Wisconsin DOC v. Hayes: Supreme Court Clarifies “Good-Cause” Threshold for Hearsay at Probation-Revocation Hearings

Introduction

In State ex rel. Wisconsin Department of Corrections, Division of Community Corrections v. Brian Hayes, 2025 WI 35, the Wisconsin Supreme Court resolved a long-simmering tension between the evidentiary needs of probation agents and the confrontation rights of probationers. The Court affirmed the Court of Appeals’ decision upholding Division of Hearings and Appeals (DHA) Administrator Brian Hayes’ refusal to revoke Keyo Sellers’ probation after the Administrator excluded critical hearsay testimony from the victim of an alleged sexual assault. The decision:

Re-articulates the “good-cause” requirement for admitting hearsay in revocation proceedings, adopting a two-track test drawn from Morrissey/Gagnon and State ex rel. Simpson v. Schwarz.
Rejects any implied “re-traumatization” per se rule as automatically establishing good cause.
Confirms the deferential certiorari standard: reviewing courts ask only whether the administrator’s decision is supported by substantial evidence and made according to law, not whether a contrary result was also possible.

Summary of the Judgment

The Department of Corrections (DOC) attempted to revoke Sellers’ probation for five alleged violations, four of which rested heavily on statements from the alleged victim, K.A.B. An Administrative Law Judge (ALJ) found the violations proven, but on administrative appeal the DHA Administrator reversed, holding that:

K.A.B.’s statements were hearsay.
No “good cause” had been shown to deny Sellers his due-process right to confront her.
Without those statements, the remaining non-hearsay evidence was insufficient to prove the charged violations.

The circuit court reinstated revocation, but the Court of Appeals—and now the Supreme Court—reversed, concluding the Administrator’s decision was both lawful and supported by substantial evidence.

Detailed Analysis

1. Precedents Cited and Their Influence

Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973)
These foundational cases establish that probationers and parolees possess a protected liberty interest and must receive minimum due-process protections, including the right to confront adverse witnesses unless “good cause” exists for denial.
State ex rel. Simpson v. Schwarz, 2002 WI App 7
Supplies Wisconsin’s two-pronged structure for good cause: (a) a balancing test weighing the probationer’s need for confrontation against the State’s interests, including reliability of the evidence and difficulties obtaining live testimony; or (b) independent admissibility of the statement under a recognized hearsay exception.
State v. Sorenson, 143 Wis.2d 226 (1988)
Articulated factors for admitting child-victim hearsay under the residual exception—later referenced in Simpson and invoked (unsuccessfully) by DOC here.
Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, and State ex rel. Nudo Holdings LLC v. Bd. of Review, 2022 WI 17
Provide the modern formulation of the certiorari four-part review framework, which the majority applies to uphold the Administrator.

2. The Court’s Legal Reasoning

The majority structures its analysis around the four certiorari questions:

Jurisdiction. No dispute.
According to law (due process & evidence).
• The Administrator correctly applied Simpson. The State offered only a generalized “re-traumatization” rationale for not calling the victim; the record lacked concrete evidence of hardship, cost, or unavailability.
• The residual hearsay exception was inapplicable because DOC did not demonstrate “comparable circumstantial guarantees of trustworthiness.”
Arbitrary, oppressive, or unreasonable? The majority collapses this prong into prong two, concluding the Administrator’s evidentiary rulings were reasoned, not arbitrary.
Substantial evidence. Even disregarding K.A.B.’s statements, the remaining DNA match and video identification could reasonably be viewed as insufficient to meet the State’s burden. Thus a court may not substitute its judgment for the Administrator’s under the deferential standard.

3. Practical and Doctrinal Impact

Tightening of Hearsay Admission: Agencies must now create a record explaining in detail why live testimony is impractical or unreliable, or demonstrate a firmly-rooted hearsay exception. Generic references to victim trauma will rarely suffice.
Certification of the “Two-Track” Good-Cause Test: Although Simpson had articulated the dual pathways, this is the first Wisconsin Supreme Court endorsement, elevating the standard to binding statewide precedent.
Operational Guidance for Agents: Probation agents will need to issue subpoenas or, at minimum, file affidavits documenting efforts to secure witness attendance and the specific impediments encountered.
Case-building Strategy: Prosecutors and agents may pivot toward obtaining corroborating physical or digital evidence that can stand on its own if witness testimony is excluded.
Judicial Review Clarity: The ruling re-emphasises that appellate courts cannot re-weigh evidence but only verify substantial support and legal conformity—an important reminder for counsel crafting arguments on certiorari review.

Complex Concepts Simplified

Certiorari Review: A limited judicial check on administrative decisions. Courts ask four narrow questions and do not retry the case.
Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Generally inadmissible unless an exception applies.
Residual Hearsay Exception: A “safety-valve” allowing novel hearsay, but only when it has strong guarantees of trustworthiness and when no other exception fits. Intended for “exceptional” cases.
Good Cause to Deny Confrontation: Under Morrissey/Gagnon and now reaffirmed here, the State must show either (1) a balancing of interests favoring hearsay or (2) that the hearsay would be admissible anyway.
Substantial Evidence: Enough relevant and credible evidence that reasonable minds could reach the same decision, even if others might disagree.

Conclusion

Wisconsin DOC v. Hayes does not revolutionize confrontation doctrine, but it solidifies critical guardrails: probationers retain a meaningful right to confront their accusers, and agencies bear the burden of showing concrete, record-based reasons when they wish to rely on hearsay instead of live testimony. By endorsing the Simpson two-path framework and rejecting a blanket “victim trauma” justification, the Supreme Court has provided clearer instructions to hearing examiners, prosecutors, and defense counsel alike. Future revocation cases will likely feature more diligent witness-securing efforts and more detailed administrative records—developments that should enhance both the fairness and the perceived legitimacy of Wisconsin’s community-corrections system.