by Harold Hempstead

The Supreme Judicial Court of Massachusetts held that a probationer’s due process right to present a defense was violated when he was precluded from calling the complainant as a witness at his probation violation hearing.

In 2008, Concetto Costa pleaded guilty to pleaded guilty to multiple sex crimes. In 2014, he was released from prison and began serving a term of 10 years’ probation. A condition of his probation was to obey all local, state, and federal laws.

In 2019, his live-in girlfriend filed a complaint with Salisbury police accusing Costa of repeatedly raping her and various other crimes. Sergeant James Leavitt helped the complainant with an application for an abuse prevention order. In the accompanying affidavit, the complainant stated that Costa “forced himself on [her] sexually” and threatened to kill her if she left him. An emergency order was issued and extended for one year the following day. The complainant returned to the police station to provide additional details of Costa’ alleged abuse, and based on those statements, a criminal complaint was issued charging him with multiple offenses. Costa was arrested and held without bail.

Following his arrest, the complainant testified before a grand jury, explaining her relationship with Costa and his alleged abuse. The grand jury indicted him on multiple charges, including rape, kidnapping, and intimidation of a witness. A notice of probation was issued based on the indictments. At the probation violation hearing, the district attorney introduced the complainant’s grand jury testimony transcript, the complainant’s application for the protective order along with the attached affidavit, and a police report detailing what the complainant told Leavitt at the police station. But the complainant was not called as a witness at the hearing because she advised the district attorney that she couldn’t emotionally handle testifying.

Costa sought to bar the district attorney from introducing the foregoing statements as unreliable hearsay. The district attorney opposed the motion and sought to preclude Costa from calling the complainant to testify. The Superior Court denied Costa’s motion and granted the district attorney’s motion. In a subsequent hearing, the hearing judge ruled that Costa violated his probation by committing new crimes, revoked his probation, and sentenced him to five years in prison. Costa appealed, arguing, inter alia, that his due process rights were violated because he was denied the opportunity to present a defense.

The Court began its analysis by explaining probation revocation hearings are not part of a criminal prosecution. Commonwealth v. Durling, 551 N.E.2d 1193 (Mass. 1990). This means that probationers are not entitled to the “full panoply of constitutional protections applicable at criminal trial.” Id. However, probationers continue to have a liberty interest with respect to the proceedings, so they have a right in not having their opportunity to show their successful rehabilitation and reintegration into society arbitrarily taken away. Id. Consequently, probationers have a due process right to “a meaningful opportunity to present a defense.” Commonwealth v. Hartfield, 51 N.E.3d 465 (Mass 2016). 

The standard for determining whether a probationer’s right to present a defense has been violated focuses on the “totality of the circumstances in each case.” Commonwealth v. Kelsey, 982 N.E.2d 1134 (Mass. 2013). Accordingly, “a probationer has a presumptive due process right to call witnesses in his or her defense,” but the presumption can be overcome by a showing that the proposed testimony is unnecessary for a fair adjudication of the alleged violation or unduly burdensome to the witness. Hartfield.

In applying the totality of the circumstances analysis, the hearing judge is required to consider, at least, the following three factors: “(1) whether the proposed testimony of the witness might be significant in determining whether it is more likely than not that the probationer violated the conditions of probation; (2) whether, based on the proffer of the witness’s testimony, the witness would provide evidence that adds to or differs from previously admitted evidence rather than be cumulative of that evidence; and (3) whether, based on an individualized assessment of the witness, there is an unacceptable risk that the witness’s physical, psychological, or emotional health would be significantly jeopardized if the witness were required to testify in court at the probation hearing” Id. As to the third factor, the Court stressed that the assessment must be “individualized and evidence-based” because the Supreme Judicial Court has rejected “a general rule that would prevent a probationer from ever calling” a complainant alleging sexual assault to testify as part of the probationer’s defense. Id.

After discussing the foregoing legal principles, the Court stated that the issue for it to consider is whether the Commonwealth has successfully overcome the presumption that Costa had a right to call the complainant to challenge her credibility. As to the first Hartfield factor, the Court stated that the complainant’s live testimony is “highly significant” on the issue of whether Costa committed a crime in violation of his probation because her uncorroborated statements were the only evidence against Costa. It added that Costa’s “best chance” to impeach the complainant’s credibility was during live testimony. See Hartfield; see also Gagnon v. Scarpelli, 411 U.S. 778 (1973) (recognizing that in some cases “there is simply no adequate alternative to live testimony”). Additionally, Costa presented evidence of statements by the complainant’s former partners and neighbors that seriously undermined the complainant’s allegations and credibility, the Court noted.  

Turning to the second Hartfield factor, the Court stated that Costa, during the evidentiary hearing, stated he would have explored several lines of questioning that were not touched upon by the Commonwealth, such as challenging the complainant about her inconsistent statements, specific dates the alleged abuse occurred, neighbors’ statements that they never heard Costa yelling at her but rather it was the other way around, and the landlord failing to see any damage to their apartment despite the complainant alleging Costa damaged it in a fit of rage in her statements introduced at the hearing. The Court stated that these lines of questioning “were not speculative; they were supported by admissible record evidence proffered by the parties.”

Finally, the Court addressed the third Hartfield factor. It noted that the complainant appeared visibly upset when talking with the police and district attorney; she claimed to be losing sleep and having nightmares; she was accompanied by a domestic abuse counselor when she testified before the grand jury; and she told the district attorney that she felt anxious and might vomit. The Court stated that those factors weigh in favor of the Commonwealth, but they are not sufficient to overcome Costa’s presumptive right to call witnesses in his defense, the Court determined. The Court based its conclusion on the centrality of the complainant’s credibility to the case, the absence of any evidence to corroborate her allegations, and Costa’s evidence casting serious doubt on her credibility. Thus, the Court ruled that the hearing judge erred in denying Costa’s request to call the complainant as a witness because it violated his due process right to present a defense, and the error was not harmless.

Accordingly, the Court vacated the finding that Costa violated the conditions of his probation and the order revoking his probation and remanded the matter to the Superior Court for further proceedings consistent with its opinion. See: Commonwealth v. Costa, 189 N.E.3d 284 (Mass. 2022).

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