
(2008)
Jerry VALDIVIA, Alfred Yancy, and Hossie Welch, on their own behalf and on behalf of the class of all persons similarly situated, Plaintiffs,
v.
Arnold SCHWARZENEGGER, Governor of the State of California, et al., Defendants.
No. Civ. S:94-cv-671 LKK/GGH.
United States District Court, E.D. California.
March 25, 2008.

ORDER
LAWRENCE K. KARLTON, Senior District Judge.
On February 25, 2008, the Special Master filed his report and recommendations regarding the use of hearsay evidence in parole revocation proceedings. See Permanent Injunction, at 880, The defendants have filed objections to the Special Master's report; the plaintiffs encourage the court to adopt it. with modification. The court declines both parties' requests and adopts the Special Master's report and recommendations.
Despite defendants' objections, the court agrees with the Special Master's interpretation of United States v. Comito, 177 F.3d 1166 (9th Cir.1999), United States v. Hall, 419 F.3d 980 (9th Cir.2005) and related hearsay cases in this Circuit, and their application to the defendants' parole revocation proceedings. His findings of fact are supported by the record. The Special Master's recommendations appear to the court well-calculated to ensure the due process protections as expressed by the Supreme Court and the Ninth Circuit are respected. All of defendants' objections are overruled.
Plaintiffs' principally request that the Special Master's recommendations be amended to include concrete deadlines by which the defendants must accomplish certain remedial measures.[1] The court declines to do so and defers to the Special Master, in his conscientious attention to and intimate knowledge of the case, to ensure that the remedial measures ordered are completed expeditiously.
Accordingly, the court ORDERS:
1. The court ADOPTS the Special Master's Report and Recommendations Regarding Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction (Docket No. 1398);
2. The parties SHALL undertake the acts recommended by the Special Master at pp. 863-71 of the Report. The court defers to the Special Master to ensure these acts are timely accomplished. Should he believe necessary, the Special Master may move the court to require specific deadlines.
IT IS SO ORDERED.

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION
CHASE RIVELAND, Special Master.

INTRODUCTION
This Court entered a Stipulated Order for Permanent Injunctive Relief in this action ("Permanent Injunction") on March 9, 2004. Among its provisions is the following requirement:
The use of hearsay evidence shall be limited by the parolees' confrontation rights in the manner set forth under controlling law as currently stated in United States v. Comito, 177 F.3d 1166 (9th Cir.1999). The Policies and Procedures shall include guidelines and standards derived from such law.
See Ex. A at 6 (Permanent Injunction).
While Defendants distributed policies and procedures in 2004, the parties have not agreed as to their adequacy. Further dispute arose when, in 2006, Defendants wished to amend practices based on recent case law.
The parties met and conferred concerning this Permanent Injunction requirement in 2007. In August 2007, the parties determined that they wished to seek clarification of what the law requires in light of recent developments in case law. They chose to pursue a fact-finding hearing held by the Special Master with Report and Recommendation to the Court, and de novo review by the Court, as provided for in Paragraph IV.E of the Stipulation and Amended Order Re: Special Master Order of Reference.
On December 14, 2007, this matter came on for hearing. Documents were produced in response to two requests for production. Having reviewed the pleadings, arguments of counsel, and documents, the Special Master submits the following Report and Recommendation for the Court's consideration.

FINDINGS OF FACT
1. Policies and procedures concerning the application of Comito and related case law were distributed to Defendants' staff in July 2004. Ex. B at 68:16  69:17 (Reporter's Transcript of 12/14/07 Hearing).
2. As illustrated in the examples below, these policies and procedures contain inaccurate statements concerning parolees' confrontation rights under the controlling law stated in Comito, 177 F.3d 1166. Ex. C (CDCR Resource Documents 1, 2, 3 ("RD")). For example, the "Hearsay" section of Resource Document 1 states that the Comito balancing test:
balances the parolee's right to confrontation against the use of the hearsay evidence.
Ex. C, RD1 p. 8. As will be discussed infra, the test balances "the releasee's interest in his constitutionally guaranteed right to confrontation against the Government's good cause for denying it." Comito, 177 F.3d at 1170. The same document describes a Deputy Commissioner's task as:
determining that the parolee's right to confront is outweighed by the trustworthiness of the evidence.
Ex. C, RD1 p. 8. While trustworthiness is a factor that can lessen the parolee's interest, under Comito, trustworthiness alone cannot completely outweigh that interest. See infra at ___. In Resource Document 2, a summary of the right to confront and cross-examine adverse witnesses indicates:
the [Deputy Commissioner] can deny the confrontation of an adverse witness if it is shown that the witness is unavailable for good cause, or determined to be either fearful or confidential.
Ex. C, RD2 p. 3. This omits any mention of the required assessment of the parolee's interest in confrontation and weighing it against the described good cause. A Resource Document 3 summary of the Comito balancing test reads:
[the test] balances the parolee's right to confrontation against the need for the evidence to the disposition of the case and the trustworthiness of the information.
Ex. C, RD3 p. 2. This is the converse of the preceding example; it describes the assessment of the confrontation interest, but omits the good cause assessment prong of the test.
In these policies and procedures, there also are repeated references to all relevant evidence, or all hearsay evidence, being admissible. See, e.g., Ex. C, RD1 pp. 2, 3, 4, 5, 12. While some references are accurately quoting statutes or regulations, the repeated references send a message contrary to the controlling law that some relevant or hearsay evidence should be excluded after conducting a balancing test.
3. Defendants assert that the distributed policies and procedures include guidelines and standards that comply with the mandate set forth in Paragraph 24 of the Permanent Injunction. Ex. B at 68:16  69:17. A review of those policies and procedures reveals that any guidelines and standards to be found therein are insufficiently detailed to provide the guidance contemplated by this Permanent Injunction requirement. Ex. C.
4. After the Ninth Circuit issued its opinion in United States v. Hall, 419 F.3d 980 (2005), Defendants informed Plaintiffs of their position that hearsay evidence that falls within a recognized hearsay exception may be admitted without applying the Comito balancing test. Ex. B at 6:25  8:20; Ex. A-Sealed at 1:7-12 (Reply Declaration of Ernest Galvan in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).
5. The record indicates that Defendants have discussed changes to their policy concerning admission of hearsay exceptions but have not yet instructed their staff to admit proffered evidence under a hearsay exception without applying the Comito balancing test. Ex. 2 to Ex. F (Reply Declaration of Loren G. Stewart in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. B at 8:24  9:5. In training in March and April 2007, Deputy Commissioners were told that Defendants were exploring the possibility of changing this practice, but to continue to apply the Comito balancing test at that time. Ex. 4 to Ex. A-Sealed at 46 (CDCR Valdivia Compliance Report 9/26/07). In a November 2006 Deputy Commissioner academy session, instructors mentioned hearsay exceptions but did not make any explicit link to any effect they may have on the Comito balancing test. Ex. D at 2:1-3 (Declaration of Loren G. Stewart in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).
6. Only a small majority of experienced Deputy Commissioners are lawyers, as is only one of the recent hires. Ex. B at 81:1-21. Taken together, this means that a minority of the Deputy Commissioners currently serving are lawyers. While a background in law is not a requirement (see Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)), there is no evidence in the record that the non-attorneys have any familiarity with evidentiary law apart from the training Defendants provide.
7. Training provided to Deputy Commissioners consists of three to three and one-half hours of instruction in an academy shortly after their hire. Ex. E (Board of Parole Hearings Deputy Commissioner Training 12/20/07); Ex. D at 1:22-25. Continuing education was offered in and March and April 2007 for one and onequarter hours. Ex. 5 to Ex. A-Sealed (Board of Parole Hearings Deputy Commissioner Workshop 3/27/07).
8. When Plaintiffs' counsel attended training sessions, they formed the opinion that the trainings "provided confusing and inconsistent messages regarding the standards and procedures to be followed under the controlling Comito case." Ex. D at 1:6-10, 2:4-13.
9. As described in the following paragraphs, all parties are aware that, in practice, there have been deficiencies in the application of Comito and related case law to evidentiary questions. Defendants have observed instances of Deputy Commissioners failing to apply the required balancing test, and other instances where the balancing conducted was inconsistent with the Comito standard. Ex. B at 71:21  72:16. One of Defendants' staff asserted that it was a common mistake for Deputy Commissioners to admit evidence central to the ultimate finding because it was central to the finding, when such evidence should weigh against admission because it heightens the parolee's confrontation interest. Ex. D at 1:25-28. A Deputy Commissioner confirmed that was his approach during an interview with Plaintiffs' counsel. Ex. B-Sealed at 1:23-24 (Reply Declaration of Anne Mania in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).
10. Plaintiffs' counsel have observed Deputy Commissioners failing to apply the required balancing test, and other instances where, in Plaintiffs' counsel's assessment, the balancing conducted did not follow the Comito standard. Ex. 1 to Ex. B at 5-7 (Notice of Motion and Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. B-Sealed. Plaintiffs' counsel have also observed confusion about the standard expressed by Deputy Commissioners and Associate Chief Deputy Commissioners as recently as March 2007. Ex. D at 2:4-13.
11. Documents concerning revocation hearings, submitted as evidence by Plaintiffs, contain two examples of a Deputy Commissioner incorrectly applying the relevant balancing test. One discussion reads:
P's interest in confrontation weighed against the importance of witnesses' testimony to the final finding of fact is lesser than the reliability of the hearsay evidence and the corroboration of it.
Ex. 3 to Ex. C-Sealed at 5 (Reply Declaration of Kristen Palumbo in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction). No reason was given for the declarants' absence. Id. at 1. The established test is to balance the parolee's confrontation interest against the State's good cause for denying it; in the absence of any discussion of good cause for declarants' absence, the correct balancing test could not have been carried out. Additionally, importance of the evidence to the ultimate finding is a factor that heightens the parolee's confrontation interest, not a factor to be weighed against it. See infra at 859.
In another revocation hearing, the Deputy Commissioner acknowledged multiple prongs to the test but did not employ them. Ex. E-Sealed at 3:17, 4:21-24; Ex. F-Sealed; Ex. H-Sealed at 34:4-37:3 (Transcript of Revocation Hearing for Parolee 2).[1] She considered the reliability of the hearsay based on its status as, or similarity to, documents that would fall under a business records exception, as well as reliability established by corroborating evidence. Ex. H-Sealed at 34:4-37:3. The Deputy Commissioner did not discuss the strength of the parolee's confrontation interest, the importance to the ultimate finding, or the good cause for not producing the declarants, nor the relative weight among them. Id.
12. Transcripts of audiotaped revocation hearings, submitted as evidence by Plaintiffs, contain an example of a Deputy Commissioner dismissing a confrontation rights objection without applying the relevant balancing test. Ex. 1 to Ex D-Sealed at 8:1-12 (Reply Declaration of Shirley Huey in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).
13. The administrator of the panel of attorneys representing parolees in hearings has disagreed with some applications of the Comito standards. Ex. 1 to Ex. Sealed at 34 (First Report of the Special Master on the Status of Conditions of the Remedial Order).
14. Interviewing some Division of Adult Parole Operations staff gave the Special Master the impression that they hold many uncertainties and misinformation regarding hearsay information and Comito requirements. Ex. 1 to Ex. Sealed at 34. Those staff perceived Deputy Commissioner decisions in applying the Comito standard to be inconsistent and sometimes inappropriate. Id. As recently as August 2007, many Division of Adult Parole Operations staff reported to Defendants' self-monitoring teams that they were confused about providing evidence under the standards. Ex. 4 to Ex. Sealed at 47; Ex. 3 to Ex. A-Sealed at 9-11 (CDCR Valdivia Monitoring Report Santa Rita County Jail).
15. The above-described confusion and inconsistency was observed and expressed three years into implementation of policies and procedures arising from Valdivia Permanent Injunction Paragraph 24 obligations. (Policies distributed in July 2004  Ex. B at 69:15-17; observations March 2007 and August 2007, supra.)
16. The scope of the problems detailed above is unknown at this time. Defendants have not tested Deputy Commissioners' understanding subsequent to training. Ex. B at 69:22  70:12. During self-monitoring visits and staff supervision, Defendants observe some Deputy Commissioners in hearings, as do Plaintiffs in their monitoring, but neither party has undertaken any systematic assessment of Deputy Commissioners' skill and accuracy in applying the legal standards concerning confrontation rights. Ex. B at 70:13  71:15.
17. A case presented as evidence by Plaintiffs includes a Deputy Commissioner sustaining a confrontation rights objection and postponing the revocation hearing in response. Ex. E-Sealed at 6:15-19, 7:6-10 (Declaration of Shirley Huey in Support of Plaintiffs' Notice of Motion and Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. F-Sealed (Plaintiffs' Notice of Lodging of Revocation Hearing Transcripts); Ex. G-Sealed at 16:21-25, 23:25-24:20 (Transcript of Revocation Hearing for Parolee 3).[2] The parolee admitted a charge and did not admit two others. Ex. G-Sealed at 10:9-11:2.
His attorney argued the need to cross-examine several listed witnesses, including the alleged victim, percipient witnesses, and involved law enforcement; those witnesses were subpoenaed and did not appear. Ex. G-Sealed at 7:2-8:13, 16:21-25, 21:24-22:22. Concerning some of the witnesses, there was some discussion concerning contact efforts, nonappearance reasons, and assistance, but information was limited. Ex. G-Sealed at 7:9-8:13, 14:4-15:3, 16:10-17, 22:23-23:24. The reasons for the arresting or investigating officers' failure to appear were not discussed. Id.
The Deputy Commissioner did not apply a Comito balancing test to determine whether to admit the proffered hearsay derived from the absent witnesses. Ex. G-Sealed at 16:21-25, 23:25-24:20. He found good cause on the admitted charge and postponed the hearing as to the other two charges while encouraging the parties to secure the witnesses' appearance. Ex. G-Sealed at 23:25-24:20.
18. The scope is unknown for the practice of Deputy Commissioners postponing hearings in order for the State to present more competent evidence after a confrontation rights objection. Neither party has undertaken a systematic review. Ex. B at 37:7  40:21.
19. The mechanism available for reviewing a disputed evidentiary decision is a writ of habeas corpus to the Superior Court. Ex. B at 75:15-21. Regulations provide for a process for the Board of Parole Hearings to review decisions of Deputy Commissioners. The record is not clear as to whether this process is available to parolees. Ex. B at 77:8  79:2, 82:7-12.

CONCLUSIONS OF LAW

I. Parolees' Right to Confrontation
20. The Fifth and Fourteenth Amendments serve as the source of the rights of a parolee in a revocation proceeding; he is not entitled to the full protections of the Sixth Amendment. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.2005). Among the more limited rights due process affords, however, is the right "to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey, 408 U.S. at 489, 92 S.Ct. 2593.
21. For purposes of a due process analysis, courts have treated parole revocation, probation revocation, and supervised release proceedings as essentially equivalent. United States v. Martin, 984 F.2d 308, 310 (9th Cir.1993) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Fed.R.Crim.P. 32.1). The authority cited infra will draw on each of the types of proceedings.
22. In the Ninth Circuit, the prevailing method of determining whether to admit hearsay without the ability to confront the adverse witness is to apply a balancing test laid out in United States v. Comito, 177 F.3d 1166 (9th Cir.1999). The test requires the decisionmaker to determine the degree of the parolee's interest in confrontation and weigh that against the government's good cause for not producing the adverse witness. Id. at 1170. This is a very individualized determination based on the facts and circumstances of each case. Id. at 1172; United States v. Martin, 984 F.2d 308, 310-11 (9th Cir.1993).
23. Factors that heighten the parolee's interest include the importance of the proffered evidence to the ultimate finding and low reliability of the evidence. Martin, 984 F.2d at 311. Common factors going to the government's good cause include the efforts taken to produce the witness, the difficulty and expense of doing so, and concerns for the safety of a confidential informant. Hall, 419 F.3d at 988; Gagnon, 411 U.S. at 783 n. 5, 93 S.Ct. 1756; Morrissey, 408 U.S. at 487, 92 S.Ct. 2593. Other factors may be taken into account, such as the severity of the penalty potentially to be imposed. Martin, 984 F.2d at 312.

II. Hearsay Exceptions
24. The parties disagree about the treatment of hearsay exceptions in revocation proceedings. When proffered evidence falls within a hearsay exception, Plaintiffs take the position that decisionmakers should take this into account by adjusting the weight given in the balancing test in accord with the reliability traditionally associated with such evidence. Ex. 1 to Ex. B at 13:23  14:4. Defendants take the position that proffered evidence falling within a hearsay exception can be admitted without more. Ex. 2 to Ex. B at 2:5-8. Defendants argue that (1) to do otherwise is to afford more rights to parolees facing revocation than to accused criminals facing prosecution and (2) the indicia of reliability inherent in such evidence establishes good cause for denying confrontation sufficient to render balancing unnecessary. Id. at 9:9-11, 2:8-12.

Authority for use of hearsay exceptions in revocation proceedings
25. Neither the Supreme Court nor the Ninth Circuit has ruled directly on whether hearsay exceptions obviate the need for a balancing test in parole revocation proceedings. As discussed below, while some Ninth Circuit authorities suggest the court may favor admitting proffered evidence on the basis that it falls within a hearsay exception, the question has not been posed directly to the court; rather, the inference arises from dicta or from the types of evidence it allowed.
Hall gives perhaps the strongest indications of the Ninth Circuit's inclination concerning hearsay exceptions. In Hall, the court considered whether due process was satisfied when unsworn verbal allegations regarding two separate charges were admitted in a supervised release revocation proceeding. Hall 419 F.3d at 986-89. The court began by employing the Comito balancing test in analyzing the first charge. Id. at 986. It determined that the defendant's interest in confronting the unsworn statements as to that charge was fairly low because there was sufficient nonhearsay evidence to sustain the charge and the hearsay therefore added little to the ultimate finding. Id.
The court then went on to add a paragraph that is not anchored either in what precedes it or follows it. The court wrote:
In addition, several pieces of evidence supporting the domestic violence allegation are admissible under hearsay exceptions. Although the Federal Rules of Evidence do not strictly apply to revocation hearings [citations omitted], longstanding exceptions to the hearsay rule that meet the more demanding requirements for criminal prosecutions should satisfy the lesser standard of due process accorded the respondent in a revocation proceeding.
Id. at 987 (emphasis added). The court then concluded its balancing without expressly employing the evidence subject to hearsay exceptions. Id. It did not discuss how such evidence would or should be used within a balancing test. It did not rule that evidence that falls within a hearsay exception obviates the need for Comito balancing. It made this assertion and then continued and completed the balancing test. The court did not discuss hearsay exceptions when it went on to apply the Comito balancing test to the evidence of the second charge. Id. at 987-89. The evidence subject to hearsay exceptions was not at issue in the appeal. Given the equivocal language "(should satisfy" due process) and the lack of a direct ruling, this dicta is arguably indicative of the court's inclinations, but cannot be said to be dispositive on the hearsay exception issue.
26. Other relevant Ninth Circuit cases cited by the parties preceded Comito and did not discuss hearsay exceptions as a whole. The cases implicitly raised the business document and public records exceptions by virtue of the types of contested evidence at issue; one of these cases explicitly mentioned the public records exception.
In United States v. Walker, 117 F.3d 417 (9th Cir.1997), the court found it was harmless error to admit evidence of a single date from documentary hearsay that should have been subjected to a balancing test but was not. Walker, 117 F.3d at 420-21. The court's rationale focused on the reliability of the date in light of the defendant's failure to challenge the document's reliability and to present contrary evidence. The court noted, but did not rule, that the document was "most likely admissible as a public records exception." Id. (emphasis added).
In United States v. Simmons, 812 F.2d 561 (9th Cir.1987), the court held that admission of hospital records at a probation revocation hearing was not plain error in light of the "traditional indicia of reliability that these records bear." Id. at 564-65. The court's analysis appears to attach to the specific evidence in the case  hospital records.
In United States v. Miller, 514 F.2d 41 (9th Cir.1975), the court found no prejudice to defendant when the lower court admitted into evidence unauthenticated copies of state court criminal records, which showed that defendant had been convicted of criminal offenses while on probation. Although the defendant had objected to the introduction of the records at the revocation hearing, he had not challenged the accuracy of the information revealed by the records, nor had he offered any evidence to refute the claimed convictions. Miller, 514 F.2d at 42. Based on these facts, the court found the unrefuted evidence reliable and admissible under Morrissey and Gagnon. Id. at 42-43.
Martin discussed the expectations of reliability that should be accorded urinalysis reports, implicitly as evidence commonly treated as a business records exception. Martin, 984 F.2d at 313-14. The court held that the defendant had a right to confront that evidence to impeach factors such as efficacy of procedures, experience, and qualifications. Id. at 312-14.
In nearly all of the cases discussed above, the court's language indicates that the narrow facts  a date, a court's record of convictions  are particularly significant to the holding. Walker, 117 F.3d at 421; Miller, 514 F.2d 41; Simmons, 812 F.2d at 564-65. One case suggests recognizing documents subject to one hearsay exception (Walker, 117 F.3d 417); another rejects categorically admitting even a subset of that same hearsay exception (Martin, 984 F.2d at 313-14). There does not appear to be a clear record for treating these rulings as generalizable. Indeed, the court in Martin wrote:
[A]rbitrariness is achieved just as surely by the incremental creation of blanket exceptions as by the outright abandonment of fair procedure.
Martin, 984 F.2d at 314 n. 9.
27. All of the Ninth Circuit cases, including those appearing to advocate admission on the basis of hearsay exceptions, continue to recognize the Comito balancing test as the norm. None of these cases admits a contested piece of evidence expressly on the basis that it falls within a hearsay exception and without conducting a balancing test. Nor does any court rule directly on whether hearsay exceptions categorically establish admissibility. While the Ninth Circuit may use the cited cases as a basis to extend its holdings in the future, it has not yet done so.
28. The Second Circuit, on the other hand, does appear to hold that hearsay exceptions render the balancing test unnecessary. In United States v. Jones, 299 F.3d 103, 113 (2d Cir.2002), the court found it was not an abuse of discretion to admit evidence under the present sense impression and excited utterance exceptions. Jones, 299 F.3d at 113. The Second Circuit distinguished the case from preceding authority requiring a balancing test on the basis that hearsay exceptions applied. Id. Alternatively, the court wrote, in the Second Circuit's balancing test, the hearsay exceptions would serve to satisfy the required element of reliability. Id. at 113-14. In reaching that conclusion, however, the court relied on cases whose validity has now been called into question by a subsequent United States Supreme Court decision (sec infra at 862-63).
United States v. Aspinall, 389 F.3d 332 (2d Cir.2004), followed the rule laid out in Jones, applying it tu documents potentially falling under the business records exception. Aspinall, 389 F.3d at 343-46. United State r. Williams. 443 F.3d 35 (2d Cir.2006), also cited this rule, although it went on to conduct a balancing test because the involved hearsay exception was not firmly rooted. Williams, 443 F.3d at 45-46.
29. One other Circuit offers reason to believe it might employ hearsay exceptions in parole revocation proceedings. In Prellwitz v. Berg, 578 F.2d 190 (7th Cir. 1978), the Seventh Circuit cited the Morrissey dictates of a:
right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation),
but then wrote,
forcing the state to show good cause for not producing the hearsay declarant would unwisely extend the limited due process rights of a probationer at the revocation hearing.
Prellwitz, 578 F.2d at 192. The basis for rejecting the Morrissey requirement was not made explicit. The Ninth Circuit, in Comito, expressly held that requiring the state to show good cause was critical. Comito, 177 F.3d at 1170.
The court in Prellwitz offered two reasons that admitting the contested evidence was proper: that the documents were a "conventional substitute for live testimony" permitted by Gagnon and that they bore indicia of reliability, using language suggesting this was premised on the business records exception. Prellwitz, 578 F.2d at 192-93. This case, however, preceded Comito by two decades, and as noted, employed rationale that Comito squarely rejected.

Rights in relation to criminal defendants
30. It is a significant concern that procedures for parolees do not exceed the rights due criminal defendants. As noted above, it is well-established that the process due in parole revocation and similar proceedings is distinctly limited in relation to the rights of criminal defendants, and that due process for parolees arises from the Fifth and Fourteenth Amendments rather than the Sixth Amendment. Morrissey, 408 U.S. at 482, 92 S.Ct. 2593; Hall, 419 F.3d at 985-86.
Defendants cite to two Supreme Court decisions, which held that evidence that falls within a firmly-rooted hearsay exception has sufficient guarantees of reliability to satisfy the Confrontation Clause requirements in criminal proceedings. Ex. 2 to Ex. B at 6:3-14, citing White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Defendants argue that, given the High Court's decisions, that same evidence should be sufficiently reliable to be admitted under the less rigorous protections in a revocation proceeding, a principle discussed in Hall. Ex. 2 to Ex. B at 6:3-14.
Plaintiffs argue that the principle announced in White and Wright was overturned in Crawford v. Washington; Plaintiffs are only partially correct. Ex. 3 to Ex. B at 5:7-7:2. In Crawford, the Supreme Court held that testimonial evidence could not be admitted without confrontation in a criminal trial unless the declarant was unavailable and the accused had had a prior opportunity for cross-examination. Craivford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). But the Court expressly limited its holding to testimonial evidence, which, while not fully defined, included, at a minimum, prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and police interrogations. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The Court left open the possibility that its earlier cases might still control as to other types of hearsay. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.") The Court expressly declined to say whether it would overrule White, one of the cases standing for the proposition that hearsay within a firmly rooted exception satisfies the Sixth Amendment Confrontation Clause. Id. at 61, 124 S.Ct. 1354.
The Supreme Court has subsequently ruled on one distinguishing aspect between testimonial and nontestimonial evidence in the context of statements to police. Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224, 126 S.Ct. 2266]. In Davis, the Court found that statements, which the trial court had treated as excited utterances and present sense impressions, were testimonial because they were made after the events and the primary purpose was to establish or prove past events potentially relevant to later criminal prosecution. Id. at 2272, 2273-74. It does not appear that the Supreme Court has issued any further decisions concerning the treatment of hearsay exceptions after Crawford,
Thus, it is unsettled whether, and which, hearsay exceptions now provide guarantees of trustworthiness sufficient to satisfy the demands of the Confrontation Clause. United States v. Weiland 420 F.3d 1062, 1076 (9th Cir.2005) ("If the evidence is nontestimonial, there is uncertainty as to whether the `indicia of reliability' or firmly rooted hearsay exception test enunciated in Ohio v. Roberts survives Crawford." [citations omitted])
It is undisputed that Crawford does not apply to parole revocation and similar proceedings. See Hall, 419 F.3d at 985. Given the uncertainty in the law in the criminal context, however, no analogy can be drawn as to the standard for admission in the more flexible revocation proceedings. In the absence of clarity about criminal defendants' rights, the Special Master cannot say whether the Comito balancing test would afford greater or lesser rights to parolees.
31. More persuasive is the argument that, when viewed in context, parolees continue to have significantly fewer rights in revocation proceedings. Ex. 3 to Ex. B at 4:20-27. Even if it were determined that not treating hearsay exceptions as per se admissible affords greater rights to parolees than criminal defendants, the advantage is limited to that aspect of the proceeding. Criminal defendants receive the full protections of the Confrontation Clause, other aspects of the Sixth Amendment, the rules of evidence, and the State's higher burden of proof, none of which is available to parolees facing revocation. Id.

Reliability as an independent test
32. Defendants present several arguments concerning the role of reliability in determining the admissibility of hearsay. They argue that the indicia of reliability inherent in hearsay exceptions provide an independent basis for admission, rendering any balancing test unnecessary. Ex. 2 to Ex. B at 2:5-12, 7:12-13; Ex. 4 to Ex. B at 6:16-17. Alternatively, Defendants argue that indicia of reliability establish good cause for denying confrontation, either because reliability, alone, can satisfy good cause (Ex. 2 to Ex. B at 2:11-12; Ex. 4 to Ex. B at 2:17-19, 6:16-17, 8:18-23), or because reliability is one of the factors in determining good cause (Ex. 2 to Ex. B at 3:24-26, 10:18-19; Ex. 4 to Ex. B at 3:23-28). Assuming arguendo that reliability of evidence can establish good cause, Defendants do not explain whether, or how, such good cause automatically outweighs the confrontation right in every instance. Finally, Defendants also indicate that reliability may be a factor on both sides of the balancing test. Ex. 2 to Ex. B at 11:14-16.
33. The courts' use of reliability has been highly inconsistent. Some of the Ninth Circuit's earlier cases decided hearsay admissibility on reliability alone. Miller, for example, allowed in unauthenticated, but unrefuted, copies of court file contents, declaring them reliable without further discussion. Miller, 514 F.2d 41. Simmons noted a line of cases, including Miller, which determined admissibility of evidence using the reliability rationale. Simmons, 812 F.2d at 564. Although the court in Simmons identified Morrissey and Gagnon as calling for a balancing of the defendant's right to confrontation against the government's good cause for denying it, it did not apply that test. The court affirmed the admission of certified hospital records on the basis of their traditional indicia of reliability. Id. at 564-65.
The Ninth Circuit next began applying the balancing test described in Simmons and treated reliability as an element of the good cause prong. See Martin, 984 F.2d at 312 (determining degree of good cause by looking to both the difficulty and expense of procuring witnesses and the traditional indicia of reliability of the proffered evidence). Walker reinforced the balancing test as a requirement but acted on the basis of reliability alone to find that admission without balancing was harmless error. The evidence at issue was solely a date and was unrefuted. Walker, 117 F.3d at 421.
The Comito decision followed, endorsing and developing the previously announced balancing test. Comito dictates considering reliability when assessing the confrontation right prong of the test:
Comito's interest in confronting Connell directly was further strengthened by the nature of the disputed hearsay evidence. Unsworn verbal allegations are, in general, the least reliable type of hearsay, and the particular utterances at issue here bore no particular indicia of reliability.... Because the hearsay evidence was important to the court's finding, and because it involved the least reliable form of hearsay, Comito's interest in asserting his right to confrontation is at its apogee.
Comito, 177 F.3d at 1171.
The only subsequent Ninth Circuit case on point that the parties have identified appears to use reliability three different ways at different points in the opinion. In Hall, the court first used reliability in determining the degree of the parolee's confrontation right. Hall, 419 F.3d at 988. Following Martin, the court then weighed reliability as one factor on the good cause side of the balance as well. Id. When summarizing that same section, however, the court seemed to say that reliability was a factor separate from good cause. Id. at 989. ("Although Hall had a strong interest in confronting Hawkins with regard to the false imprisonment charge, on balance, that interest is outweighed by the government's good cause for not producing Hawkins as a witness and the independent indicia of reliability that support Hawkins' statements to Officer Gross." (emphasis added))
34. Other, varied practices are evident in other circuits. The Second Circuit seems to add reliability to the balancing test, weighing both reliability and good cause against the right to confrontation (unless the evidence has already come in under a hearsay exception, as discussed above). See United States v. Chin, 224 F.3d 121, 124 (2d Cir.2000); accord Aspinall, 389 F.3d at 343; accord Williams, 443 F.3d at 45.
35. The cases that indicate that reliability alone suffices for admission are the United States Supreme Court cases whose validity has been called into question by Crawford; Seventh, Second, and Fourth circuit cases; and California state cases. See, e.g., Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); United States v. Jones, 299 F.3d 103 (2d Cir.2002); Prellwitz v. Berg, 578 F.2d 190 (7th Cir.1978); United States v. McCallum, 677 F.2d 1024, 1026-27 (4th Cir), cert, denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d WO (1982); People v. Maki (1985) 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P-2d 743; People v. Abrams, 158 Cal. App.4th 396, 69 Cal.Rptr.3d 742 (2007).
36. Comito established its balancing test after the cases in which reliability was used as the sole basis for admission, save two California Court of Appeal cases. Given that the Ninth Circuit initially used a reliability approach, and then adopted a multifactorial test throughout the 1990s, it is reasonable to assume that the Ninth Circuit deemed reliability, alone, an insufficient basis for admission. Indeed, in Comito, the court rejected the argument that reliability was enough on its facts, given the defendant's heightened confrontation interest:
The Government also argues that, even absent a showing of difficulty in obtaining Connell's testimony, the hearsay evidence bears sufficient indicia of reliability, by virtue of the other testimony and evidence presented at the hearing, to make it admissible. Given the substantial nature of Comito's interest in confrontation and the absence of good cause for the Government's failure to produce the adverse witness, the supporting or corroborative evidence noted by the Government cannot suffice to deprive Comito of his constitutional right to confrontation.
Comito, 177 F.3d at 1172. Martin, likewise, used very strong language in rejecting the sole reliance on reliability on its facts:
In essence, the government urges us to hold that urinalysis reports are so inherently reliable that they may be introduced in any revocation hearing.... such a blanket rule would be tantamount to abandonment of the Simmons balancing test; we would effectively hold that the' weight of the defendant's right to confrontation is irrelevant in revocations involving urinalyses ...
Martin, 984 F.2d at 313. Hall, too, followed Martin's rejection of a blanket rule based on reliability when the court analyzed the second charge against the defendant. Hall, 419 F.3d at 988. The court added that, even when the evidence in question was reliable and corroborated, the defendant's "strong interest in confrontation is somewhat lessened by the reliability of the hearsay evidence, but it is not defeated" and completed the balancing test. Id. Thus, the most recent Ninth Circuit cases all identify circumstances in which reliability alone is insufficient, illustrating the need for a balancing test.

Conclusion as to hearsay exceptions

37. The existing case law does not provide sufficient reason for varying from established precedent. The Ninth Circuit cases support the continued use of the Comito test and do not provide a clear path toward treating hearsay exceptions differently. Persuasive authority varies substantially from the Ninth Circuit's reasoning in ways that the Ninth Circuit, through its writings, seems disinclined to adopt. See, e.g., Martin, 984 F.2d at 313-314; Comito, 111 F.3d at 1170.
The Comito balancing test serves all necessary purposes well. It serves administrative flexibility, one of the primary goals of the revocation proceedings jurisprudence. It recognizes that hearsay exceptions have an important role in admission decisions, by increasing reliability and reducing the weight of the parolee's interest in the balance. It helps ensure that revocation decisions are based on verified facts, to both the parolees' and the State's benefit. Use of the test does not give parolees more rights than criminal defendants who are protected by the rules of evidence, the Confrontation Clause, and other guarantees not afforded to parolees. Without any mandate arising from the case law, any change would be within this Court's discretion. The Court should opt to retain the existing standard set forth in Comito.
In fact, per se admission based on hearsay exceptions would likely have unintended deleterious effects on justice, predictability, and administrative flexibility. Those cases favoring the categorical admission based on hearsay exceptions involved supervised release and probation revocation decisions that were made by judges. See, e.g., Williams, 443 F.3d 35; Jones, 299 F.3d 103; Aspinall, 389 F.3d 332; Hall, 419 F.3d 980. "Fewer than half of Defendants' hearing officers (Deputy Commissioners) are lawyers. Ex. B at 81:1-21. The record shows that some of Defendants' staff, the Special Master, and observers already perceive confusion and unreasonable variability in the application of the existing balancing test. Findings of Fact, supra, 119-16. To introduce, as new concepts, the nuances of hearsay exceptions and all of their conditions, and to require facility in applying those tests as well as the Comito balancing testincluding recognizing and managing hearsay that requires balancing that exists within evidence admissible under an exceptionis an invitation to worsening predictable outcomes consistent with due process, not to mention undermining the administrative ease and flexibility meant to attach to these less formal proceedings.

III. Corroboration for hearsay
38. In applying the balancing test, corroboration may increase reliability for proffered hearsay. Defendants argue that various types of proffered evidence may serve as corroboration, including other hearsay; Plaintiffs disagree. Ex. 2 to Ex. B at 9:26-28.
39. While neither party offers federal authority directly on point, Defendants cite Hall and Comito as examples where hearsay was used to corroborate other hearsay, suggesting implicit endorsement of the practice. Ex. 2 to Ex. B at 10:2-4.
In Hall, the court analyzed separately the alleged victim's unsworn statements concerning a domestic violence allegation and a false imprisonment violation. Hall, 419 F.3d at 986-89. Because the government's good cause was found to outweigh the defendant's interest in confronting the hearsay offered on the first charge, the evidence was admitted. Id. at 987. The court then considered corroboration for the hearsay offered on the second charge. The corroboration took the form of: the hearsay statements on the first charge that were admissible by virtue of surviving the Comito balancing test, four pieces of testimony based on direct observations, defendant's admissions, and four pieces of testimony recounting the alleged victim's unsworn verbal allegations to those witnesses. Id. at 988. Thus, the court used both hearsay and nonhearsay evidence to corroborate the hearsay at issue; it did not discuss the differences between the types of corroboration, nor did it rule on what types are permissible.
In Comito, the court examined whether nonhearsay and hearsay evidence supported the charge; the court did not consider whether the corroborating evidence should make the contested piece of hearsay admissible. Comito, 177 F.3d at 1168-69. In fact, it noted:
[w]hile the additional evidence may also be subject in whole or in part to valid objections based on hearsay and Comito's right to confrontation, those challenges are not raised before us.
Id. at 1169. This dictum emphasizes that the court was only working with the record before it; the gratuitous inclusion suggests that the court might not otherwise have admitted or used that hearsay. This court also did not rule on what types of corroboration are permissible.
40. There are also persuasive California state cases that may be useful to consider. The California Supreme Court considered corroborating evidence while applying a test similar to that employed in Comito. In People v. Arreola (2004) 7 Cal.4th 1144, 31 Cal.Rptr.2d 631, 875 P.2d 736, the California Supreme Court specified that corroborating evidence must itself be admissible:
Thus, in determining the admissibility of the evidence on a case-by-case basis, the showing of good cause that has been made must be considered together with other circumstances relevant to the issue, including ... whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony...
Arreola, 7 Cal.4th at 1160, 31 Cal.Rptr.2d 631, 875 P.2d 736 (emphasis added).
Similarly, one California appeals court ruled against California's Board of Parole Hearings in a challenge to the exact practice the Board now proposes. See In re Miller, 145 Cal.App.4th 1228, 52 Cal. Rptr.3d 256 (2006). In Miller, to corroborate the alleged victim's unsworn verbal statements to a law enforcement officer, the State offered hearsay statements of third-party witnesses and an uncertified medical report containing further unsworn statements by the alleged victim. Id. at 1238, 52 Cal.Rptr.3d 256. The court rejected this, writing:
adopting such a criterion would eviscerate the need to provide indicia of reliability before hearsay evidence is received. Were this standard adopted, unreliable hearsay evidence could become reliable simply by attributing the evidence to several sources.
Id.
41. While the cases concerning corroboration raise uncertainties, on balance, it appears that these courts expect corroboration to come from competent evidence. This is certainly consistent with traditions, and the Special Master recommends a ruling that corroboration may only be drawn from admissible evidence, which may include hearsay that has survived its own Comito balancing test analysis.

IV. Continuing hearings beyond the Valdivia deadline
42. Plaintiffs allege that Defendants sometimes respond to a confrontation rights objection by postponing the hearing beyond the deadline prescribed by the Permanent Injunction, as an opportunity to provide more competent evidence. Ex. 1 to Ex. B at 19:9-24. It is undisputed that this practice occurs, though Defendants take the position that seeking further evidence for this reason can constitute good cause for exceeding the deadline. Ex. B at 92:4-8. Plaintiffs provided the revocation hearing record of a case in illustration. See supra, at 858. The record contains no further evidence of the potential frequency or impact of such a practice. Ex. B at 37:7-40:21. Neither party provided authority for their positions.
43. There is merit to the arguments that a parolee has a right to expect a final hearing within 35 days, as required by Paragraph 22 of the Permanent Injunction, and that the State must meet or fail in its burden by that time, absent unforeseeable events. However, there is not sufficient evidence in the record to support a court order, so the Special Master does not recommend one.

V. Representation for writs of habeas corpus
44. Plaintiffs take the position that, in order to enforce confrontation rights, parolees should have representation available for writs of habeas corpus. Ex. 1 to Ex. B at 20:22-21:3. Plaintiffs assert that Defendants should be required to fund this representation because the complexity of the issues necessarily carries the risk of error, implementation has been problematic long-term, and the rights at stake are critical. Ex. B at 79:16-80:25; Ex. 1 to Ex. B at 20:15-21:16.
Plaintiffs note that Defendants committed to funding writ representation as to one other potential violation of the Permanent Injunction, designation of confidential information. Ex. 1 to Ex. B at 21:3-5. Appellate representation is not funded for any other Permanent Injunction provision, so this would be a significant departure from current practice and a substantial increase in Defendants' obligations. The risk of harm to individuals whose confrontation rights are denied unreasonably is, without a doubt, significant. Were those parolees entirely without a remedy, we would face a different situation, but they do have the remedy of writs of habeas corpus. It is likely that many parolees' lack of sophistication and resources hinder effective use of this system. But the parties did not present any authority compelling Defendants to take responsibility for counteracting this, or any reason to believe that the proposed funding would not be better spent on an internal system to identify and rectify these problems directly. The Special Master recommends denying the request for an order requiring Defendants to fund such representation.
RECOMMENDATIONS
A. Defendants distributed policies and procedures as required by the relevant provision of the Permanent Injunction. Defendants provide some instruction on applying the legal standards and exercise some oversight. When Defendants took a position that their obligations had changed, it was based on a good faith interpretation of the case law. It appears that they have not instructed Deputy Commissioners to vary from Comito balancing. They negotiated policy revisions in good faith and sought clarification of the legal standards before proceeding further in negotiations. Therefore,
 The Court should not find a violation of the Permanent Injunction.
B. Nevertheless, Defendants have not demonstrated that they are in compliance with Paragraph 24 of the Permanent Injunction. Confusion, inconsistency, incorrect application of standards, and failure to apply the required tests have been known for a prolonged period. Yet Defendants have taken no action to identify the scope of the problem and have not taken adequate steps to address the conditions that perpetuate potential misapplications of the law.
Those conditions include the fact that some hearing officers have little experience in the law, training has been limited, policies and procedures contain inaccurate statements of applicable law, and Defendants have not subsequently assessed Deputy Commissioners' understanding nor provided detailed standards, guidelines, or tools to support decision-making.
Failures in evidentiary decisions carry a high risk of harm, including the denial of due process and denial of liberty without evidence adequate to meet the State's burden of proof. Defendants have not demonstrated the capacity to independently remedy these deficiencies. Therefore the Court should order:
1. The parties must undertake forthwith, and sustain, efforts to revise policies and procedures, including guidelines and standards, that incorporate these principles:
 Decisions about whether to admit proffered hearsay must be made on case-by-case basis. The weight accorded the balancing test factors, contested evidence, and supporting evidence will vary with facts and circumstances.
 Parolees have a right to confront and cross-examine adverse witnesses unless the Deputy Commissioner specifically finds good cause for not allowing confrontation; these two factors must be weighed against each other.
 The principal factors in assessing the weight of a parolee's confrontation interest are (1) the importance of the proffered evidence to the ultimate finding and (2) the nature of the facts to be proven by the proffered evidence, which tends to be treated as an assessment of reliability.
 The parolee's interest in confronting the contested evidence is high if the evidence will be important to the ultimate finding or if the evidence is potentially unreliable.
 If the proffered evidence would be admitted in civil or criminal proceedings under a hearsay exception, this increases its reliability and makes it more likely to be admitted because the parolee's interest is lessened.
 If nonhearsay evidence corroborates the proffered hearsay, this also increases reliability and makes the hearsay more likely to be admitted. Hearsay cannot be used to corroborate proffered hearsay unless it, too, survives a Comito balancing test.
 The severity of the penalty a parolee faces is also a factor that could affect his confrontation interest.
 The Deputy Commissioner must assess the good cause for the witness not testifying. This includes, at least, inquiring into the efforts made to have the witness attend, whether attendance is difficult, or expensive, and whether the witness is a confidential informant whose identity is unknown to the parolee.
 Reliability of the hearsay is not a factor in determining whether the state had good cause not to produce a witness.
 Deputy Commissioners may also take into account other factors on either side of the balancing.
 The final decision whether to admit the proffered hearsay is reached by comparing the strength of the parolee's interest concerning this particular evidence to the staters good cause and determining which outweighs the other.
2. Defendants must provide a plan, within (id.) days after policies and procedures have been negotiated, that contains the following components:
 Training must be provided to Deputy Commissioners, to parole agents and such other Division of Adult Parole Operations staff as Defendants believe are appropriate, and to attorneys representing parolees in revocation proceedings.
 Plans for initial training should give serious consideration to contracting for the services of professional trainer with experience in evidentiary law and/or administrative proceedings willing to adopt curriculum that results from the parties' efforts. If Defendants propose not to employ this method, they must provide a detailed description of enhanced training that will be as rigorous as training that would be provided under such a contract, and the Special Master must approve such a proposal.
 Plans for initial training must include expeditious timelines for delivering the training and must identify the amount and source of funding necessary to carry it out.
 Continuing education on applying the legal standards concerning confrontation rights to revocation proceedings must be provided, annually at a minimum, for all of the above-described staff and contract attorneys.
 Deputy Commissioners must meet minimum standards in order to conduct the complex task of revocation hearings. Defendants' plan must define those minimum standards; the methods by which Defendants will determine whether Deputy Commissioners have met the standards; and the methods by which Defendants will determine whether Deputy Commissioners conducting revocation hearings continue to meet the standards, assessed at regular intervals and, at a minimum, annually.
O Defendants' plan must include conducting a qualitative assessment, at regular intervals, of whether Deputy Commissioners are applying the standards within an acceptable range of discretion. This effort should include at least these components:
 Develop, either internally or in conjunction with the administrators of the attorney panel representing parolees in revocation proceedings, an information system solution to support assessments. That system must capture information sufficient for Defendants to conduct systematic examinations of substantive due process questions. It must also permit aggregate analysis, identification of trends, sorting and reporting by relevant factors, and individual case analysis.
 For each Deputy Commissioner conducting revocation hearings, Defendants' reviewers must observe him or her in those hearings at least twice annually.
 The assessment must include an examination of what further training or remediation is needed for an individual or for staff more generally. That training should be provided expeditiously.
 A system of remediation must include following the CDCR progressive discipline system. It should emphasize further training and counseling to develop an individual's skills, and make use of letters of instruction and further methods when necessary.
 Any components of this plan that can practically be implemented independently must be implemented shortly after the parties reach agreement. They must not be held in abeyance pending completion of the full plans required under these orders.
 Development of these policies, procedures, training, and plans shall proceed under the guidance of the Special Master. The Special Master or a Deputy Special Master shall lead negotiation sessions. Alternatively, the parties may agree to negotiate in the absence of the Special Master and provide monthly progress updates, unless and until the Special Master determines that progress is unsatisfactory under this arrangement, at which time the Special Master would become involved in the negotiations.
C. No order is warranted concerning deferring hearings to obtain more competent evidence.
D. Representation for appeals is not required under the Permanent Injunction and is funded for only one type of potential violation. While Defendants' practices concerning confrontation rights are deficient and do not appear remediable without further Court oversight. Defendants have proceeded in good faith and there is no evidence that deficiencies are so egregious that they cannot be addressed without first attempting the remedies ordered above.
 Plaintiffs' request to require the state to fund representation for writs of habeas corpus challenging decisions to admit contested evidence should be denied.
Feb. 8, 2008.































































































































































































































































NOTES
[1]  The plaintiffs also request the court modify the Report to state that the denial of plaintiffs' motions are made without prejudice. It appears that this is apparent by the language employed by the Special Master and that such modification is unnecessary.
[1]  To the extent that any portions of Ex. Sealed have not been authenticated, the Special Master takes judicial notice of the transcript under Federal Rule of Evidence 201.
[2]  To the extent that any portions of Ex. Sealed have not been authenticated, the Special Master takes judicial notice of the transcript under Federal Rule of Evidence 201.
