d 438, 441 (Ind. 2007), the Indiana Supreme Court explained both methods: In one, the trial court employs a balancing test that weighs the probationer s interest in confronting a witness against the interests of the State in not producing the witness. E.g., United States v. Martin, 382 F.3d 840, 844-45 (8th Cir. 2004). In the balancing test, the State is required to show good cause for denying confrontation. See United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005). In another test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness. E.g., United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006). The requirement, found in Morrissey, 408 U.S. at 489, that the trial court find good cause before denying the right to confrontation plays an explicit role when a trial court performs a balancing test; however, this does not mean that Morrissey s good cause requirement is not addressed in the substantial trustworthiness test. . . . [T]he substantial trustworthiness test implicitly incorporates good cause into its calculus. See also People v. Breeding, 772 N.W.2d 810, 485 (Mich. 2009) (quoting Reyes, 868 N.E.2d at 441). While Virginia has not expressly adopted a specific approach, standard, or test to be applied to determine whether good cause exists to deny the right of confrontation, this Court briefly discussed both tests in Dickens, 52 Va. App. at 417, 663 S.E.2d at 550. In Dickens, this Court reviewed the Sixth Amendment right to confrontation in order to understand the Fourteenth Amendment due process right to confrontation, found no need to embrace [the] balancing test since the reliability of official records has long been established, and concluded - 20 - the hearsay evidence an affidavit that was an official record was nontestimonial, fell within the official records hearsay exception, and was reliable. Id. at 419-20, 422-23, 663 S.E.2d at 551-52, 553. While not explicitly stating which test the circuit courts must apply in these situations, this Court, in dicta, implicitly approved the reliability test in Dickens when we noted, the United States Court of Appeals for the Fourth Circuit has held that hearsay evidence is admissible in probation revocation hearings if it is sufficiently reliable. Id. at 423, 663 S.E.2d at 553 (citing United States v. McCallum, 677 F.2d 1024 (4th Cir. 1982)); 10 see also Turner v. Commonwealth, 278 Va. 739, 742, 685 S.E.2d 665, 667 (2009) ( Hearsay evidence has been held admissible in federal probation and parole revocation proceedings where the evidence is demonstrably reliable. In Dickens, [this Court] reached a similar conclusion in the context of the reliability of official records. (citations omitted)). 11 10 In Dickens, the record in question was an affidavit subscribed to and sworn to . . . by the custodian of records for the Sex Offender & Crimes Against Minors Registry of the Virginia Department of State Police averring that appellant had not registered with the registry . . . . 52 Va. App. at 416, 663 S.E.2d at 550. Thus, we note that any implicit approval of the reliability test in Dickens is necessarily dicta since official or business records or the lack thereof, such as those at issue in Dickens, ordinarily do not constitute testimonial hearsay triggering applicability of the right of confrontation in the first instance. 11 Contrary to the dissent s assertion, the Supreme Court of Virginia did not adopt the reliability test in Turner, 278 Va. 739, 685 S.E.2d 665. In Turner, the Virginia Supreme Court addressed the evidentiary admissibility, not the constitutionality under the Due Process Clause, of polygraph examination results in probation revocation hearings, and held that they are inadmissible based on a long line of cases that held, polygraph examinations are so thoroughly unreliable as to be of no proper evidentiary use . . . . The point of these cases is that the lie-detector or polygraph has an aura of authority while being wholly unreliable. Id. at 743, 685 S.E.2d at 667 (emphasis added) (quoting White v. Commonwealth, 41 Va. App. 191, 194, 583 S.E.2d 771, 772 (2003)). While the Virginia Supreme Court noted the demonstrably reliable standard applied in federal proceedings and the similar conclusion reached in Dickens, it disagreed with the Commonwealth s assertion that polygraph test results should be admitted under the relaxed standard in probation proceedings. The Supreme Court specifically stated that, [p]olygraph test results fall far short of the demonstrably reliable hearsay evidence that may be admitted under those relaxed standards, but then proceeded to cite the rule that a court has no discretion to admit clearly inadmissible evidence . . . . Id. (citation omitted). Thus, the focus of the decision was the evidentiary admissibility of polygraph tests based upon - 21 - Although the Supreme Court of the United States has yet to review either due process test applied for finding good cause to deny the right of confrontation, both tests have been found by various of our sister states to pass current constitutional muster. a. Reliability Test 12 Under the reliability test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness, and the substantial trustworthiness test implicitly incorporates good cause into its calculus. Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692; Crawford v. Jackson, 323 F.3d 123, 131 (D.C. Cir. 2003); Hampton v. State, 203 P.3d 179, 184-85 (Okla. Crim. App. 2009). Hearsay evidence has been held admissible in federal probation and parole revocation proceedings where the evidence is demonstrably reliable. Turner, 278 Va. at 742, 685 S.E.2d at 667 (quoting McCallum, 677 F.2d at 1026). In Curtis v. Chester, 626 F.3d 540, 548 (10th Cir. 2010), the court noted the following [e]xamples of evidence possess[ed] recognized indicia of reliability : (1) the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence), (2) statements falling under an established exception to the hearsay rule, (3) statements corroborated by detailed police investigative reports, and their lack of scientific reliability and not on their constitutionality as admissible hearsay for Confrontation Clause purposes. 12 While it may be reasonable to question the continued applicability of a reliability test in light of the United States Supreme Court s overruling of Roberts in Crawford, as previously noted, we observe that the Sixth Amendment jurisprudence is not directly applicable outside of a trial setting, and serves merely as a guide in the application of the limited confrontation right available in probation revocation hearings. In addition, the Supreme Court s recent decision in Bryant arguably resurrects some semblance of a reliability analysis even in Sixth Amendment confrontation cases. See Bryant, 131 S. Ct. at 1174 (Scalia, J., dissenting) ( [T]oday s decision is not only a gross distortion of the facts. It is a gross distortion of the law -- a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned. (emphasis added)). - 22 - (4) statements corroborated by the releasee s own statements. See [Scarpelli], 411 U.S. at 782 n.5; Prellwitz v. Berg, 578 F.2d 190, 193 (7th Cir. 1978) (evidence falling under the business record hearsay exception is reliable); Jackson, 323 F.3d at 130-31 (evidence corroborated by observations in a police investigative report is reliable); McCallum, 677 F.2d at 1026 (evidence corroborated by the releasee s testimony is reliable). See also United States v. McCormick, 54 F.3d 214, 224 (5th Cir. 1995) (concluding that [s]ubstantial evidence enhanced the reliability of the information contained in the . . . report ); United States v. Garcia, 771 F.2d 1369 (9th Cir. 1985) (holding evidence reliable where defendant s in-court statements supported the evidence and he pled guilty on numerous charges before several different judges). In United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009), the court noted, [h]earsay given under oath, [United States v.] Comito, 177 F.3d [1166,] 1171 [(9th Cir. 1999)]; Crawford, 323 F.3d at 129, replete with detail, United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986); Crawford, 323 F.3d at 129, or supported by corroborating evidence, Kelley, 446 F.3d at 692; Martin, 382 F.3d at 846, has been recognized as reliable. Conversely, out-of-court statements reflecting an adversarial relationship with the accused, Comito, 177 F.3d at 1171, or containing multiple layers of hearsay, United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995); Crawford, 323 F.3d at 129, have been recognized as unreliable. In turning to the facts in this case, Ortiz s hearsay testimony regarding both alleged crimes based solely on her conversations with the witnesses does not rise to the level of demonstrable reliability required for admissibility. The hearsay statements used to establish that Henderson violated the conditions of probation meet no firmly rooted exception to the hearsay rule that implies their inherent reliability. In addition, the record does not convey whether Ortiz was speaking purely from her memory in conveying the statements of the witnesses, or whether she was utilizing a police report or her notes thus further diminishing the reliability of her testimony. See Comito, 177 F.3d at 1171 (concluding that [u]nsworn verbal allegations are, in general, the least reliable type of hearsay . . . ); United States v. Pratt, 52 F.3d 671, 677 (7th Cir. - 23 - 1995) (holding the officer s hearsay testimony was reliable because it was consistent with the written statements of the victim in addition to other corroborating information). With regard to the first incident, Ortiz spoke with both the victim and his daughter four days after the incident had occurred, and after both witnesses had spoken with Henderson in person regarding the phone calls. 13 While Henderson spoke with Ortiz and she testified that [h]e tells me basically the same thing, Henderson s corroboration would have been limited to the fact that he had told the victim and his daughter that he lends his phone to a lot of people and he do[esn t] remember who he loaned it to that day. While the rest of the victim s statements to Ortiz were detailed regarding the rest of the alleged robbery and the actual individual committing the robbery, the only portion relating to Henderson was regarding the initial phone call to the victim, and the fact that it came from his cell phone. In turning to the second alleged crime, the victim gave his eyewitness testimony to Ortiz at the police station at some point after the incident occurred, but the record is not clear at what 13 The dissent contends that Henderson s failure to present any evidence to contradict the Commonwealth s evidence further supports the reliability of Ortiz s hearsay testimony regarding the first incident. We disagree with the dissent s apparent view that Henderson had any burden to rebut the Commonwealth s evidence as a prerequisite to receiving due process protection. While formal procedures and rules of evidence are not employed in probation revocation hearings, Scarpelli, 411 U.S. at 789, the Commonwealth was seeking the revocation of Henderson s probation and the execution of his previously suspended sentence, and thus the burden of persuasion of a probation violation remained with the Commonwealth throughout the hearing as it does with any party seeking a judgment or other relief. See Hall v. Hall, 181 Va. 67, 80, 23 S.E.2d 810, 815-16 (1943) ( The burden of proving testamentary capacity is on the propounder of the will and continues upon him throughout any contest on that question. Dickens v. Bonnewell, 160 Va. 194, 168 S.E. 610 [(1933)]; Good v. Dyer, 137 Va. 114, 119 S.E. 277 [(1923)]. This burden of proof is not to be confused with the burden of producing evidence. That burden frequently passes from party to party during the progress of a trial, but the necessity of proving his case always rests upon the plaintiff and never shifts. Riggsby v. Tritton, 143 Va. 903, 129 S.E. 493, 45 A.L.R. 280 [(1925)]. ). Therefore, any suggestion by the dissent that Henderson s failure to rebut the evidence he objected to in the first place somehow shows its constitutional reliability is nothing less than an improper shifting of the burden of persuasion from the Commonwealth to Henderson. - 24 - point it took place. 14 In addition, the information regarding the alleged home invasion robbery was not detailed. Ortiz testified that the victim informed her that three subjects knocked on his front door, entered the unlocked door, and stole some of his personal property. Oritz stated that the victim told her subject number one had a gun and that subject number two was Terrence whom he had met a couple of weeks prior at the probation office. The victim then picked Henderson as one of the individuals out of a series of photos that Ortiz showed him. With regard to the second alleged crime, Henderson s statement to Ortiz only corroborated that he knew one of the co-defendants and that he had been in the vehicle that was involved in the investigation in which some of the stolen property was later discovered by the police. Because the out-of-court statements made to Ortiz were neither inherently reliable by satisfying a firmly rooted exception to the hearsay rule nor were the statements corroborated by other evidence presented at the revocation hearing, the hearsay evidence offered by Ortiz does not rise to the level of being so demonstrably reliable that Henderson s limited right to confrontation in a probation revocation hearing should have been denied. b. Balancing Test Alternatively, under the balancing test, the court weighs the probationer s interest in confronting a witness against the interests of the State in not producing the witness, and the State is required to show good cause for denying confrontation. Reyes, 868 N.E.2d at 441 (citations omitted); see also Lloyd, 566 F.3d at 344-45; United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir. 2004); Martin, 382 F.3d at 846; Comito, 177 F.3d at 1171-72. 14 Ortiz testified that she received a phone call at night at my house to come in to investigate a home invasion robbery and that she came to the station, that was October 8th, met with the victim. She later testified that the home invasion robbery took place around 11:00 at night. - 25 - In assessing the probationer s interest in confronting a witness, although every releasee has the right to confrontation, this right is not static, but is of greater or lesser significance depending on the circumstances. [United States v.] Martin, 984 F.2d [308,] 310-11 [(9th Cir. 1993)]. 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. See id. at 311. As the Martin court emphasized, the more significant particular evidence is to a finding, the more important it is that the releasee be given an opportunity to demonstrate that the proffered evidence does not reflect verified fact. Id. So, too, the more subject to question the accuracy and reliability of the proffered evidence, the greater the releasee s interest in testing it by exercising his right to confrontation. Comito, 177 F.3d at 1171. However, [i]n the balancing process, the defendant s interest in confronting the declarant is entitled to little, if any, weight where the declarant s absence is the result of intimidation by the defendant: Where a defendant has procured the declarant s unavailability by chicanery, . . . by threats, . . . or by actual violence or murder, the defendant is deemed to have waived his sixth amendment rights and, a fortiori, his hearsay objection to the admission of the declarant s statements. Williams, 443 F.3d at 45 (quoting United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984)). In assessing the government s position, the [court] should consider, first, the explanation the government offers of why confrontation is undesirable or impracticable and, second, the reliability of the evidence which the government offers in place of live testimony. Martin, 382 F.3d at 845 (quoting Bell, 785 F.2d at 643). Where the government demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable, it has made a strong showing of good cause. Id. at 845 (quoting Bell, 785 F.2d at 643). Where, on the other hand, . . . the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence - 26 - that bears indicia of reliability, the probationer is entitled to confrontation. Id. at 845 (quoting Bell, 785 F.2d at 643). Henderson s interest in confronting the witnesses was high in that the nature of the statements was detailing the specific criminal wrongdoing of the defendant in crimes that he denied any involvement in. Dickens, 52 Va. App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va. App. 749, 755, 644 S.E.2d 406, 410 (2008)); see also McCormick, 54 F.3d at 222 ( It follows, therefore, that a releasee s interest in cross-examining a laboratory technician regarding a scientific fact is less than would be his interest, for example, in confronting a hearsay declarant regarding what the declarant may have seen. The truth of the former can be verified through methods of science; the truth of the later can best be verified through the rigor of cross-examination, conducted under the circumspect eye of the district court. ). Henderson was charged with failure to obey the law, failure to be of general good behavior, and failure to report an arrest, and thus the hearsay testimony was important to any finding with respect to the alleged violations. Ortiz s testimony was a detailed recitation of the facts given to her by the unsworn verbal allegations of witnesses of two alleged crimes. Comito, 177 F.3d at 1171 ( Unsworn verbal allegations are, in general, the least reliable type of hearsay . . . . ). The only other evidence in the record supporting Ortiz s testimony was Henderson s corroboration of what he told the alleged victim of the first crime and his daughter regarding his phone that he lends his phone to a lot of people, and he could not remember whom he had loaned it to that day. Further, while Henderson s mother testified at trial, her testimony of the facts regarding where Henderson was on the night of the alleged second crime was adverse to both Henderson s and Ortiz s testimony, and there is no additional evidence in the record corroborating Ortiz s testimony regarding the witnesses statements she testified to. Curtis, 626 - 27 - F.3d at 547 ( Because the credibility of the victim s statements are supported by other sources, Curtis has a diminished interest in testing those statements through confrontation. (citing Comito, 177 F.3d at 1171)). Thus, the hearsay testimony was indisputably important to the circuit court s finding of a violation. In turning to any interest on the part of the Commonwealth in denying Henderson an opportunity to confront his accusers, the prosecution did not meet its burden of establishing why it should be excused from producing the adverse witnesses for cross-examination, nor is the evidence demonstrably reliable as previously discussed. There is no evidence in the record that the Commonwealth made any good faith attempt to subpoena the witnesses or otherwise produce them in court. In addition, there is no evidence in the record that the witnesses had moved or that they could not be located. Id. at 547-48 ( In contrast, the government s good cause for not allowing confrontation, Morrissey, 408 U.S. at 489, was that the victim could not be located. ). The first alleged victim merely informed Ortiz that he really didn t want to file charges because people knew his daughter, and they all were in the neighborhood, they live in the same neighborhood, they knew where he lived. This does not rise to the level of overcoming Henderson s interest in confronting the witness, nor is it evidence as to why the Commonwealth could not produce the victim or his daughter at the probation revocation hearing. Ortiz testified that she met with the second alleged victim and his mother who refused to testify because they were scared of retaliation. See Williams, 443 F.3d at 45-47. However, the only evidence of retaliation in the record involved the second victim s mother who informed Ortiz that she had heard gunshots around her house the day before and that it really scared her. Ortiz testified that she had heard one of the other individuals involved in the second crime and his girlfriend refer to a gun in a telephone conversation, but there was no information provided to the circuit court - 28 - establishing any link between Henderson, the gun referred to, and the gunshot heard near the house. In short, the record reflects no reason advanced by the Commonwealth as to what governmental interest was served by not producing the witnesses against Henderson. Thus, Henderson s interest in confronting the witnesses who spoke with Ortiz necessarily outweighed the interest of the Commonwealth in not producing them. In this case, the Commonwealth neither satisfied Henderson s due process right to confront the adverse witnesses against him nor adequately justified its failure to do so. Curtis, 626 F.3d at 548 ( Instead of hindering Curtis s ability to test the victim s statements, the government did as much as it could to facilitate it. ). Thus, the circuit court could not, and therefore did not, balance Henderson s interest in confronting the witnesses against him against any interest the Commonwealth may have had in denying Henderson that right. III. CONCLUSION As discussed above, although the reliability test has been found by some courts to satisfy the minimum requirements of the Due Process Clause, many of those cases pre-date the jurisprudential sea change wrought by Crawford v. Washington and its progeny. Thus, although the circuit court would not necessarily have erred had it applied the reliability test to the testimony of Ortiz, we think that the balancing test ought to be the preferred test utilized in the courts of the Commonwealth since it requires confrontation ab initio unless, and until, the Commonwealth provides a reason sufficient to outweigh an accused s interest in confronting and cross-examining the evidence against him. Put differently, we hold that in non-trial proceedings involving an accused s liberty interest, an approach that requires the Commonwealth to explain and justify its failure to provide confrontation before considering the evidentiary admissibility of any testimonial hearsay is more consistent with the overall purpose of both Morrissey, which - 29 - requires an opportunity to confront testimonial hearsay as the default position for any due process analysis, and the analytical framework found in the post-Roberts cases of Crawford, Davis, Melendez-Diaz, and Bryant. As discussed above, what all of these cases have in common is that they require more than mere considerations of reliability in permitting the use of testimonial hearsay in a trial setting, and thus we think the balancing test is more faithful to current confrontation jurisprudence in the context of providing due process in a non-trial proceeding involving a liberty interest. However, in any event, in this case the circuit court did not apply either test in overruling Henderson s objection to Ortiz s testimony. Thus, the record before us fails to establish good cause for denying Henderson an opportunity to confront and cross-examine the witnesses against him, and therefore the circuit court erred in admitting the testimonial hearsay evidence offered by Ortiz. For these reasons, we reverse the judgment of the circuit court, and remand for a new probation revocation hearing consistent with this opinion if the Commonwealth is so advised. Reversed and remanded. - 30 - Haley, J., dissenting. I respectfully dissent. I. INTRODUCTION The issue here for resolution is whether testimonial hearsay was sufficiently reliable for admission in a probation revocation hearing. 15 Under Morrissey v. Brewer, 408 U.S. 471, 489 (1972), for reasons of due process, a defendant in a probation revocation hearing has the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). Courts have developed two tests to determine whether good cause exists. Virginia has adopted a reliability test that admits hearsay if it is sufficiently reliable. While one might appreciate the majority s analysis of Crawford v. Washington, 541 U.S. 36 (2004), as applicable in the context of criminal trials, that analysis has no bearing on revocation proceedings. I would hold that the hearsay here was properly admissible under existing Virginia jurisprudence. II. TWO STANDARDS FOR DETERMINING WHETHER HEARSAY IS ADMISSIBLE As the majority acknowledges, two standards have evolved for determining the admissibility of hearsay in a revocation hearing: the reliability test and the balancing test. As will be shown later, Virginia has adopted the reliability test. Under the balancing test, a court weighs a defendant s interest in confronting a particular witness against the government s good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement. United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995); see also United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006). 15 I will assume without deciding that the challenged evidence was testimonial hearsay. - 31 - Under the reliability test, a court allows the admission of hearsay evidence without a showing of cause for the declarant s absence if the evidence is sufficiently reliable. Curtis v. Chester, 626 F.3d 540, 545 (10th Cir. 2010). Reliable evidence under this test has also been described as evidence having substantial guarantees of trustworthiness. Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir. 1984). The [Supreme] Court established the good cause showing in Morrissey to limit the substantive use of unreliable evidence at revocation hearings. However, if the proffered evidence itself bears substantial guarantees of trustworthiness, then the need to show good cause vanishes. Id. Another court explained that substantial trustworthiness in hearsay evidence represents good cause for not producing live testimony. Reyes v. State, 868 N.E.2d 438, 441-42 (Ind. 2007). In other words, if reliable hearsay is presented, the good cause requirement is satisfied. Commonwealth v. Negron, 808 N.E.2d 294, 300 (Mass. 2004). Courts have considered a number of factors in determining whether hearsay evidence is reliable. Courts are often concerned with whether other evidence corroborates the hearsay. United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); United States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004); Egerstaffer, 726 F.2d at 1235. Another indication of reliability is that the evidence is quite detailed, providing a fairly full account of the circumstances. Crawford v. Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003); see also United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000); Egerstaffer, 726 F.2d at 1235. Also relevant are admissions from the defendant corroborating the challenged hearsay, the failure of the defendant to present evidence, and internal corroboration within the hearsay. Crawford, 323 F.3d at 130. Statements possess less reliability when they come from an adversarial relationship between the person reporting the statement and the person who made it, United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986), when they represent self-serving statements, Farrish v. Miss. State Parole Bd., 836 F.2d 969, - 32 - 978 (5th Cir. 1988), or when they contain multiple levels of hearsay, United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009). III. THE LAW IN VIRGINIA This Court considered the admissibility of hearsay evidence in the probation revocation context in Dickens v. Commonwealth, 52 Va. App. 412, 663 S.E.2d 548 (2008). There the hearsay evidence consisted of an affidavit from an official that the defendant had not registered as a sex offender between specified dates. Id. at 416, 663 S.E.2d at 550. While the Court upheld the affidavit s admission based on the reliability of official records, it noted that the United States Court of Appeals for the Fourth Circuit has held hearsay evidence is admissible in probation revocation hearings if it is sufficiently reliable. Id. at 423, 663 S.E.2d at 553 (citing United States v. McCallum, 677 F.2d 1024 (4th Cir. 1982)). Our Supreme Court later evaluated the standard for admitting hearsay during probation revocation hearings in Turner v. Commonwealth, 278 Va. 739, 685 S.E.2d 665 (2009). The issue concerned the admissibility of polygraph test results. Id. at 741, 685 S.E.2d at 666. The Court stated that [h]earsay evidence has been held admissible in federal probation and parole revocation proceedings where the evidence is demonstrably reliable. Id. at 742, 685 S.E.2d at 667 (quoting McCallum, 677 F.2d at 1026). The Court then held that [p]olygraph test results fall far short of the demonstrably reliable hearsay evidence that may be admitted during probation revocation hearings. Id. at 743, 685 S.E.2d at 667. In making this holding while quoting the standard from McCallum, the Court plainly adopted the McCallum standard of admissibility. In McCallum, the court applied the reliability standard. The defendant objected to the admission of hearsay evidence in the form of a report from two employees of the center he was sent to upon his release from incarceration. 677 F.2d at 1025. The report detailed numerous - 33 - instances of poor conduct by the defendant, and the defendant admitted most of these. Id. In considering the defendant s right to confront the report s authors, the court noted that other courts had permitted the introduction of demonstrably reliable hearsay evidence in probation revocation proceedings. Id. at 1026. The court then held: The record discloses that the letter from the . . . center was reliable evidence. It was in the nature of an official report to the United States probation officer in Atlanta from the center s federal program coordinator and its counselor. The reliability of the report was also established by McCallum s testimony . . . . Id. McCallum has been cited as applying the reliability standard. Curtis, 626 F.3d at 545. In addition to the principle that a decision of the Supreme Court of Virginia is controlling on this Court, we are further bound by the rule of interpanel accord. That rule mandates that the decision of one panel becomes a predicate for application of the doctrine of stare decisis and cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73, 577 S.E.2d 538, 540 (2003) (internal quotation marks omitted); see also Congdon v. Congdon, 40 Va. App. 255, 265, 578 S.E.2d 833, 838 (2003). It is my position that the majority does not comport with these principles. Rather, the majority holds a trial court does not err by applying the reliability test, but the balancing test ought to be the preferred test. Appellate courts make decisions in part as a guide for the trial courts. Oak Knolls Realty Corp. v. Thomas, 212 Va. 396, 397, 184 S.E.2d 809, 810 (1971); see also Smith v. Commonwealth, 56 Va. App. 351, 367, 693 S.E.2d 765, 773 (2010) (Petty, J., dissenting) ( Fortunately, the Supreme Court . . . expressly defined the term [jurisdiction] so as to guide both the bench and bar . . . . ). - 34 - The majority adopts neither the reliability test nor the balancing test. This holding will result in inconsistent decisions throughout Virginia. A defendant convicted in one jurisdiction that uses the reliability test will be released in another that uses the balancing test if the prosecutor fails to offer a reason for denying confrontation, even though both cases may involve the same evidence. In declining to adopt either test, the majority offers little direction to counsel or the trial court. IV. NON-APPLICABILITY OF CRAWFORD The majority finds the balancing test preferred in part because it is more consistent with the . . . analytical framework found in Crawford. However, as the majority previously acknowledged, [o]ther jurisdictions that have decided the question appear to be unanimous that Crawford does not change the due process standard for confrontation in a probation revocation hearing. 16 State v. Rose, 171 P.3d 253, 258 (Idaho 2007) (citing numerous cases). Crawford says nothing about whether, or when, confrontation may be denied. The minimum due process requirements announced by the Court in Morrissey are still good law. Id. at 259. In short, the 16 In spite of the unambiguous nature of case law on this topic, the majority laments the inapplicability of Crawford and tries to make it have application as a theme. In footnote seven, the majority correctly acknowledges that Crawford does not apply. Soon afterward, however, the majority notes that Virginia courts have not squarely addressed what constitutes good cause for denial of the due process right of confrontation in the wake of the many changes wrought by Crawford. The majority s earlier footnote would seem to make clear there were no such changes in this context. In footnote twelve, the majority questions why Crawford does not apply while also acknowledging this to be the case, stating it may be reasonable to question the continued applicability of a reliability test in light of . . . Crawford . . . [but] we observe that . . . [Crawford] is not directly applicable outside of a trial setting and serves merely as a guide. For reasons discussed above, Crawford is not even a guide. In the conclusion section, Crawford for the first time becomes for this case a jurisprudential sea change. The majority suddenly finds the balancing test persuasive in part because of the analytical framework found in the post-Roberts cases of Crawford, Davis, Melendez-Diaz, and Bryant. Although a conclusion section serves merely as a summary of prior analysis, the majority makes law in its conclusion that was never analyzed. While the majority obviously wants Crawford to apply, this is simply not the case, and the majority should not attempt to conceal its application of it. - 35 - current confrontation jurisprudence in the context of providing due process in a non-trial proceeding involving a liberty interest (to use the majority s language) is that Crawford does not apply. 17 Contrary to the majority s assertions, Crawford is neither a guide nor a jurisprudential sea change. Nothing in Crawford, which reviewed a criminal trial, purported to alter the standards set by Morrissey . . . or otherwise suggested that the Confrontation Clause principle enunciated in Crawford is applicable to probation revocation proceedings. United States v. Aspinall, 389 F.3d 332, 343 (2d Cir. 2004). There is no basis in Crawford or elsewhere to extend the Sixth Amendment right of confrontation to supervised release proceedings. United States v. Hall, 419 F.3d 980, 985-86 (9th Cir. 2005). In Curtis, the court considered in the revocation context both the applicability of Crawford and whether to apply the reliability test or the balancing test. Regarding the Crawford challenge, the court simply held that case did not apply, noting [a]ll the circuit courts that have expressly considered this issue agree. 626 F.3d at 544. The court then considered whether to apply the reliability or balancing test. Although the court ultimately found it unnecessary to decide which test to use since the disputed testimony was admissible under either, it notably in 17 In the sentencing context, the Fourth Circuit recently wrote: Recent Confrontation Clause decisions do not require us to reconsider this settled distinction between trial evidence and sentencing evidence in the hearsay context. In a line of cases beginning with Crawford . . . the Supreme Court has held that the Confrontation Clause generally bars the use of testimonial hearsay at trial unless the declarant is not available to testify and the defendant had a prior opportunity to cross-examine him. But nothing in these cases states that the confrontation right applies at sentencing; indeed, they suggest precisely the opposite. United States v. Powell, No. 09-4012, __ F.3d __, 2011 U.S. App. LEXIS 9698, at *9 (4th Cir. May 12, 2011) (citations omitted). - 36 - its analysis of both tests did not mention Crawford. Id. at 545-46. That was because Crawford simply did not apply. Id. at 544. Likewise, in Reyes, the court in considering whether to apply the reliability or balancing test stated: Because probation revocation hearings are not criminal trials, the United States Supreme Court s decision on the Sixth Amendment right to confrontation in criminal trials is not implicated or discussed here. 868 N.E.2d at 440 n.1. The court went on to adopt the reliability test without further mention of Crawford. Crawford may be said to have limited application to probation revocation proceedings. Since the due process right to confrontation is more limited than the Sixth Amendment right and Crawford says the Sixth Amendment right applies only to testimonial hearsay, then the due process right must also only apply to testimonial hearsay. Dickens, 52 Va. App. at 418, 663 S.E.2d at 551. However, Crawford did not alter the due process test for denying confrontation, whether that is the reliability or balancing test. Case law on the subject is unanimous. Thus, I find it difficult to fathom how Crawford may serve as a guide or have the enormous importance the majority attaches to it. Crawford simply does not apply here. V. OTHER COURTS APPLICATION OF RELIABILITY STANDARD Before proceeding to analyze the facts of this case under the reliability standard, it is useful to consider how other courts have applied the reliability standard under similar facts. In Crawford, 323 F.3d at 124, the court affirmed a parole revocation based solely on a police investigative report. A woman s complaint led to Crawford s arrest for aggravated assault. Id. At a parole revocation hearing, a single police report of the incident (also relating drug use by Crawford) was admitted and parole was revoked based on it. Id. at 124-25. On appeal, Crawford raised similar arguments as in this case, challenging the exclusive reliance on the police investigative report . . . inasmuch as it is unsworn, prepared months after relevant - 37 - events, and apparently consisted not of the author s personal observations or conversations with the complainant but instead was a summary of an affidavit prepared by another police officer. Id. at 127. Crawford also noted that the assault charge was never prosecuted and his arrest record was expunged. Id. at 127-28. In spite of the minimal amount of evidence and that Crawford was never prosecuted, the court found the police report sufficiently reliable to revoke parole. Enunciating the reliability standard, the court stated that hearsay evidence could be relied upon where it possessed sufficient indicia of reliability under the circumstances at hand to protect the prisoner s due process rights. Id. at 129. First, the court noted the report was quite detailed, an indicia of reliability. Id. at 130. Second, the court found important that Crawford did not dispute a large portion of the relevant facts. Id. Third, the court stated the report contained internal corroboration by including information from sources other than the complainant. Id. A responding officer observed evidence inconsistent with Crawford s story and Crawford s far-fetched explanation gave reasonable cause for the Board to doubt his denial of culpability. Id. Fourth, Crawford failed to present any evidence contesting his guilt. Id. Finally, claimed multiple levels of hearsay were not significant under the facts of the case. Id. at 130-31. Another case demonstrating application of the reliability standard is United States v. Kelley, 446 F.3d 688 (7th Cir. 2006). There an officer responded to a scene for a report about a person with a gun. Id. at 689. The victims told the officer Kelley had punched them and displayed a rifle he retrieved from the trunk of his car. Id. at 690. The officer observed that one of the victims had a broken tooth. Id. Later, the officer searched Kelley s vehicle and discovered a rifle. Id. Although the officer lacked personal knowledge of the incident related by the victims, he testified about their account at a revocation hearing and the court found Kelley in - 38 - violation of his supervised release. Id. On appeal, Kelley argued the trial court erred in admitting the victims hearsay statements. Id. at 692. Applying the reliability standard, the court affirmed, holding the victims hearsay bore substantial indicia of reliability since [t]he physical evidence and the officer s personal observations and investigation corroborated the [victims ] accusations. Id. VI. APPLICATION OF RELIABILITY STANDARD IN THIS CASE I believe the hearsay testimony of Detective Ortiz concerning the two incidents was sufficiently reliable for admission. Each incident will be discussed in turn. Attempted Robbery Incident The first way this incident possesses reliability is that it contains a detailed account given to Detective Ortiz. Lloyd, 566 F.3d at 345; Crawford, 323 F.3d at 130; Egerstaffer, 726 F.2d at 1235. Ortiz spoke to both the victim and his daughter. The victim related how he received a phone call from an unfamiliar number. The caller pretended to be from the sheriff s office and requested the victim to go to the office to sign documents about a family member. When the victim did not immediately exit, the caller phoned him again. Upon leaving, a man approached the victim and asked for a cigarette. The man then attempted to take a bag from the victim, but was unsuccessful as the victim resisted. The victim reported the incident to the police. He subsequently received more calls purporting to be from the sheriff s office. When his daughter requested to see the number, she realized it was the phone number for Henderson. The victim and his daughter spoke with Henderson, who told them he lends his phone to a lot of people and he did not remember who he loaned it to that day. Second, Henderson s story corroborated what the victim and his daughter reported. Crawford, 323 F.3d at 130; McCallum, 677 F.2d at 1026. Detective Ortiz spoke with Henderson about this incident, and Henderson related basically the same thing as he had told the victim - 39 - and his daughter. During another interview, Henderson stated that his phone was stolen and miraculously it appeared on his porch two days later. While these statements do not corroborate the remainder of the story of the victim and his daughter, [n]ot every detail . . . need be corroborated to establish the reliability. Cf. United States v. Farmer, 567 F.3d 343, 348 (8th Cir. 2009). Third, Henderson s statements gave ample cause to doubt his credibility and believe his culpability. Crawford, 323 F.3d at 130; see also Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004) ( A false or evasive account is a circumstance, similar to flight from a crime scene, that a fact-finder may properly consider as evidence of guilty knowledge. ). Henderson recounted different stories regarding his involvement. He told the victim and Ortiz he had loaned his phone on the day in question, but did not remember who borrowed it. At another time, Henderson told Ortiz someone had stolen his phone, but it incredibly appeared on his porch two days later. The inconsistencies in Henderson s accounts and especially his story about his magically disappearing/reappearing phone provided reasonable cause . . . to doubt his denial of culpability. Crawford, 323 F.3d at 130. Fourth, Henderson failed to present any evidence to contradict the Commonwealth s evidence. Crawford, 323 F.3d at 130 (finding important that despite the obvious incentive to present supporting evidence, [the defendant] did not call any witness or present evidence other than his own testimony to support his version of events ); United States v. Waters, 158 F.3d 933, 941 (6th Cir. 1998) (finding relevant that while the defendant argued his inability to cross-examine a hearsay declarant prevented the defendant from establishing his brother participated in illegal conduct, the defendant presented no evidence suggesting that his brother rather than he initiated contact ); see also United States v. Minnitt, 617 F.3d 327, 334 (5th Cir. - 40 - 2010) (noting in finding reliability that the defendant failed to offer any evidence ). 18 Henderson knew the identities of the victim and his daughter. Crawford, 323 F.3d at 130. He knew of the allegations since Ortiz contacted him. Yet he failed to present any contrary evidence. Rather, Henderson admitted another person could have used his phone to attempt the robbery. Fifth, it is notable that Ortiz spoke with the victim and his daughter soon after the incident. In fact, the victim and his daughter had already reported the incident to police officers. Their quick report supports reliability. Cf. Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 (1967). Finally, the victim and his daughter would be subject to criminal liability if they made a false report to the police. Code § 18.2-461. This increases their reliability. See Beckner v. Commonwealth, 15 Va. App. 533, 535, 425 S.E.2d 530, 532 (1993). The majority s cursory analysis of the factual reliability of this incident diminishes towards exclusion the significance of the facts described above. Moreover, while the majority apparently believes four days between the attempted robbery and the interview with Ortiz represents a long period of time for the witnesses memories to diminish, that period enhances reliability. See Page v. Clopton, 71 Va. (30 Gratt.) 415, 430 (1878) (holding that after a period of five days the facts were no doubt firmly impressed on his mind and fresh in his recollection ); see also People v. Androvett, 522 N.Y.S.2d 218, 220-21 (N.Y. App. Div. 1987) ( The lineup was conducted within four days of the crime while the witness s memory was still 18 Contrary to the majority s position, I do not contend Henderson had any obligation to present evidence. The burden was on the Commonwealth to prove the reliability of the evidence. A failure to present evidence by Henderson would obviously not suffice to prove reliability. However, case law makes clear such a failure may be considered as a factor tending to bolster reliability. The majority does not address this case law. - 41 - fresh . . . . ); Jackson v. State, 338 So. 2d 231, 232 (Fla. Dist. Ct. App. 1976) ( In view of the fact that the victim herein observed her assailant . . . only nine days later while her memory was still fresh, there is little room for doubt that the identification of the defendant was correct. ). The majority also finds persuasive that a large portion of the victims statements did not concern Henderson. In fact, that the victims limited their statements concerning Henderson tends to enhance their credibility since it shows they did not deliberately structure their statements to implicate Henderson. Cf. Monroy v. City of Los Angeles, 78 Cal. Rptr. 3d 738, 753 (Cal. Ct. App. 2008) (stating that credibility may be enhanced when a defense expert agrees with a plaintiff s expert ). 19 19 Assuming a balancing test is the applicable test, I would likewise hold the challenged testimony of this incident admissible, in accord with the following analysis. Under the balancing test, a court evaluates whether the government s interest in denying confrontation outweighs a defendant s interest in confronting a witness. Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir. 1999). Reliability constitutes a principal factor in this analysis. Lloyd, 566 F.3d at 345. Whether a particular reason is sufficient cause to outweigh the right to confrontation will depend on the strength of the reason in relation to the significance of the releasee s right. United States v. Comito, 177 F.3d 1166, 1172 (9th Cir. 1999). Courts have recognized that a declarant s refusal to testify or threats made against a declarant may be good cause for his absence and justify the admission of hearsay. Lloyd, 566 F.3d at 346. Where it is clear that a witness is unavailable, a court applying the balancing test should simply determine whether the evidence is reliable. Farmer, 567 F.3d at 347. In considering whether the government had shown adequate reasons for not producing the victims of this incident to testify, persuasive are Henderson s admissions corroborating the victims accounts and the fear of retribution for testifying. In Bell, 785 F.2d at 644, the court held admission of police reports proper without the officers presence where the defendant partially corroborated the reports. The police reports detailed an occasion where police arrested Bell for driving while intoxicated, possessing marijuana, and possessing narcotic paraphernalia. Id. at 642. Bell admitted that he was driving on a public highway in the middle of the night without his lights on, and that he had been drinking. Id. at 644. While acknowledging that drinking does not establish intoxication, the court found this corroboration sufficient to justify admitting the police reports without confrontation. Id. The court held that in light of all of these reports and . . . the force of Bell s own concessions, we are morally certain that no substantial purpose would have been served by requiring the officers personal presence. Id. The court continued by stating that the officers would simply have repeated what is in the reports, and none of the contentions made by Bell at his revocation hearing indicates that he would have been able to shake their account in any - 42 - Home Invasion Robbery Regarding the second incident, the victim told Ortiz that several men came to his door at night and knocked on the door, but the victim did not open it because he saw who was there. The men entered the door, which was unlocked, and stole property. The first person to enter possessed a gun in his waistband. The victim identified Henderson as the second person to enter from a photo lineup prepared by Ortiz. substantial way. Id. This was also in spite of the fact that Bell apparently made no admissions concerning his arrest for drugs. Id. In United States v. Jones, 299 F.3d 103 (2d Cir. 2002), the court held it proper to consider fear or risk of retaliation under circumstances relevant to this case. Jones was on supervised release after having been convicted of partaking in a racketeering enterprise. Id. at 105. Through hearsay testimony of an officer, the government presented evidence that Jones had been standing in the doorway of an apartment building while masturbating and making sexual remarks to a fifteen-year-old girl. Id. at 107. The hearsay declarants were the wife of the officer and the young girl. Id. The girl told the officer she was scared from the incident. Id. After Jones was arrested that day, he told the officer it s not over. Okay. I ll get you. Id. In assessing whether the government presented sufficient reasons for denying confrontation, the court found with regard to both eyewitnesses, Jones s history of violent conduct made reprisal against them a possibility. Id. at 113. With respect to this incident, Henderson s admissions alone justified the admission of hearsay. The only part of the hearsay concerning Henderson was the use of his phone to set up the attempted robbery, which he admitted was possible. Although this does not corroborate the remainder of the account, it is a significant piece of evidence. Furthermore, it is unclear how Henderson would impeach the hearsay declarants or how any changes in the victims account would affect Henderson since only his phone was involved. Under Bell, the corroboration provided is adequate. Yet Henderson s corroborating statements did not represent the only basis for admission, for the potential threat to the victims also provided a ground to excuse their presence. Ortiz testified that the victim explained to me he really didn t want to file charges because people knew his daughter, and they all were in the neighborhood, they live in the same neighborhood, they knew where he lived. Obviously, the victim was afraid of retaliation if charges went forward. Like the defendant in Jones, Henderson had a history of violent conduct, i.e., the robbery he committed in 2000 and the home invasion robbery from this case. This represented substantial ground to believe retaliation was possible. Moreover, the victim s daughter was familiar with Henderson. Henderson s involvement was discovered because the daughter recognized his phone number. She knew Henderson by his first name and had him come to her residence to discuss the incident. As such, it is likely she was familiar with Henderson s personality and his propensity for violence. This gives additional weight to the victim s fear. For the reasons already discussed above, the hearsay was clearly reliable. Thus, I would hold that under the balancing test the hearsay was properly admitted. - 43 - Unlike the first incident, the story related here is not detailed. Rather, it is simply a statement that several people knocked on the victim s door, entered without permission, and took property. It is true that a lack of detail diminishes reliability. Furthermore, the victim had several prior larceny convictions and had agreed to plead guilty to grand larceny, which again makes his story less reliable. That said, other evidence presented significantly corroborated the victim s account to make the story reliable. See Rondeau, 430 F.3d at 48; see also United States v. Pratt, 52 F.3d 671, 675 (7th Cir. 1995). First, Henderson and an accomplice made incriminating statements about Henderson s involvement. During a police interview, Henderson admitted he knew the other perpetrators of the robbery. He also admitted he had been in a car with them. A search of the car from a warrant discovered property belonging to the victim. During a monitored telephone conversation, the gunman from the robbery said they got me and they got [Henderson]. Second, other monitored telephone calls plainly established the fact that the robbery occurred. It was learned that some of the victim s property was in the house of Henderson s brother. The gunman instructed the brother to remove the property. The gunman made numerous threats towards the victim. The gunman eventually arranged to return the stolen property to the victim. Although this evidence does not necessarily indicate Henderson s involvement, it proves another fact crucial to the case: the existence of a robbery involving the victim. Third, the monitored telephone conversations provided evidence of a motive. At one point, Henderson stated the victim pulled a knife on Martin and the victim should go to jail. In another conversation, the gunman, immediately after stating they got me and they got [Henderson] for the robbery, asked how did they get Martin. Thus, it may be inferred that - 44 - Martin was the third participant in the robbery, that Henderson shared Martin s unfavorable relationship with the victim, and that Henderson acted upon these sentiments by participating in the robbery. The robbery may have been in retaliation for the victim pulling a knife on Martin, or an act of aggression against someone the perpetrators did not like. Fourth, Henderson provided evasive explanations to Ortiz and the court could make an incriminating inference from this. Crawford, 323 F.3d at 130; Covil, 268 Va. at 696, 604 S.E.2d at 82. Henderson first told Ortiz that the people in the neighborhood simply didn t like him, and that s why his name came up on these two different cases. When Ortiz inquired further about why people did not like him, Henderson stated they just don t. Henderson then mentioned the victim of the home invasion as being one of the people that don t like him just because he had an issue with his brother. The trial court could infer a desire to conceal the truth from Henderson s implausible claim that he was identified as a robber simply because of a general dislike for him in the community. Moreover, by Henderson specifically mentioning the robbery victim as a person who disliked him, the trial court could infer Henderson s involvement in the robbery and a desire to discredit the victim. Fifth, the court could again make an incriminating inference from Henderson s statements regarding his whereabouts the night of the robbery. Henderson told Ortiz that on the night of the incident, he was on his porch talking with others between 8:00 p.m. and midnight. Yet at the hearing, Henderson presented the testimony of his mother, who stated that when she arrived home at 10:20 p.m., Henderson was in his room and did not leave the house that night. Furthermore, when police searched Henderson s house, they were told that Henderson was not there the day of the incident. The court could choose to believe that Henderson and his mother were seeking to conceal his guilt and regard this as additional proof of culpability. - 45 - Sixth, it is notable that the victim reported the robbery soon after it was alleged to have occurred. Ortiz testified she was called at night at my house to come in to investigate a home invasion robbery. This tends to support reliability. Cf. Herron, 208 Va. at 330, 157 S.E.2d at 198. Seventh, the victim would have been subject to criminal liability for filing a false report. Code § 18.2-461. This increases a complainant s reliability by attaching a penalty to misleading police. See Beckner, 15 Va. App. at 535, 425 S.E.2d at 532. Finally, the police obtained an arrest warrant for Henderson because of the robbery. Thus, a judicial officer found the evidence sufficiently reliable to establish probable cause for an arrest. The charge was eventually nolle prosequied because the victim, who was scared of retaliation, refused to testify. Yet again, the majority s terse analysis ignores the many relevant factors described above. The majority focuses only on the evidence favorable to Henderson. Taken together, the evidence revealed a reliable account of a robbery involving Henderson. While the victim s story standing alone would not support a reliability finding, the other evidence, including statements by Henderson, provided a reliable history. 20 20 Once again, assuming a balancing test applies, I would hold the hearsay admissible. Under facts and arguments extremely similar to this incident, the court in Martin held the hearsay was admissible. The court held: In the present case, Martin argues that the government has failed to adequately explain its failure to present Garcia s live testimony. Martin points out that, although Sperando did testify regarding Garcia s refusal to testify against Martin in state court, those state court proceedings occurred more than a year before the revocation hearing and yet, since those state court proceedings, the government had made no attempt to interview or subpoena Garcia. Moreover, Martin contends, there has been no showing that Garcia s alleged reason for refusing to testify (i.e., her fear of retaliation by a crime family ) is well-founded. Consequently, - 46 - I note that for both incidents, most of the hearsay was not multi-layered, but consisted of testimony of Ortiz of events described to her by others. Exceptions may be found, but they are not of significance in light of the other evidence. Martin argues, the government has failed to show that the burden of producing Garcia s live testimony is inordinate. * * * * * * * In the present case, the government did offer an explanation for why the burden of producing Garcia as a live witness would be inordinate. The government presented evidence that Garcia repeatedly stated that she would not testify against Martin and that, when Garcia was subpoenaed to testify against Martin in state court, she appeared in court but refused to testify. The government believed that Garcia likewise would not testify against Martin at his supervised release revocation hearing and that serving her with a subpoena would be futile. The government also demonstrated that the hearsay evidence was reliable. . . . [W]e hold that the government met its burden to show good cause for not producing Garcia as a live witness at the revocation hearing. 382 F.3d at 845-46 (citation omitted). Like Martin, the Commonwealth plainly demonstrated here that the victim refused to testify from fear of retaliation. The following dialogue occurred during the hearing: [Prosecutor]: Would it be fair to say ultimately, Detective Ortiz, that the victim . . . refused to come to court and to testify to the circumstances of the home invasion? [Ortiz]: Yes. I actually personally met with him and his mother, and they were extremely scared of retaliation. My victim s mother . . . she basically said she the day before the court she heard gunshots around the house, and that really scared her. A charge was filed against Henderson in connection with the robbery, but was nolle prosequied when the victim refused to testify. Such fear was justified, for Ortiz testified that in monitored phone conversations the gunman made a lot of threats towards the victim. Based on this evidence, the Commonwealth showed the victim refused to testify from fear of Henderson or his accomplices. Considering that in a previous proceeding the Commonwealth was forced to nolle prosequi a charge because of the victim s refusal to testify, - 47 - Finally, I note that in its conclusion section, the majority holds that in this case the circuit court did not apply either test in overruling Henderson s objection to Ortiz s testimony. Thus, the record before us fails to establish good cause . . . . This could be interpreted to mean a trial court must make an explicit finding of good cause on the record. This would be an issue not raised at trial, in Henderson s opening brief, or in the majority s analysis section. VII. CONCLUSION I conclude that Virginia has adopted a reliability test to determine the admissibility of hearsay in revocation hearings and that application of that test permits the introduction of the testimony here challenged. Accordingly, I would affirm the trial court. there is no reason to believe a different result would occur at a revocation hearing. Id. at 846. As such, the only inquiry was whether the evidence was reliable. Farmer, 567 F.3d at 347. For the reasons detailed above, it was reliable. Contrary to the majority s assertion, it is not a fair reading of the record to suppose the only reason the victim was afraid was from hearing gunshots. This ignores the gunman s threats towards the victim, as well as the likelihood that the victim, who apparently associated with persons like Henderson, was well aware of the possibility of retaliation. The gunshots merely reinforced an already present fear. Moreover, even if the victim s fear was irrational, this is irrelevant since the evidence is clear he refused to testify. Martin, 382 F.3d at 846. - 48 -
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