Clerk: SJC-13157 Commonwealth v. Concetto S. Costa.
Justice: Okay. Attorney Levin.
-: Thank you, Your Honor. Good morning.
May it please the court, Patrick Levin
on behalf of Concetto Costa
who appeals this morning
from the revocation of his probation
based on an uncorroborated hearsay accusation
that he was not permitted to challenge in any manner.
There are three parts to my argument in this case,
each of which the court really only needs to reach
if it disagrees with me on the prior argument.
So, I'm gonna, they do bleed into each other a little bit.
I'm gonna try to keep them analytically distinct.
The first issue is the admissibility of the hearsay
absent confrontation in the Commonwealth's Case-in-Chief.
The second issue is if that was admissible
whether Mr. Costa was properly forbidden
from summoning his accuser to be cross-examined
in his case.
And then the third issue is if it was correct
for cross-examination to be entirely denied
whether it also was proper
to forbid him from calling other witnesses
to impeach this accuser's credibility.
So, as to the first issue,
I just wanna emphasize that we have never claimed
that this hearsay does not appear reliable on its face,
and that in the absence of the evidence developed
through the defense investigation
certainly would've been admissible.
And for that matter, that also is true of my second claim
that in the absence of the defense evidence,
he also properly could've been precluded
from calling this alleged victim as a witness
in his own case.
The key to this case is the evidence
that was developed by the defense
suggesting that this person's account was not to be trusted.
And the motion judge first, Judge Howell,
improperly disregarded all of that defense evidence
when she was deciding
both whether the hearsay was going to be admissible,
and whether Mr. Costa would be allowed to summons
the accuser himself.
And her reasons for doing so were legal error,
and they also were not really pertinent
to the issue that was before her.
I wanna draw the court's attention in particular
to the motion judge's statement
that the defense evidence appeared to be a veiled attempt
to show that this witness
had a propensity for untruthfulness.
This was not a veiled attempt.
It was a forthright attempt
to show that this accuser was not an honest person,
and that her word could not be trusted
in the absence of cross examination.
Justice Lowy: Mr. Levin, you're certainly correct
that these three issues bleed into each other.
-: Yes.
Justice Lowy: And just demonstrated with that argument.
But let's go back to the first one.
Isn't there a level of complexity in our case law
that we need to grapple with your argument in the sense
that the issue is not whether or not the hearsay
was admissible at the probation violation hearing.
The issue is under Durling
whether it had substantial reliability.
And again, to use your phrase, I think you're right
because it's very hard to compartmentalize
these three arguments.
That then flows into your second and third argument.
I mean, that's sort of a conceptual framework
we have to grapple with, isn't it?
-: I agree, Your Honor.
But, what I would say the question
of whether the hearsay has substantial reliability
can't be made in total disregard of the suggestion
that the person who's making the accusations
is not a credible witness.
And so, as you see this in the appeals court opinion
in Commonwealth versus King,
which is sited throughout my brief,
where the court says,
so, the police respond in that case
to an alleged domestic incident,
and they see, I mean the alleged victim
says he kicked in the door,
and you know, broke down the door,
and assaulted me, essentially.
And the police observed the door is broken down.
But, they also observe some reasons
within this person's demeanor and conduct
as well as her, some prior incidents, apparently,
where she had been found maybe not
to have been telling the truth to police.
And in light of those other pieces,
the appeals court says, "Well, were it not for this,
then we might find the hearsay reliable.
But this other information so undermines the reliability
that we can't say
that this is substantially reliable hearsay
that justifies the revocation of probation.
And I wanna emphasize also
that this is a pretty unusual case.
I've dealt with a number of these cases
and it's rare to see this type of robust showing
of dishonesty on the part of a complaining witness.
And not, I mean certainly dishonesty as a general matter
including these false accusations
that she's made in the past,
the pattern of lies and theft that her exes describe,
but also this evidence from the disinterested neighbors
that is not consistent
with the story she tells about Mr. Costa.
And so, I don't think
that this court's decision in this case
sweeps very far beyond this case.
It's pretty unusual to see this type of a showing.
And, I wanna emphasize also...
Justice Kafker: Would that be true
if there were any marks on her?
I mean, if she had any indication of bruising, or,
shes', you know, slapping,
what we see in a lotta these cases.
Would this all go out the window if that were the case?
'Cause we got a lotta people who lie
in a lotta things in the world,
but we don't (chuckles)
we don't, sort of, develop that evidence like that.
You know, we don't,
I mean you say there aren't many cases out there.
It's 'cause we do it through reputation, right?
We don't allow individual instances to be proven.
So I'm just trying to understand the limitations of this
'cause I see each one, sort of,
you know, mushrooming into problems.
-: Yes, Your Honor.
So, I,
to take your latter point first,
I agree that that type of information
typically doesn't get developed at trial.
But even in my experience
looking at defensive investigations,
you don't often see this type of allegation
of a consistent pattern of deception
including false accusations of crimes.
But, to go back to your initial question...
Justice Kafker: I see the point
about false accusations of crimes,
but we see a lot of (chuckles),
we see a lot of questioning everyone's factual statements
and shading of truth.
Mr. Levin: Mm-hmm.
Justice Kafker: That kinda stuff that...
-: That's right, and I do wanna emphasize that
Judge Howell on this motion was not deciding
whether what any of these people were saying was true.
She was deciding whether at the hearing it would necessary
for that story to be told in person
and subject to cross-examination
which is the way that our system typically
sorts these things out.
Justice Kafker: I mean, I get the significance
of the fact that she may be bipolar.
I get the significance
that she may have made up criminal activity.
The fact that her neighbors think she's obnoxious,
you know, a lotta people's neighbors
think their neighbor's obnoxious.
I mean, we're not gonna really open that up
each time, are we?
Mr. Levin: Yeah, I agree
that the fact that...
Justice Kafker: And that their ex-boyfriends
think that they're shifty and untrustworthy.
You know, that's also gonna sweep in
a lot of bad relationships, isn't it?
-: Well yes, but,
so to take both of those points,
first as to the neighbors, I agree.
It's not particularly relevant
that they find her obnoxious.
But the point is the neighbors didn't say,
"We never heard anything.
We didn't see any problems in this relationship."
What they said is, "The walls in this apartment building
are incredibly thin.
We did hear them fighting all the time,
and it was always her screaming at him.
She was always the aggressor."
And if you take her accusations as true,
it's hard to imagine that at least one of these neighbors
wouldn't have heard at least one of the occasions
that dozens, I mean, weekly,
multiple times a week, she's alleging,
over the course of four months
that they're having these fights where he's the aggressor,
screaming threats to kill her,
forcible preventing her from leaving the apartment, so...
-: [Justice Wendlandt] What is the defendant's relationship
to the ownership of this complex?
-: There's no relationship apparent on the record, at least.
His mother had previously lived
in the apartment building before,
so that's how he met the alleged victim in this case
as she was his mother's neighbor.
And then he moves into the apartment
when they become engaged.
-: [Justice Wendlandt] So the neighbors
know the mother, presumably?
-: Presumably the neighbors know the mother as well. Yes.
But then to go,
I wanna get back to the question
that you originally asked me.
I do think we have a pretty different case
if there's evidence of physical injury to this victim.
Justice Kafker: So, if we're gonna
compartmentalize your holding
where there's actual physical corroboration of anything,
we're not gonna require this.
What you're saying is we can limit yours by saying,
"Okay, in a case in which
we have absolutely no corroboration
except for the consistency of the statements,
Mr. Levin: Mm-hmm.
Justice Kafker: Then, you know, it's a he-said-she-said,
and you gotta put the person on the stand."
Is that, and is that consistent with, I mean,
the cases out there?
I understand there's very little,
but Heartfield is your best case.
Mr. Levin: Yes, I agree.
Justice Kafker: Is there anything else out there
that's helpful on that point?
-: So, Heartfield is essentially the only case
on this question of when the due process right
to present a defense
requires that you be allowed to call your accuser.
Justice Kafker: Right.
-: I...
Justice Kafker: I'm just looking for a workable rule.
-: Yeah, well I do think this is an area
where bright-line rules are not appropriate.
The due-process test is a fact-specific totality
of the circumstances balancing test.
And so you have to identify all of the interest in the case,
look at it on your particular facts,
and make an ultimate determination.
And when you think about the interest in this case,
it is important, I think, to remember
that the probation that's being revoked
is on on a light felony.
And so if the court were to say
the process that was given here was adequate,
it would be saying the process that was given here
was adequate for life imprisonment.
And in fact, the Commonwealth did request
a sentence of 18 to 20 years in the state prison
after the revocation in this case.
And so, when you're talking about balancing interest,
the liberty interest at stake for Mr. Costa here is immense.
And...
-: [Justice Wendlandt] Is your argument based
on the Confrontation Clause, or is it the right to defense?
-: So, it's not a Confrontation Clause argument
because the Confrontation Clause does not apply
to this proceeding.
But, the right to due process of law
does provide a limited right to confrontation
at probation revocation proceedings.
-: [Justice Wendlandt] Why do you say
the Confrontation Right doesn't apply?
-: That is based on the Supreme Court's holdings
in Morrissey and Gagnon.
-: [Justice Wendlandt] I thought those cases
listed some limited due process issues,
and one of them was the right to confront.
-: That's right,
but the right to confrontation at this hearing
is grounded on the right to due process of law
in the 14th Amendment,
and the parallel right in Article 12
of the Declaration of Rights.
Not on the specific 6th Amendment Confrontation Clause.
Justice Kafker: You also said the intensity of the...
So, the fact that he's going back
for a long prison sentence,
we'd have a different standard if it's three months left?
-: So, it's the same standard, but the interests
that are balanced in that standard are different.
If you see...
Justice Gaziano: Have we done that, Mr. Levin?
There's a liberty interest for sure,
but have we done that as far as looking at the sentence
that could be imposed?
-: So, I think if you look at the opinion at Heartfield,
it does specifically call out the consequence of revocation
in that case being the imposition
of a suspended two-and-a-half year sentence.
Justice Gaziano: My memory is just we've said
that there's a liberty interest
because you have the possibility of jail.
We never said there's a liberty interest
'cause you have the possibility of a lot of jail.
-: Well, I don't think that you can ignore
when you're defining the defendant's interests.
I don't think you can ignore specifically what...
Justice Gaziano: No, I think that goes
to what you said before that this has to be case-by-case.
Mr. Levin: I think that's right. Yes.
Justice Gaziano: And not bright-line
because as you talk about false accusations,
I'm obviously reminded of Bohanan
where we did give a bright-line.
But that's really not applicable here
because here we're dealing with substantial reliability
at bottom, correct?
-: Yes, that's right.
I do wanna just touch on the third question
regarding the admissibility
of his proffered impeachment evidence.
Just to really point out
that when you're doing this balancing of interests,
again the Commonwealth's chief interest
in excluding evidence at these hearings
is not that it makes it more likely
for a revocation to occur
because the Commonwealth only has an interest in revocation
if the revocation is proper.
And so, the Commonwealth's chief interests
are administrative efficiency.
And these witnesses were present in the courtroom.
These witnesses took the stand.
It would not have been a huge imposition
to hear their evidence.
And so when you're doing that balancing,
I think that's pertinent as well.
Justice Gaziano: I know this is in magic land,
but were the witnesses allowed to testify,
would that be sufficient due process
as opposed to subject to complaining witness
to cross-examination?
-: So, my answer to that is no.
My view is that Justice Englander in descent
in the appeals court was correct
when he said that this is the case
that the Supreme Court was talking about in Gagnon
when they said there may be some cases
where you really need to have live testimony.
If there are no more questions,
I would request that the case be remanded for a new hearing
where Mr. Costa can present his defense.
Justice Woman: Okay, thank you very much.
-: Thank you.
Attorney Janssen.
-: Good morning, may it please the court,
Kathryn Janssen on behalf of the Commonwealth.
My brother's absolutely correct
that these issues definitely all kind of
blend and meld in together.
And I think what gets kind of lost a little bit
is it's not necessarily just a right
to confront his accuser,
but also whether it is right to present his defense.
And going first on whether there's a right
to confront his accuser,
that issue issue rests on whether the hearsay admitted
is substantially reliable,
or there's good cause under Durling
to not call, to not have the accuser
or the victim in this case come testify.
I would just like to suggest
that there absolutely was good cause here,
and the judge, Judge Howell found there was good cause
separately and apart from finding substantial reliability
of her hearsay statements.
Due to the affidavit from the prosecutor,
which she credited,
that this was gonna cause undo trauma to the victim,
and this is the type of case
that is exactly contemplative by this court.
Justice Gaziano: It's not a per se rule, correct?
So, for instance, you know,
if there's a case that could involve potential victim
or complaining witness testimony,
the judge doesn't say, "Well, this is a victim case.
The victim's not testifying."
We have to look at the entirety of the record
which could include submissions by defense counsel, true?
-: Correct, Your Honor.
I don't think saying this is a rape case or a victim case.
You're not calling the victim,
or the Commonwealth has to present the victim.
I don't think that would be an appropriate rule.
I think you have to look at, one,
balancing the interests, the societal interests
of adding probation revocations as another thing
that a victim, especially a victim of sexual assault,
has to testify to
with, whether she's gonna have,
her testimony's gonna aid
the reliable determination whether a revocation happened.
And I would say here Judge Howell clearly did look
at the evidence proffered by the probationer
about whether or not,
in substantial reliability and good cause,
she found properly, I would submit to the court,
that the evidence he submitted
which were investigator interviews
of the neighbors and ex-boyfriends
were not substantially reliable.
They weren't under oath like the grand jury testimony,
the restraining order affidavit by the victim,
as well as they weren't made to a police officer,
so there's no risk of a criminal charge
for now been lying to a police officer.
And also to the fact that victims,
excuse me, the neighbors hearing the victim
or not liking the victim
don't necessarily directly contradict
what the victim had said.
And I would also submit, if you listen to the voicemails,
I believe they were transmitted with the appeals court case.
If not, I'll be happy to have that happen.
But, when you look at the tone, and nature,
and tenor of the relationship through those voicemails
which corroborates the victim's account
regarding the nature of the relationship,
he's not very loud and screaming at her.
They're very aggressive and menacing.
And so, she never said he threatened to kill her
by screaming at her.
He said, he just threatened to kill her.
And so you can definitely see
where these threats and this violence that happened
doesn't necessarily mean it's gonna be loud
and the neighbors are gonna hear it.
-: [Justice Georges Jr.] That all may be true,
but what concerns me here is it's hard enough
to prove a negative, right?
Because he's claiming that it didn't happen.
So, it's hard enough to do that just in general,
but when you're not allowed to confront,
and we know that the procedural guarantee of that
is cross-examination,
you can't cross-examine the complainant.
You can't bring in your investigator's witness.
And I understand that you say
there might be all kind of wards to these witnesses.
But nevertheless, they are folks were mined by the defense
that were helpful to the defendant's position.
And you have to also add that we know
that the quantum of proof
is just a preponderance of the evidence.
Why wouldn't all of that militate in favor
of giving the defendant some opportunity,
some due-process opportunity, to defend himself?
-: I would suggest he was given that opportunity
to defend himself.
I think- Justice Georges: How?
-: Because, one, his statement
from the restraining order hearing came in
denying that this happened saying she's making this up,
she's using this to break up with me.
He was able to get that in
without having to testify himself
and be subject to cross-examination.
He also was able to get in from,
he was gonna leeway through the revocation judge
with the ex-husband's testimony
regarding there could be a motive
to fabricate this through the custody issues
with her daughter, or access to that,
as well as the probation officer,
that this could have been,
her relationship with the defendant
could've been an impedment to that.
He also was able to elicit from the landlord
who we called to testify
that there were no complaints from the neighbors,
I saw no damage to the apartment like she had claimed.
He was also able to highlight an inconsistent statement
regarding the consensual sex
that she had said that never had happened
in the grand jury testimony
versus that it did happen a few times
with the police officer.
As well as the fact that she never expressed
any concern to anybody.
So, this was not a case
where he wasn't able to present direct evidence
directly about this relationship with,
her relationship with him.
Anything with the ex-husband or ex-boyfriend
were, I think the judge was correct,
to say that these are kinda collateral in nature,
and they're not really relevant
about what this relationship is.
And as far as confronting the victim,
and having her being called by the Commonwealth,
or him being able to present a defense,
I think they're different.
You can't just call-
Justice Kafker: I think the most useful information
he can bring is direct testimony
from someone else involved in a relationship with her
that she will use the criminal or legal process,
you know, misuse the criminal or legal process.
I mean that's, otherwise he's got no shot here
without being able to at least put her on the stand, right?
And he's (chuckles) he can't defend himself, right?
Ms. Janson: Well, I would disagree that-
Justice Kafker: I mean, he's gonna,
probation's gonna be revoked.
You've got this, if she's telling the truth,
and she said the same story three times,
he's saying she's bipolar,
she's misused the system in the past.
Give me a chance to show that.
And you're, but he really get to do any of that.
He gets to put in this kinda marginalia.
-: Well, I would suggest that there was no actual evidence
that she had actually misused the legal system in the past.
There was nothing from his showing apart from the ex-husband
that she actually did lie in the custody proceedings
or followed through on those threats.
And so I would suggest that claim is not reliable.
And I would also suggest there's no showing-
-: [Justice Wendlandt] Unreliable because
it's not corroborated?
Is that your position?
-: I would say it's not reliable
because it's not corroborated, that is it.
-: [Justice Wendlandt] But on her
and her grand jury testimony it's substantially reliable
even if not corroborated?
How do you reconcile the two positions?
-: I would say that her testimony was corroborated
to an extent.
I understand the physical assaults and the rapes directly
were not corroborated by physical evidence,
however I would say to you,
to use the case my brother used, King,
her demeanor when talking to the police officer
consistently when being interviewed by the prosecutor,
before the grand jury,
that corroborates, I think, the nature also
of these what she's saying happened.
And I would also suggest the fact
the picture, that he would send a picture
of a gun in his mouth to her, the voicemails.
I do think those corroborate more, that's more substance,
than what he was trying to get in through the ex-husband.
Justice Lowy: So, your argument has dealt
with whether hearsay is substantially reliable.
And also you've made the arguments
why the alleged victim shouldn't have to testify.
Don't you have to address the issue
of the limitation on cross-examination
separate from the victim in and of itself as well?
Ms. Janson: Yes, Your Honor.
I think those are separate issues.
Justice Lowy: Then they bleed into each other
as Mr. Levin said,
but you still have to straight up deal
with the impeachment evidence that was proffered
and not admitted.
-: Correct, Your Honor.
And I would suggest that the goal of revocation hearing
is a reliable determination based on relevant evidence.
I would suggest that the opinions,
there were two types of, I guess, evidence,
that was offered for impeachment:
Opinion, reputation evidence,
and then also some specific instances
which the probation alleges were a pattern of conduct.
As far as opinion evidence,
that's, one, not reliable I think
for the same reason that a reputation room
is too small a group of people is not reliable.
And two, I also think it's not relevant
based on these unique relationships that she had.
Every relationship's different.
You can't really say someone's gonna act the same way
in a relationship.
And as far as pattern,
I guess I would say pattern of conduct evidence
is maybe the best way to frame it,
I would suggest this was straight propensity evidence.
And it was sought to be used
for the very reason why we don't use propensity evidence
which is she's lied, a claim, an unsupported claim
that she's lied in the past,
and that she's gonna do it again in this instance.
And, you know, it would be improper
for the Commonwealth to say,
"Well, the probationer was on probation for rape of a child
so because he committed a rape before,
he likely committed this rape."
And that would be improper,
and I think they kind of follow the same line.
And I would suggest that the pattern here
was not false accusations of this type of rape,
or this type of violence.
And I think if it had been,
we might be closer to a Bohanan issue
where even if there wasn't independent verification,
which I would suggest you probably would meet something
for the reliability aspect of it,
but you'd be closer to that.
-: [Justice Georges Jr.] Well, I'm gonna just
probe that for a minute because my understanding
was that it was being offered for a non-propensity reason.
Like, this was her pattern.
This was the pattern of how she operated,
and that's a non-propensity-based reason.
So, why wouldn't that have been appropriate evidence
for the judge to consider on the revocation?
-: Right, I understand the claim
was that it wasn't propensity.
I will suggest it was.
However, as I had said before,
I don't think this reaches the level of pattern of conduct
because for pattern of conduct
I think you have to have more similarities than just this.
For example, oftentimes in cases we have somebody
who has a deviant interest in young children, right.
And that would unique circumstance.
I think here you have the ex-husband,
there's custody issues,
and that's kinda with her pattern of conduct with him,
whereas with this ex-boyfriend it's money issues.
It's not the same type of allegations
that are being made here.
And I just don't think that they rise to that level.
-: [Justice Georges Jr.] What were the money issues?
If you could please, give me the specifics on...
-: I believe the money issues from the ex-boyfriend
were that he took out a loan for her
and she didn't pay him back,
and that she stole $200 from him.
He claims that she had hit him
on the side of the road in New Hampshire,
but he plead guilty to that suggesting
that he actually did hit her.
So, I don't think it rises to a level
of a pattern of conduct.
I think they're unique relationships,
and I would suggest it's not enough.
-: [Justice Wendlandt] So, as I understand the case law,
the default is that the probationer can call witnesses.
Ms. Janson: Yes.
-: [Justice Wendlandt] What is the factor
that you're relying on in this case
for not requiring, or not allowing him to call her?
-: Well, I think it's the totality of the circumstances
in all three.
Judge Wendlandt: What are those?
-: So, whether his counter-filing interests
overcome his presumptive right to call the victim
or a witness,
I think the number one factor,
because there was an individualized showing
of trauma to this victim.
I'm not gonna hide behind that, and say that,
it is a big factor for the Commonwealth,
and there was a strong showing
that this would cause undo harm to the victim.
I don't think that alone would be enough most likely
to not call the victim to present a defense.
-: [Justice Wendlandt] So, are you saying that was strong
because there was an affidavit of the prosecutor
saying that she, what?
-: Saying that she, every time when she first interviewed her
she was hyperventilating, she was crying,
she felt like she was gonna throw up.
When she testified before the grand jury,
she had to pause multiple times.
She almost vomited multiple times in the grand jury,
and was crying.
-: [Justice Wendlandt] Okay, so that's one factor.
And the other two factors?
-: And so the other two factors
are whether or not her testimony
would add to, add anything different
from what was already presented in terms of, I guess-
-: [Justice Wendlandt] It's whether it would be significant
in determining whether it's more likely than not
that he committed this violation.
-: Correct, that's one of them.
And when you're looking at that factor
or looking at whether her testimony
would be cumulative of other evidence,
and I would suggest it would be.
Here there has to be some hope or some showing
that you're actually going to be able
to elicit something from her.
And I would suggest here a showing
that could be made by the defendant
is you can only get the motive to fabricate
out of the victim, or there's a real hope
of getting inconsistent statements out of her.
Here, it doesn't-
-: [Justice Wendlandt] No, I think a good cross-examiner
would try to make her look less credible.
-: Well, I would suggest that
that's conflating the right to confront
and right to present a defense.
I don't think you can just call a victim.
-: [Justice Wendlandt] They're different rights,
but they do overlap.
-: They do overlap, but I think
there has to be some hope of presenting
some type of evidence.
And that would be whether you could only get a motive
to fabricate out of her prior inconsistent statements,
which are definitely kinda close to the line
of cross-examination.
But you need to have some type of showing
you're going to be able to get that out of her,
and here there was not that showing.
I think it was speculative at best.
And you get the motive to fabricate out of her ex-husband
as well as the probation officer.
So, her testimony wouldn't have added anything,
and I don't think you-
Justice Kafker: It's a chicken and the egg, right?
Because she's not put on,
we don't know whether any of that would've come out.
You know...
-: I would suggest the questioning,
the line of questioning he would want to go into
would be improper for the same reasons
why it was improper to ask the ex-husband
and ex-boyfriend about that.
And I would suggest this is not a case reasonable showing
where there's a number of inconsistent statements from her
and you're hoping to get another one out of her.
Or, there's only a motive to fabricate
that you can get out of her.
That's not this case.
-: [Justice Wendlandt] Okay.
-: If there are no further questions,
I'm happy to rest on my brief.
Justice: Thank you so much. -: Thank you.
Justice: We'll Take our morning break.