The Constitution requires a knowing and intelligent waiver of the right to confront witnesses in order for a plea to be valid.  The same basic law and rules apply here as in the context of the rights to trial by jury and right to remain silent.[329]  The defendant’s right to be present at critical stages is closely akin to the right of confrontation.[330]

 

[329] See § § 6.35-6.36, supra; Boykin v. Alabama, 395 U.S. 238 (1969) (valid waiver of fundamental constitutional rights, including right to confrontation, may not be presumed from a silent record); F.R. Crim. P. 11(c)(3), (4).

[330] Campbell v. Rice, 302 F.3d 892 (9th Cir. September 4, 2002) (habeas petitioner’s due process rights violated by exclusion from in-chambers hearing on defense counsel’s potential conflict of interest, and such violation was a structural error which was prejudicial per se).

GROUNDS - CONFRONTATION VIOLATION
     The United States Supreme Court revived the Confrontation Clause, and prohibited "testimonial" use of hearsay in probation revocation hearings. Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354 (2004) (hearsay evidence not permitted at probation revocation hearings); Morrissey v. Brewer, 408 U.S. 471, 489, 33 L.Ed.2d 484, 499, 92 S.Ct. 2593 (1972); Gagnon v. Scarpelli, 411 U.S.  778, 786, 36 L.Ed.2d 656, 664, 93 S.Ct. 1756 (1973) (under the due process clause of the federal Constitution, a defendant at a parole or probation revocation hearing generally has the right "to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) . . . .").   It might be permissible, for example, to suspend confrontation when the witness is from out of state.  It was just this possibility that led the Court in  Gagnon v. Scarpelli to "[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 pp. 782-783, fn. 5)      Absent unusual circumstances, however, Crawford wipes out the now commonplace use of testimonial hearsay at revocation hearings. This should mean the police officer is present at the hearing, not just his report; the probation officer who actually searched your client must answer your questions about where he found the drugs, not the PO’s deskbound supervisor.  Indeed, any witness who has not previously been cross examined will likely have to testify at revocation hearings.  By any measure, and not withstanding any future decisions, these exclusions should have a huge impact on revocation proceedings.
     Of course, Crawford does not exclude all or even most hearsay documents from either trials or revocation hearings.  People v. Maki (1985) 39 Cal.3d 707, and many of Maki’s progeny, will probably survive Crawford.  In Maki, the court affirmed the admission of copies of a hotel receipt bearing the defendant's name and a car rental invoice bearing his signature at a revocation hearing to establish that he had traveled out of state. Documents such as these, which are not made in anticipation of being used in court, are not testimonial.  But it’s less common for the hearing to rest entirely on such documents. 
     This may also mean immigration courts must receive live testimony, and cannot rely on "testimonial" hearsay such as police reports or reports of immigration officers’ observations to sustain conduct-based grounds of deportation or inadmissibility.

Ninth Circuit

POST CON RELIEF - GROUNDS - CONFRONTATION -- CRAWFORD -- RETROACTIVITY
Bockting v. Bayer, __ F.3d __, 2005 WL 406284 (9th Cir. Feb. 22, 2005) (Crawford v. Washington, 541 U.S. 36 (2004) retroactively applies to cases on federal habeas review from state conviction; although a new rule, it is both a "watershed rule" and one "without which the likelihood of an accurate conviction is seriously diminished." [Schriro v. Summerlin, 124 S.Ct. 2519 (2004)]).