Court to evaluate probation rights

Case examines whether defendants at probation hearings have right to cross examine witnesses.
Thursday, December 9, 2004 | 12:00 a.m. CST; updated 7:25 a.m. CDT, Monday, July 14, 2008

JEFFERSON CITY — A Boone County case argued before the Missouri Supreme Court on Wednesday could set new precedent on the rights of defendants in probation hearings.

The case, State ex rel. Paul E. Hoover vs. Ted Boehm, examines whether someone accused of violating probation has the same right to directly cross-examine witnesses as a defendant in a criminal trial.

Boone County Sheriff Ted Boehm is not directly involved in the case, but the sheriff’s department oversees the Boone County jail, where Hoover is currently incarcerated.

Hoover, of Harrisburg, pleaded guilty in March to unlawful use of a weapon and third-degree domestic assault. According to records available on the State Courts Administrator Web site, Boone County Circuit Judge Gary Oxenhandler sentenced Hoover to six months in jail on the domestic-assault conviction. That sentence was suspended and replaced with two years’ probation.

A separate court also issued an “order of protection,” prohibiting Hoover from contacting his estranged wife except under certain circumstances such as marital counseling or retrieving property.

In July, Hoover again appeared before Oxenhandler. His estranged wife, Kelly, had accused him of violating the order of protection, according to briefs filed with the state’s Supreme Court. Paul Hoover acknowledged contacting her, but said their communication did not violate the protection order because the conversations were within the exceptions permitted by the order.

At a hearing to determine whether to revoke probation and return Hoover to jail, a probation officer testified that Kelly Hoover told him about the communication. Oxenhandler ruled on Aug. 31 that the probation officer’s testimony was sufficient to revoke Paul Hoover’s probation, according to

Hoover’s attorney, Columbia lawyer Stephen Wyse, said the officer’s testimony was hearsay and Hoover never had the chance to cross-examine Kelly Hoover directly.

Wyse cited a recent U.S. Supreme Court opinion, Crawford vs. Washington, as basis for his argument. In that case, the federal court ruled that the Sixth Amendment to the U.S. Constitution grants a defendant the right to cross-examine a witness who has provided evidence.

The Sixth Amendment grants the accused the right “to be confronted with the witnesses against him.”

Assistant Missouri Attorney General Stephen Hawke said probationary hearings are not like other criminal court proceedings.

“The probation revocation hearing is not part of the criminal prosecution,” Hawke wrote in his brief to the Missouri Supreme Court. “Thus, the Sixth Amendment right to confrontation is not implicated.”

Supreme Court Judge Laura Denvir Stith seemed unconvinced.

“We seem to be offering a lesser right of confrontation in the probation process than in other criminal or civil courts,” she said.

But Judge Stephen Limbaugh asked Hawke whether due process in a probation hearing might require only the right to cross-examine those witnesses already on the stand, rather than the right to have the accuser herself testify.

At the probation hearing, Hoover did have the opportunity to cross-examine the probation officer who testified.

Former criminal defense attorney and MU professor of law, Rod Uphoff, said the right to confront a witness is central to American criminal procedure.

“The fact-finder is not in a good position to weigh the overall credibility and importance of the testimony without seeing the demeanor of the witness and listening to her under cross-examination,” he said in an e-mail to the Missourian. “That is at the heart of our adversary system, and the reason why we generally don’t put as much faith in the word of someone who is only reporting what another said.”

The Missouri Supreme Court generally takes several weeks after oral arguments to issue a ruling.

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