Due Process Confrontation Balancing in Probation Revocation: State v. Wade

Introduction

The Connecticut Supreme Court’s decision in State of Connecticut v. Jaquan Wade (SC 20983, decided April 22, 2025) clarifies and enforces the requirement that, before admitting out-of-court identifications at a probation revocation hearing, a trial court must conduct the balancing test articulated in State v. Crespo (190 Conn. App. 639 (2019)). The defendant, Jaquan Wade, had challenged the admission of a victim’s photographic identification of him—when the victim was unavailable to testify—on due process grounds. The Appellate Court held that Wade had abandoned his Crespo claim at the hearing; the Supreme Court reversed, ruling that Wade neither expressly nor impliedly relinquished his right to a Crespo balancing, and remanded for a new evidentiary hearing on the home-invasion violation.

Summary of the Judgment

The Supreme Court held:

The defendant properly preserved his claim that the trial court must apply the Crespo balancing test before admitting an unavailable witness’s out-of-court identification.
Neither the defendant nor his counsel abandoned that claim at the hearing by referring to the witness’s unavailability as a “change in circumstance” or by focusing on “reliability.”
Because the trial court admitted the victim’s identification without any Crespo balancing, its finding that Wade violated the “no new criminal offense” condition must be vacated.
The case is remanded for a new probation revocation hearing limited to the home-invasion allegation, at which the court must undertake the Crespo balancing before admitting the identification evidence.
The trial court’s other findings—that Wade failed to submit to substance-abuse evaluation and counseling and left the state without permission—are upheld and will not be relitigated.

Analysis

Precedents Cited

Morrissey v. Brewer, 408 U.S. 471 (1972): Established the due process framework for parole revocation, including the right to confront adverse witnesses unless good cause is shown.
Gagnon v. Scarpelli, 411 U.S. 778 (1973): Extended Morrissey due process safeguards—such as the right to cross-examine—to probation revocation.
State v. Shakir, 130 Conn. App. 458 (2011): Recognized that confrontation rights at probation revocation are not absolute but subject to balancing.
State v. Crespo, 190 Conn. App. 639 (2019): Articulated the balancing test—compare the defendant’s interest in cross-examination with the State’s reasons for non-production and the reliability of the hearsay.

Legal Reasoning

The Supreme Court’s reasoning unfolds in three steps:

Proper Preservation: Wade filed a prehearing motion under Crespo, requesting that if the State declined or failed to produce the victim, the court weigh Wade’s confrontation interest against the State’s reasons for non-production and the evidence’s reliability.
No Abandonment by Counsel: At the hearing, defense counsel repeatedly objected to admitting the videotaped identification and insisted on due process protections. References to a “change in circumstance” (the victim’s invocation of the Fifth Amendment) and to “reliability” addressed the two sides of the Crespo test—they did not signal that counsel was overriding or withdrawing the request for a full Crespo balancing.
Remedy for Failure to Balance: Because the court admitted the identification without any Crespo inquiry, its conclusion that Wade committed a new criminal offense is unsound. Accordingly, the Supreme Court reversed that portion of the revocation and remanded for a new evidentiary hearing on the home-invasion charge, requiring the Crespo balancing first.

Impact

This decision reinforces and amplifies due process protections in Connecticut probation revocation proceedings:

Trial courts must explicitly undertake the Crespo balancing test before admitting hearsay identification or other out-of-court statements from unavailable witnesses.
Defense counsel can preserve the issue by filing a prehearing Crespo motion and by maintaining objections when the evidence is offered—references to changed circumstances or reliability do not waive the broader confrontation-balancing claim.
Failure to conduct the balancing invites reversal and a remand for a new hearing on the affected violation ground.
The decision may influence statutes and court rules governing the form and procedure of probation revocation to ensure that Crespo motions are flagged and resolved in advance of fact-finding.

Complex Concepts Simplified

Probation Revocation Hearing: A proceeding to determine if a probationer violated conditions of release. It is not a criminal trial but must observe fundamental fairness under the Fourteenth Amendment.
Crespo Balancing Test: When an adverse witness is unavailable, the court must weigh:
- Defendant’s interest in confronting and cross-examining that witness;
- State’s reasons for non-production (e.g., invocation of the Fifth Amendment, logistical barriers); and
- Reliability of the proffered hearsay evidence.
Abandonment vs. Waiver: A right is waived when intentionally relinquished; it is abandoned by implied conduct or express assent to forego it. Mere acknowledgment of changed facts or focus on reliability does not constitute abandonment of the underlying right to a Crespo balancing.
Unavailability: A witness is unavailable if they invoke a privilege (e.g., Fifth Amendment) or for other valid reasons; unavailability triggers—but does not eliminate—the need for a balancing under Crespo.

Conclusion

State v. Wade affirms that due process in probation revocation hearings includes a non-absolute but mandatory right to confront adverse witnesses, protected by a Crespo balancing before admitting their out-of-court statements. The Supreme Court’s decision corrects the Appellate Court’s misreading that references to changed circumstances or reliability constitute waiver. Going forward, trial courts in Connecticut must document and resolve Crespo motions in advance of admitting hearsay identification, and defense counsel must continue to assert and preserve these fundamental confrontation rights. This ruling underscores the judiciary’s commitment to fairness, ensuring that probationers do not lose liberty on the basis of untested, unbalanced evidence.