FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY VALDIVIA, ALFRED YANCY, 

and HOSSIE WELCH, on their own No. 08-15889 behalf and on behalf of the class

of all persons similarly situated, D.C. No.

Plaintiffs-Appellees, 2:94-CV-00671-

LKK-GGH

v.  Eastern District of

ARNOLD SCHWARZENEGGER, California,

Governor of the State of Sacramento

California, and the ORDER STATE OF CALIFORNIA,

Defendants-Appellants. 

Filed September 28, 2010

Before: John T. Noonan, Michael Daly Hawkins, and

Milan D. Smith, Jr., Circuit Judges.

Order;

Dissent by Judge Bea

ORDER

Judge Noonan recommended granting Appellants’ Petition

for Rehearing En Banc. Judge Hawkins recommended denying the Petition. Judge M. Smith voted to deny the Petition.

The full court was advised of the Petition for Rehearing En

Banc and a judge of the court requested a vote on whether to

rehear the case en banc. The en banc call failed to receive a

majority of votes by active judges in favor of en banc consideration. Fed. R. App. P. 35.

16539
The Petition for Rehearing En Banc is DENIED.

BEA, Circuit Judge, dissenting from the denial of rehearing

en banc, joined by O’SCANNLAIN, TALLMAN,

CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges:

The Supreme Court has told us the Constitution’s due process requirements for a proper parole revocation hearing1

 are

less than the requirements for a proper criminal trial. Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972) (stating that the

Supreme Court did not intend to “equate . . . parole revocation

to a criminal prosecution in any sense”). This only makes

sense. A parolee has already been convicted. His freedom is

a matter of grace; it is a privilege extended in an attempt to

rehabilitate him. A criminal defendant, however, is presumed

innocent; his freedom is a matter of right. His conviction

would deprive him of his liberty.

Today, the Ninth Circuit leaves in place a decision that

affords greater due process protection as to evidence offered

against parolees than as to evidence offered against criminal

defendants. Under the majority decision of the panel, nontestimonial hearsay evidence, which would be admissible against

a criminal defendant without any violation of the defendant’s

constitutional evidentiary rights, is inadmissible against a

parolee in a parole revocation hearing unless the State can

show “good cause” to deny the parolee his right to confrontation as stated in United States v. Comito, 177 F.3d 1166 (9th

Cir. 1999).2

1

“Parole, probation, and supervised release revocation hearings are constitutionally indistinguishable and are analyzed in the same manner.”

United States v. Hall, 419 F.3d 980, 985 n.4 (9th Cir. 2005). 

2The balancing test set forth in Comito—our version of “good cause”—

requires hearing officers to “weigh the [parolee’s] interest in his constitutionally guaranteed right to confrontation against the Government’s good

cause for denying it” before admitting hearsay evidence at a parole revocation hearing. Comito, 177 F.3d at 1170. 

16540 VALDIVIA v. SCHWARZENEGGER
An example may help. Sally calls 911 and exclaims, “My

husband Bob just shot me!” At Bob’s trial for attempted murder, the prosecutor calls the 911 dispatcher to testify as to

what Sally said when she called 911. Sally’s hearsay statement is admissible; it is nontestimonial, so the Confrontation

Clause of the Sixth Amendment does not bar its admission.

See Davis v. Washington, 547 U.S. 813, 827-28 (2006) (holding that statements made by a domestic abuse victim to a 911

operator are nontestimonial when made during an ongoing

emergency). Further, Sally’s hearsay statement is an excited

utterance, so it is admissible under Federal Rule of Evidence

803(2). 

But what if Bob were on parole when Sally called 911 and

the State simply wanted to revoke his parole? According to

the panel’s majority decision, Sally’s hearsay statement is not

admissible unless the State can show what constitutes “good

cause” in our circuit to deny Bob his right to confront Sally.

This result is odd in theory and still more odd in practice.

I thus respectfully dissent from the denial of rehearing en

banc.

I

The Due Process Clauses of the Fifth and Fourteenth

Amendments provide minimum procedures the States must

provide during parole revocation proceedings. Morrissey, 408

U.S. at 487-89. These minimum procedures are meant to “assure that the finding of a parole violation will be based on verified facts.” Id. at 484. One of the minimum requirements of

due process in a parole revocation hearing is “the right [of the

parolee] to confront and cross-examine adverse witnesses.”

Id. at 489.3

3The Morrissey Court went on to state that due process does not require

confrontation if “the hearing officer specifically finds good cause.” 408

U.S. at 489. Read in context, the requirement that the parolee must have

VALDIVIA v. SCHWARZENEGGER 16541
To determine “whether the admission of hearsay evidence

violates [a parolee’s] right to confrontation in a particular

[parole revocation] case, the court must weigh the [parolee’s]

interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it.”

Comito, 177 F.3d at 1170. The weight of the parolee’s interest

in his due process right to confrontation depends on two factors: (1) “the importance of the hearsay evidence to the

court’s ultimate finding,” and (2) “the nature of the facts to be

proven by the hearsay evidence.” Id. at 1171. On the other

side of the balancing test, to determine whether good cause

exists, a court must look to “both the difficulty and expense

of procuring witnesses and the traditional indicia of reliability

borne by the evidence.” Hall, 419 F.3d at 988 (internal quotation marks omitted).

Later, in Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court altered the way in which the right to confrontation is defined under the Sixth Amendment. The Confrontation Clause of the Sixth Amendment provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const.

amend VI. The Crawford Court held that the admission of testimonial out-of-court statements against a criminal defendant

violates the defendant’s rights under the Confrontation Clause

of the Sixth Amendment unless the declarant is unavailable

and the defendant had a prior opportunity to cross-examine

the declarant. 541 U.S. at 68. No Comito or other type of balancing test is applied.

However, the Confrontation Clause does not apply to the

admission of nontestimonial hearsay. United States v. Sine,

an opportunity to confront witnesses unless the hearing officer finds good

cause is applicable only if the parolee would otherwise be entitled to confront those witnesses. We must now read Morrissey in light of Crawford

v. Washington, 541 U.S. 36 (2004), which redefined the scope of the confrontation right in the constitutional context. 

16542 VALDIVIA v. SCHWARZENEGGER
493 F.3d 1021, 1035 n.11 (9th Cir. 2007) (citing Whorton v.

Bockting, 549 U.S. 406, 420 (2007) (stating in dicta that,

“[u]nder Crawford, . . . the Confrontation Clause has no application to [nontestimonial] statements and therefore permits

their admission even if they lack indicia of reliability”)). Most

hearsay exceptions cover statements that are, by their nature,

not testimonial. Crawford, 541 U.S. at 56. 

Examples of nontestimonial hearsay include: statements

made to a 911 dispatcher during an ongoing emergency,

Davis, 547 U.S. at 828; public records, such as records of

conviction, United States v. Weiland, 420 F.3d 1062, 1077

(9th Cir. 2005); immigration judges’ memoranda of oral decision, United States v. Ballesteros-Selinger, 454 F.3d 973, 975

(9th Cir. 2006); warrants of deportation and birth certificates,

United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th

Cir. 2005); and applications for permanent resident status,

United States v. Marguet-Pillado, 560 F.3d 1078, 1085 (9th

Cir. 2009). Further, “[b]usiness and public records are generally admissible absent confrontation . . . 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.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-40 (2009).

A criminal defendant’s right to confrontation derives from

the Confrontation Clause of the Sixth Amendment, but a

state-convicted parolee’s right to confrontation derives from

the Due Process Clause of the Fourteenth Amendment. The

due process right to confrontation under the Fourteenth

Amendment provides less protection to parolees during parole

revocation hearings than the Confrontation Clause of the

Sixth Amendment provides to defendants during criminal trials. See Morrissey, 408 U.S. at 488-89. 

That does not mean the term “confrontation” should be

interpreted differently in the Sixth Amendment context than

it is in the Fourteenth Amendment context. Rather, the differVALDIVIA v. SCHWARZENEGGER 16543
ence between the right to confrontation guaranteed by the

Sixth Amendment and the right to confrontation guaranteed

by the Fourteenth Amendment is whether the right is absolute.

The Confrontation Clause of the Sixth Amendment provides

an absolute bar to the admission of testimonial out-of-court

statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

Crawford, 541 U.S. at 68. The due process right to confrontation under the Fourteenth Amendment, on the other hand, is

not absolute. It is subject to the hearing officer’s discretion

where there are specific good reasons for requiring confrontation. Morrissey, 408 U.S. at 489.

The purpose of the right to confrontation—whether under

the Sixth or Fourteenth Amendment—“is to ensure reliability

of evidence.” Crawford, 541 U.S. at 61; see Morrissey, 408

U.S. at 484 (explaining that the goal of the due process right

to confrontation is “to assure that the finding of a parole violation will be based on verified facts”). Further, the right to

confrontation—whether under the Sixth or Fourteenth

Amendment—“applies to ‘witnesses’ against the accused.”

Crawford, 541 U.S. at 51; see Morrissey, 408 U.S. at 489

(explaining that the due process right to confrontation applies

to “adverse witnesses”). Because of the these similarities,

“confrontation” should be interpreted to have the same meaning under the Fourteenth Amendment as it does under the

Sixth Amendment.

Now criminal defendants have an argument that Valdivia

requires us to extend Comito balancing to criminal trials—not

as a right of confrontation, but as a due process right. That is,

if the Due Process Clause of the Fourteenth Amendment guarantees to parolees the right to have a hearing officer conduct

the Comito balancing test before he admits nontestimonial

evidence, surely a criminal defendant, who has an even

greater liberty interest, has a due process right to have a trial

judge conduct the Comito balancing test before he admits the

same evidence.

16544 VALDIVIA v. SCHWARZENEGGER
Crawford’s elucidation of the limits of the Confrontation

Clause should apply with equal force to the due process right

to confrontation under the Fourteenth Amendment. Where

Crawford permits the admission of evidence in a criminal

trial, the evidence should necessarily be admissible in a parole

revocation hearing. The panel’s holding otherwise allows a

hearing officer to exclude from a parole revocation hearing,

based on the State’s failure to show good cause for failure to

present the witness in court, the same evidence that would be

admissible without a showing of good cause to prove guilt at

a criminal trial. Where Crawford would bar the admission of

evidence in a criminal trial the evidence would not be admissible in a parole revocation hearing unless the government

could show specific good reasons for not requiring confrontation.4

 Morrissey, 408 U.S. at 484, 489. Because this interpretation of the right to confrontation provides no greater

protection to parolees in parole revocation hearings than to

defendants in criminal trials, it is consistent with Morrissey.

This result is also consistent with Comito. The Comito balancing test applies only where the admission of hearsay evidence would implicate a parolee’s right to confrontation.

Comito, 177 F.3d at 1170. Because not every hearsay statement is testimonial, not every such statement implicates a

parolee’s right to confrontation. Thus, a hearing officer should

not apply the Comito balancing test to all out-of-court statements proffered by the government to prove the matter

asserted during a parole revocation hearing, as the panel opinion would require. Rather, a hearing officer should apply the

Comito balancing test only when the government proffers testimonial out-of-court statements. If the government proffers

nontestimonial out-of-court statements, the right to confronta4Although the Comito balancing test would apply to all testimonial

hearsay evidence, evidence that falls within “long-standing exceptions to

the hearsay rule,” and would be admissible in a criminal trial, “should satisfy the lesser standard of due process accorded [a parolee] in a revocation

proceeding.” Hall, 419 F.3d at 987. 

VALDIVIA v. SCHWARZENEGGER 16545
tion is not implicated and the Comito balancing test is inapplicable.5

 Confrontation is required only as to testimonial

evidence; it is not required as to nontestimonial evidence.

II

The panel majority opinion also creates a direct conflict

with the Second Circuit. The Second Circuit has developed a

two-part test to analyze the admissibility of hearsay evidence

in a parole revocation hearing. United States v. Williams, 443

F.3d 35, 45 (2d Cir. 2006). Where the government proffers

hearsay that would be inadmissible under an “established

exception to the hearsay rule,” the district court must “determine whether good cause exists to deny the defendant the

opportunity to confront the adverse witness.” Id. To make that

determination, the court must balance “the defendant’s interest in confronting the declarant” against “the government’s

reasons for not producing the witness and the reliability of the

proffered hearsay.” Id. This balancing test is similar to the

Comito balancing test. However, where the government proffers hearsay that would be admissible in a criminal proceeding under an “established exception to the hearsay rule,” no

such “good-cause analysis” is required. Id. The Valdivia

majority opinion directly conflicts with this rule.

The Second Circuit’s approach to the admission of hearsay

statements in parole revocation hearings is more consistent

with Morrissey than is the panel’s majority approach, because

the Second Circuit does not require hearing officers to apply

a Comito-like balancing test to all hearsay evidence the government proffers in a parole revocation hearing. Thus, in most

instances, the Second Circuit does not provide parolees with

greater confrontation rights to bar proffered evidence than

5Of course, Comito did not draw a distinction between testimonial and

nontestimonial hearsay. But that is attributable to the fact Comito was

decided before Crawford redefined what confrontation means in the constitutional context. 

16546 VALDIVIA v. SCHWARZENEGGER
criminal defendants have. Criminal defendants have no right

to confrontation or to bar admission of evidence when the

government proffers nontestimonial hearsay, admissible under

a hearsay exception, during a criminal trial. Similarly, under

the Second Circuit’s approach, parolees have no right to confrontation or to bar admission of evidence where the government proffers evidence that falls within an “established

exception” or “firmly rooted” exception to the hearsay rule.

These two inquiries—whether a statement is testimonial and

whether a statement falls within an established hearsay

exception—often overlap, because most established hearsay

exceptions cover statements that are nontestimonial in nature.

See Crawford, 541 U.S. at 56.

However, in some instances, the Second Circuit’s approach

may provide parolees with greater confrontation rights than

criminal defendants. For example, a statement that is nontestimonial and does not fall within a firmly rooted hearsay exception (e.g., the residual exception, Federal Rule of Evidence

807) would not raise any Confrontation Clause issues at a

criminal trial, but the Second Circuit would still require the

government to show good cause for not allowing confrontation with respect to the same statement in a parole revocation

hearing. Therefore, even though the Second Circuit’s

approach is more consistent with Morrissey than the panel’s

approach, there are still situations in which the Second Circuit

does create a barrier to the admission of hearsay statements in

a parole revocation hearing that is higher than the constitutional barrier to the admission of the same statements in a

criminal trial.

A second problem with the Second Circuit’s approach is

that it requires hearing officers to determine which state hearsay exceptions are “firmly rooted” or “established.” Although

courts were required to make such determinations before

Crawford, the only question courts are now required to

answer with respect to the Confrontation Clause of the Sixth

VALDIVIA v. SCHWARZENEGGER 16547
Amendment is whether the hearsay was testimonial. See

Crawford, 541 U.S. at 60, 68-69. 

Rather than breathe life into the practice of determining

which state hearsay exceptions are “firmly rooted” or “established,” Crawford’s test—whether the hearsay evidence is testimonial or not—should be used to determine whether a

hearing officer in a parole revocation hearing must apply the

Comito balancing test. Hearing officers can rely on postCrawford cases to determine whether hearsay evidence is testimonial.

III

The panel opinion conflicts with Morrissey by providing

parolees with greater rights than the Constitution affords

criminal defendants. Neither the Constitution nor common

sense requires this result. For these reasons, I respectfully dissent from the order denying rehearing en banc.

16548 VALDIVIA v. SCHWARZENEGGER