Requiring Concrete Good Cause to Admit Hearsay at Supervised Release Revocation Hearings: Commentary on United States v. Pennycooke

Requiring Concrete Good Cause to Admit Hearsay at Supervised Release Revocation Hearings: Commentary on United States v. Pennycooke

I. Introduction

This commentary analyzes the Third Circuit’s nonprecedential decision in United States v. Steven Pennycooke, No. 24‑3210 (3d Cir. Dec. 19, 2025), which vacated the revocation of a defendant’s supervised release and a resulting 15‑month prison term. The core legal issue was whether the district court properly admitted a hearsay accusation of domestic violence by the defendant’s ex‑girlfriend, Sarah Jones, when she did not testify and the Government made minimal efforts to secure her appearance.

Although labeled “not precedential” under Third Circuit Internal Operating Procedures, the opinion is highly instructive. It reinforces and sharpens the requirements that:

  • Hearsay in supervised release revocation proceedings is presumptively inadmissible;
  • The Government bears the burden to justify its admission, either by showing:
    • such overwhelming reliability that confrontation can be dispensed with, or
    • “good cause” for the witness’s absence that outweighs the releasee’s confrontation interest;
  • District courts must explicitly balance the defendant’s due process right to confront adverse witnesses against the Government’s reasons for not producing them, as required by Rule 32.1 and cases such as United States v. Lloyd.

The decision also sits in the shadow of the Supreme Court’s later ruling in Esteras v. United States, 145 S. Ct. 2031 (2025), which forbids district courts from considering certain sentencing factors when revoking supervised release. While the panel does not reach the Esteras issue, it flags it for future proceedings.

II. Summary of the Opinion

A. Factual Background

Steven Pennycooke had been convicted of being a felon in possession of a firearm and, after serving a 51‑month prison term, began a period of supervised release in July 2024. Several months later, on October 23, 2024, his ex‑girlfriend, Sarah Jones, contacted his probation officer, Katie Quinlan, alleging that Pennycooke had assaulted her on multiple occasions in the past.

That same day, Jones:

  • Appeared at the probation office;
  • Gave probation officer Karen Myslinski a three‑page, handwritten, signed statement describing alleged abuse;
  • Sent three undated photographs to Quinlan, showing injuries to her face.

Based on these allegations, the probation office charged Pennycooke with an “A” violation of supervised release—the most serious category—along with several “C” violations (positive drug test, missed drug tests, missed treatment). A warrant issued, and he was arrested.

At the November 21, 2024 revocation hearing:

  • The Government’s only witness was probation officer Quinlan.
  • Jones did not appear.
  • Quinlan testified about:
    • What Jones had told probation;
    • The content of Jones’s handwritten statement; and
    • The photographs she received.
  • Defense counsel repeatedly objected to this evidence as inadmissible hearsay.
  • Pennycooke testified, denying any assaults, describing the relationship as “toxic” and “chaotic,” and claiming the facial injuries were from a late‑September car accident.
  • He admitted the “C” violations regarding drugs and treatment.

The district court overruled the hearsay objections and admitted Jones’s written statement, finding it had “sufficient indicia of reliability” based on:

  • Quinlan’s prior knowledge that Jones was, in fact, his girlfriend;
  • The fact that the statement was handwritten, signed, and accompanied by Jones’s identification;
  • The accompanying photographs, which the court viewed as “consistent with” her account (though “perhaps with other things” as well).

The court also noted:

  • Corroboration in Pennycooke’s admission to drug use;
  • The fact that Jones gave the statement to a probation officer;
  • Past instances in which the court had found Pennycooke not credible.

On Jones’s absence, the court could not “say with certainty” why she was not there, but speculated that it might be because it was a school day and she had a young child. In a written memorandum, the court further commented that Jones’s “fear of Defendant was evident in the words written in her statement,” though it did not explicitly find that fear prevented her from testifying.

Calling the case a “close call,” the court found an “A” violation, revoked supervised release, and sentenced Pennycooke to 15 months’ imprisonment—a downward variance from the 18–24 month guideline range. He appealed.

B. Holding and Disposition

The Third Circuit:

  • Held that the district court abused its discretion by admitting Jones’s hearsay statement without a proper finding of “good cause” and without adequately balancing that against Pennycooke’s confrontation interest;
  • Concluded that this error was not harmless beyond a reasonable doubt, since Jones’s statement was central to the “A” violation finding and the revocation sentence;
  • Vacated the judgment revoking supervised release and remanded for further proceedings.

On a secondary issue, the court noted that after briefing the Supreme Court in Esteras v. United States held that district courts may not consider 18 U.S.C. § 3553(a)(2)(A) factors when revoking supervised release. Because the panel vacated on the hearsay/confrontation issue, it did not decide whether the district court’s reliance on those factors amounted to plain error under Esteras.

III. Detailed Analysis

A. Doctrinal Background: Confrontation in Revocation Hearings

1. Due Process Rather Than Full Sixth Amendment Rights

Revocation of parole, probation, or supervised release is not a new criminal prosecution. Instead, it is part of the continuing consequences of an original criminal judgment. For that reason:

  • The full range of Sixth Amendment trial rights (including the formal Confrontation Clause standards) does not apply in the same way; but
  • Revocation still implicates the defendant’s liberty, so the Due Process Clause imposes minimum procedural safeguards.

In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court held that parolees are entitled to “minimum requirements of due process” before their parole is revoked, including “the right to confront and cross‑examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 488–89. That framework now governs probation and supervised release revocations as well.

2. Rule 32.1(b)(2)(C): Express Codification

Federal Rule of Criminal Procedure 32.1(b)(2)(C) codifies this principle by guaranteeing a supervised releasee:

“an opportunity to . . . question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.”

The italicized proviso—“unless the court determines that the interest of justice does not require the witness to appear”—is the key opening for hearsay. It embeds the idea that sometimes, for “good cause,” live testimony can be forgone and hearsay admitted, but only after a court makes a concrete, reasoned determination.

3. The Lloyd Balancing Framework in the Third Circuit

In United States v. Lloyd, 566 F.3d 341 (3d Cir. 2009), the Third Circuit developed a structured approach to this question. Under Lloyd:

  • The defendant has a due process interest in confronting adverse witnesses at a revocation hearing.
  • The Government may seek to use hearsay instead of live testimony, but must show either:
    • That the hearsay is so reliable that the defendant’s interest in confrontation is “overwhelmed,” or
    • That there is “good cause” for not producing the witness, and that good cause, when balanced against the defendant’s interest, justifies admitting the hearsay.
  • Courts must explicitly balance:
    • the defendant’s confrontation interest (which depends on the importance of the evidence and the nature of the facts it addresses), and
    • the Government’s reasons for not bringing the witness (unavailability, threats, refusal to testify, safety concerns, etc.).

Reliability is a “principal consideration” in gauging the defendant’s need for cross‑examination. As Lloyd explains, extreme reliability can, in rare cases, obviate the need for a separate “good cause” showing. More commonly, though, “some indicia” of reliability is not enough on its own; the court still must assess good cause and perform the balancing.

B. How the Third Circuit Applied That Framework in Pennycooke

1. Reliability of Jones’s Hearsay Statement

The panel proceeds on the premise that the district court correctly found that Jones’s statement had “some indicia” of reliability:

  • It was detailed and written, not a vague oral remark. The Third Circuit in Lloyd had seen a lack of detail as undermining reliability.
  • The statement was handwritten, signed, and accompanied by her identification.
  • She supplied photographs that appeared consistent with the kind of injuries she described.

But the panel also carefully catalogs factors undermining reliability:

  • Jones is an ex‑girlfriend, a status that can suggest motive to fabricate or embellish, especially in the context of a “toxic” relationship.
  • Her statement was unsworn—not given under oath—and consisted of allegations that only she and the defendant would know about, making it “among the least reliable forms of hearsay” (echoing the Ninth Circuit’s observation in United States v. Comito, 177 F.3d 1166 (9th Cir. 1999)).
  • The photos were undated and, as the district court itself recognized, were “consistent with—perhaps with other things” besides domestic abuse. That is, they did not answer the “who, when, and how” behind the injuries (an observation drawn from the Eighth Circuit’s analysis in United States v. Coleman, 7 F.4th 740 (8th Cir. 2021)).

The Third Circuit does not overturn the district court’s judgment that the statement had some reliability. Instead, it holds that the district court did not go further to make the key, necessary finding: that the hearsay was so overwhelmingly reliable that no good‑cause showing was needed. Since the court had not done that, the Lloyd framework required the district court to:

  1. Assess whether the Government had shown “good cause” for Jones’s absence; and
  2. Balance that good cause against the strength of Pennycooke’s confrontation interest.

2. The Government’s Showing of Good Cause

Here is where the opinion is most critical. The panel finds “virtually no evidence of record” to support a finding that the Government established good cause for Jones’s non‑appearance.

The opinion clarifies what can amount to good cause:

  • A witness’s refusal to testify;
  • Threats made against the witness;
  • Inability to locate the witness, after diligent efforts.

But the record in Pennycooke showed:

  • The Government knew Jones’s address and contact information.
  • There was no evidence that:
    • She had been threatened,
    • She had refused to testify, or
    • She had become unlocatable.
  • Probation officer Quinlan made only one phone call to Jones six days before the hearing to tell her the time and place and encourage her to contact the prosecutor.
  • No subpoena was ever sought or attempted.

The district court instead reasoned (and the Government on appeal argued) that:

  • Rainy weather;
  • Childcare responsibilities (it was a school day and she had a young child); and
  • The distance between her home and the courthouse

might have contributed to her absence. The panel rejects these rationales as:

  • Speculative — the district court made no findings supported by record evidence on these points; and
  • Legally insufficient — even if established, such routine burdens ordinarily do not outweigh a defendant’s confrontation rights.

The Third Circuit emphasizes that:

  • “Cost and inconvenience, without more, generally do not yield good cause outweighing the confrontation right,” citing Lloyd.
  • Simply making a few calls or sending messages, or even a lone attempt to serve a subpoena, is often inadequate, as the Fourth and Eighth Circuits have stressed (citing United States v. Wheeler and United States v. Sutton as described).
  • Here, the Government did less than that—it never sought a subpoena at all.

The Government also suggested that Jones might have been afraid to testify. The panel finds this argument unsupported:

  • The only evidence is the district court’s inference that her “fear” was “evident in the words” of her written statement.
  • But only days before the hearing, Jones had apparently been willing to testify, which undercuts the fear hypothesis (as the panel notes, echoing the Eighth Circuit’s reasoning in United States v. Timmons).
  • Quinlan, the person who actually spoke to Jones, never testified that Jones expressed any fear of appearing in court, paralleling the concern in Comito that unsupported claims about witness fear should not be credited.

In short, the Third Circuit finds no adequate evidentiary basis for concluding that the Government had good cause for relying on hearsay instead of producing Jones.

3. The Overlooked Confrontation Interest of the Defendant

The other side of the Lloyd equation—the defendant’s confrontation interest—was also mishandled. The panel explains that this interest depends on:

  • The importance of the hearsay to the ultimate decision; and
  • The nature of the facts the hearsay is offered to prove.

Applied here:

  • Jones’s statement was crucial. It was the primary, and essentially sole, evidence supporting the “A” violation, the most serious charge. Without it, the Government would be left with only the admitted “C” violations (drug‑related noncompliance), which might well have resulted in a far less severe sanction.
  • The statement described personal observations of past events between Jones and the defendant—precisely the kind of testimony where cross‑examination is most valuable, to probe memory, perception, bias, and motive to fabricate.

Despite this, the district court undertook “minimal discussion” of Pennycooke’s confrontation interest. It focused almost entirely on whether the statement was reliable and on speculative reasons for Jones’s absence. The Third Circuit, relying on the Fourth Circuit’s reasoning in Wheeler, notes that it is not enough to analyze only the Government’s side; the court must explicitly consider and balance the defendant’s interest in confronting the witness.

This failure to meaningfully consider and weigh the defendant’s interest was, in the panel’s view, legal error and an abuse of discretion.

4. Harmless Error Analysis

Even when hearsay is wrongly admitted, the Third Circuit will not reverse if the error is harmless beyond a reasonable doubt. Citing United States v. Barksdale, 98 F.4th 86 (3d Cir. 2024), the panel reiterates that standard.

Here, the panel cannot say the error was harmless:

  • Jones’s statement was at the heart of the “A” violation finding.
  • The district court itself called the case a “close call,” suggesting that if Jones’s statement had been excluded or if she had been cross‑examined, the outcome might have differed.
  • Without the “A” violation, Pennycooke would have stood before the court only on relatively minor “C” violations (drug use and missed testing/treatment) that typically draw shorter custodial terms or alternative sanctions.

Given the centrality of the hearsay to the revocation and sentence, the panel finds the error not harmless and therefore vacates the judgment.

C. Precedents Cited and Their Role in the Decision

1. Morrissey v. Brewer, 408 U.S. 471 (1972)

Morrissey is the foundational Supreme Court case on the due process requirements for revoking conditional liberty (parole, probation, supervised release). The Court held that minimal due process includes:

  • Written notice of claimed violations;
  • Disclosure of evidence against the defendant;
  • Opportunity to be heard and present evidence;
  • “The right to confront and cross‑examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)”;
  • A neutral decisionmaker and a written statement of reasons.

The Third Circuit in Pennycooke relies on Morrissey as the constitutional anchor for a confrontation right in revocation proceedings. Rule 32.1 and Lloyd operationalize that right in federal practice, but Morrissey is what makes the right a matter of due process.

2. United States v. Lloyd, 566 F.3d 341 (3d Cir. 2009)

Lloyd provides the Third Circuit’s controlling framework (applied here) for admitting hearsay at revocation hearings. It:

  • Recalls that the defendant’s right to confrontation is not absolute but is subject to a balancing of interests;
  • Identifies reliability as a central consideration: a highly reliable hearsay statement may justify limiting confrontation even without strong good‑cause;
  • Requires courts to explicitly balance:
    • the defendant’s interest in confronting the declarant, and
    • the Government’s reasons (good cause) for not producing the witness.

In Pennycooke, Lloyd serves both as the source of the balancing test and as a yardstick for rejecting the Government’s reliance on mere cost, inconvenience, and thin efforts at contact as “good cause.”

3. United States v. Rose, 152 F.4th 153 (3d Cir. 2025)

The panel cites Rose (a later Third Circuit case) primarily for two points:

  • Reaffirming the Lloyd principle that even when hearsay has some indicia of reliability, courts generally still must consider whether the Government has shown sufficient “good cause” to outweigh the confrontation interest.
  • Providing a contrasting example of “diligent” Government efforts to locate a victim witness, which underscores how minimal the Government’s efforts were in Pennycooke.

The opinion uses Rose to illustrate what proper diligence and balancing look like, making clear by contrast that neither occurred here.

4. United States v. Barksdale, 98 F.4th 86 (3d Cir. 2024)

Barksdale is cited for the harmless error standard: even when hearsay is admitted improperly, reversal is not required if the Government can show the error was harmless beyond a reasonable doubt.

The Third Circuit in Pennycooke applies this standard and concludes the error was not harmless, given how central Jones’s statement was to the “A” violation and the court’s earlier characterization of the case as a close call.

5. Out‑of‑Circuit Decisions on Hearsay Reliability and Diligence

The panel also draws on several out‑of‑circuit cases to support its analysis:

  • United States v. Timmons, 950 F.3d 1047 (8th Cir. 2020):
    • Notes that oral, unsworn statements are among the least reliable forms of hearsay.
    • Observes that a witness’s willingness to speak to the Government about the case undercuts unsubstantiated claims that the witness is “afraid” to appear in court.
  • United States v. Coleman, 7 F.4th 740 (8th Cir. 2021):
    • Holds that even when photographs visually match a hearsay description of injuries, they may not answer the critical “who, when, how” questions, limiting their corroborative value.
  • United States v. Comito, 177 F.3d 1166 (9th Cir. 1999):
    • Describes unsworn verbal statements about private interactions known only to accuser and defendant as among the least reliable forms of hearsay.
    • Warns against crediting unsupported arguments that a witness was afraid to testify, particularly where the officer who interacted with the witness offers no such testimony.
  • United States v. Wheeler (4th Cir. 2025 as described):
    • Emphasizes that hearsay is presumptively inadmissible at revocation hearings and the Government bears the burden to prove admissibility.
    • Criticizes minimal efforts such as a few calls, texts, and a single attempt at subpoena service as inadequate diligence.
    • Stresses that courts must weigh both sides of the confrontation‑versus‑good‑cause balance.
  • United States v. Sutton, 916 F.3d 1134 (8th Cir. 2019):
    • Quoted by the Fourth Circuit in Wheeler; underscores that even an unsuccessful subpoena attempt can be insufficient to establish good cause.
  • United States v. Mosley, 759 F.3d 664 (7th Cir. 2014):
    • Cited as a comparison point in harmless error analysis, reinforcing how central hearsay evidence can require reversal when wrongly admitted.

6. United States v. Young, 634 F.3d 233 (3d Cir. 2011) and Esteras v. United States, 145 S. Ct. 2031 (2025)

The panel also touches on a separate, sentencing‑related issue:

  • Under Young, Third Circuit precedent previously allowed district courts to consider the factors in 18 U.S.C. § 3553(a)(2)(A) when revoking supervised release. Those factors relate to:
    • “the seriousness of the offense,”
    • “promot[ing] respect for the law,” and
    • “provid[ing] just punishment.”
  • After briefing in Pennycooke, the Supreme Court in Esteras held that district courts may not consider § 3553(a)(2)(A) in the revocation context.
  • Pennycooke argued that the district court erred by considering those factors; however, he had not objected on that ground at the hearing, so the issue would be reviewed only for plain error under Esteras.

Because the panel vacates the revocation on the hearsay issue, it does not decide whether the sentencing court’s consideration of § 3553(a)(2)(A) amounted to plain error. Still, the reference to Esteras is an important signal to district courts and practitioners that, on remand and in future cases, Esteras now governs revocation sentencing.

D. The Court’s Legal Reasoning: Step‑by‑Step

The Third Circuit’s reasoning can be distilled into a series of analytical steps:

  1. Standard of Review and Burden.
    • Admission of hearsay under Rule 32.1 is reviewed for abuse of discretion.
    • Hearsay is presumptively inadmissible at revocation hearings; the Government bears the burden to demonstrate admissibility (borrowing from the Fourth Circuit’s articulation in Wheeler).
  2. Some Reliability, But Not Enough to Skip Good Cause.
    • The district court found “sufficient indicia of reliability” in Jones’s statement (detail, written format, photos, ID).
    • However, it did not find that the statement was so overwhelmingly reliable as to eliminate the need for a good‑cause showing under Lloyd.
    • Therefore, the district court was required to:
      • Assess whether the Government established good cause for Jones’s absence; and
      • Balance that against Pennycooke’s confrontation interest.
  3. No Adequate Proof of Good Cause.
    • Jones’s contact information was known.
    • No evidence of threats, refusal, or unavailability.
    • Only minimal effort—one call six days prior and no subpoena attempt.
    • Speculation about weather, childcare, or distance was unsupported by evidence and, in any event, insufficient as a matter of law to constitute good cause.
    • Claims that Jones was afraid to testify were not supported by:
      • Any testimony from Quinlan about expressed fear, or
      • The timing of events (Jones appeared willing to cooperate shortly before the hearing).
  4. Failure to Weigh Defendant’s Confrontation Interest.
    • Jones’s statement was critical to the “A” violation decision.
    • The allegations were based on personal, contested interactions—precisely where cross‑examination has high value.
    • Yet the court gave “minimal discussion” to the strength of the defendant’s interest in confronting her, contrary to Lloyd and the reasoning in Wheeler and Comito.
    • This imbalance—focusing on speculative reasons for absence while not squarely addressing the defendant’s interest—constituted legal error.
  5. Abuse of Discretion and Non‑Harmlessness.
    • Because the district court did not properly apply the good‑cause and balancing requirements, its admission of the hearsay did not reflect a “sound exercise of discretion.”
    • Given the centrality of the hearsay, the court’s own “close call” characterization, and the limited nature of the remaining violations, the Government could not carry its burden to show the error was harmless beyond a reasonable doubt.
    • Result: vacatur and remand.

E. Likely Impact and Practical Implications

Although formally “not precedential,” Pennycooke offers a clear, structured application of Lloyd, Morrissey, and Rule 32.1, and it is likely to be very persuasive within the Third Circuit and beyond, especially in cases involving domestic‑violence‑type allegations in revocation proceedings.

1. For District Courts

The decision sends a strong signal that district judges must:

  • Recognize that hearsay at revocation hearings is not automatically admissible simply because the Federal Rules of Evidence do not formally apply;
  • Make specific, evidence‑based findings regarding:
    • The reliability of any hearsay;
    • Whether the hearsay is so reliable that good cause need not be shown (a high bar); and
    • Whether the Government has demonstrated good cause for not producing the witness (with more than speculation or inconvenience).
  • Explicitly articulate the Lloyd balance on the record—i.e., weigh:
    • The defendant’s confrontation interest (especially where the hearsay is central and disputable), against
    • The Government’s reasons for not calling the witness.

Failure to do this risks appellate reversal, particularly where:

  • The hearsay is pivotal to the most serious violation;
  • The alleged events are private and contested; and
  • Government efforts to obtain live testimony are thin.

2. For Prosecutors and Probation Offices

Pennycooke carries important operational lessons:

  • Do not assume that a complainant’s written, unsworn account plus photographs will suffice for an “A” violation if the complainant is not presented for cross‑examination.
  • Document concrete efforts to secure the witness:
    • Prompt contact well in advance of the hearing;
    • Use of subpoenas;
    • Follow‑up attempts; and
    • Any specific threats, refusals, or practical impossibilities that prevent appearance.
  • If a witness is afraid, gather and present actual evidence of that fear (statements, behavior, etc.), rather than relying on inference from the tone of a written complaint.
  • Understand that generic hardships (childcare, weather, moderate travel) will usually not constitute “good cause” for depriving a defendant of confrontation, especially when liberty is at stake.

3. For Defense Counsel

Defense counsel can draw several strategic points from Pennycooke:

  • Raise hearsay objections vigorously in revocation hearings, and explicitly invoke:
    • Rule 32.1(b)(2)(C);
    • The Lloyd balancing test; and
    • The presumption against hearsay admissibility articulated in cases like Wheeler.
  • Develop the record on:
    • The contested nature of the hearsay allegations;
    • Possible motive to fabricate or bias of the declarant; and
    • The centrality of the hearsay to any major violation.
  • Probe and challenge the Government’s claimed efforts to secure the witness (or lack thereof), emphasizing any failure to subpoena or to meaningfully follow up.
  • Preserve objections not only on hearsay and confrontation grounds but also (post‑Esteras) on improper consideration of § 3553(a)(2)(A) factors in revocation sentencing.

4. Domestic‑Violence‑Style Allegations in Revocation Proceedings

Many revocation cases, like Pennycooke, involve allegations of intimate partner violence or other relational misconduct where:

  • The victim may be ambivalent about cooperating;
  • Events occur in private, with no third‑party witnesses; and
  • There may be history of conflict, jealousy, or reciprocal accusations.

Pennycooke underscores that, even in these sensitive contexts, courts cannot short‑circuit due process by relying exclusively on unsworn, untested accusations without:

  • Concrete evidence of good cause for not producing the accuser, and
  • A careful, explicit confrontation balancing analysis.

This will likely increase pressure on the Government either to:

  • Secure complainants’ live testimony (with appropriate support and protection), or
  • Accept that only lesser, corroborated violations may be provable when complainants do not appear and good cause is not demonstrable.

5. Interaction with Esteras on Remand

On remand, if the Government again seeks revocation and the district court again imposes a term of imprisonment, the court will be constrained by the Supreme Court’s decision in Esteras v. United States, which holds that:

  • District courts cannot consider § 3553(a)(2)(A) factors—seriousness of the offense, respect for the law, and just punishment—when deciding the term of imprisonment upon revocation of supervised release.

Although the panel does not resolve whether the earlier sentence was plainly erroneous under Esteras, the guidance is clear: any future revocation sentence in this case, and in all others, must be structured around the remaining § 3553(a) factors applicable in the revocation context (such as deterrence, protection of the public, and rehabilitation), not retributive or “just punishment” rationales.

IV. Complex Concepts Simplified

1. Supervised Release and Violations (“A” vs. “C”)

  • Supervised release is a period of community supervision that follows a federal prison sentence. If the defendant violates conditions, the court may revoke supervised release and impose further imprisonment.
  • Violations are often graded:
    • “A” violations are the most serious (typically involving new criminal conduct, such as violent offenses).
    • “C” violations are less serious, often technical or drug‑related noncompliance (positive drug tests, missed treatment, etc.).

2. Hearsay

Hearsay is an out‑of‑court statement offered in court to prove the truth of what it asserts (e.g., “He hit me” written in a note, offered to prove he did indeed hit the writer). In criminal trials, hearsay is usually excluded unless it falls within a specific exception.

At revocation hearings, the formal rules of evidence do not strictly apply, but due process still imposes limits: hearsay is presumptively inadmissible unless its admission is justified by reliability and good cause.

3. Confrontation Interest and Good Cause

  • Confrontation interest: The defendant’s interest in seeing the adverse witness in person, cross‑examining them, and allowing the judge to observe their demeanor and credibility.
  • Good cause: A sufficient reason to excuse the witness from testifying live (such as legitimate fear, severe illness, unavailability after diligent efforts, or serious safety risks).

Courts must weigh:

  • How important the hearsay is to the case, and how much cross‑examination would likely help test its truth, against
  • The strength and necessity of the Government’s reasons for not bringing the witness in.

4. Indicia of Reliability

“Indicia of reliability” are features suggesting a hearsay statement is likely to be trustworthy, such as:

  • Specific, detailed descriptions rather than vague accusations;
  • Contemporaneous or near‑contemporaneous recording;
  • Being under oath;
  • Statement against the declarant’s own interest;
  • Consistency with other objective evidence (e.g., time‑stamped photos, medical records);
  • Lack of obvious motive to lie.

But reliability is a spectrum. At the very high end, the statement might be so trustworthy that it diminishes the need for cross‑examination. In most cases, however, some reliability is not enough; the court must still demand and weigh a good‑cause showing.

5. Harmless Error Beyond a Reasonable Doubt

Even when a court makes a legal error (like improperly admitting hearsay), an appellate court will uphold the outcome if it is convinced “beyond a reasonable doubt” that the error did not affect the result. This is a stringent standard. If the problematic evidence was central, or the case was close, the error is usually not harmless.

6. Plain Error and Esteras

Plain error review applies when a party did not object in the trial court. To show plain error, the appellant must typically demonstrate:

  1. There was an error;
  2. The error was “plain” (clear under current law);
  3. The error affected substantial rights (likely affected the outcome); and
  4. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

In Pennycooke, this standard would apply to any claim that the district court violated Esteras by relying on § 3553(a)(2)(A) factors during revocation sentencing, but the panel did not reach that issue.

V. Conclusion

United States v. Pennycooke reinforces the constitutional and procedural protections that apply in supervised release revocation hearings. It makes three central points:

  1. Hearsay is presumptively inadmissible at revocation hearings, and the Government bears the burden to justify any exception.
  2. District courts must not only assess hearsay reliability but also, unless the hearsay is extraordinarily reliable, require the Government to show concrete, evidence‑based “good cause” for the witness’s absence and then explicitly balance that against the defendant’s confrontation interest.
  3. Where hearsay is pivotal to a serious violation and the Government’s diligence and good‑cause showing are minimal, admitting the hearsay without proper balancing is an abuse of discretion that will not be deemed harmless.

Although nonprecedential, Pennycooke synthesizes and applies the governing law— Morrissey, Rule 32.1, Lloyd, and related circuit authority—in a way that is likely to guide future practice. It warns against casual assumptions that complainants’ unsworn accusations plus photos can substitute for live testimony without strong justification, and it underscores that revocation of conditional liberty still requires meaningful procedural safeguards.

In combination with the Supreme Court’s recent decision in Esteras limiting which sentencing factors may be considered upon revocation, Pennycooke marks a continued tightening of procedural and substantive controls on the revocation of supervised release, ensuring that the deprivation of liberty is grounded in reliable evidence and carefully reasoned judicial decision‑making.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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