EX PARTE ZUBIATE v. << (2025)

OPINION

This is a case about the right to confrontation in a parole-revocation hearing where the witnesses testified via Zoom.

A jury convicted Applicant of aggravated assault and sentenced him to twelve years in prison. He was eventually released on parole, but his parole was revoked after two hearings where witnesses testified via Zoom over his objections. He argues that the Zoom hearings violated his Sixth Amendment right to confrontation and that the Sixth Amendment right to confrontation is the same as his due process right. We hold otherwise because the Sixth Amendment does not apply to parole hearings, and his due process right to confrontation was fulfilled by the Zoom hearing.

I. Sixth Amendment Confrontation Clause

The Sixth Amendment's Confrontation Clause says, “In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him[.]” U.S. Const. amend. VI. It “is basically a trial right[,]” Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), that is “essential to a fair trial in a criminal prosecution.” Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). It is “a ‘functional’ right designed to promote reliability in the truth-finding functions of a criminal trial.” Kentucky v. Stincer, 482 U.S. 730, 737, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). It did not apply here for three reasons: parole hearings are not “criminal prosecutions,” a parolee is not an “accused,” and witnesses who testify in such hearings are not “against” the parolee.

First, parole hearings are not criminal prosecutions because they arise after conviction. The Sixth Amendment right to confrontation comes into play at “the initiation of criminal proceedings[.]” S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984). And it goes out of play after trial. See Betterman v. Montana, 578 U.S. 437, 439, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016) (holding that the Sixth Amendment right to speedy trial does not apply after conviction or guilty plea). Parole revocation comes after trial and deprives a person “only of conditional liberty” and so “is not part of a criminal prosecution[.]” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Second, a parolee is not an “accused” because that is “a status preceding ‘convicted.’ ” Betterman, 578 U.S. at 443, 136 S.Ct. 1609. Before conviction, “the accused is shielded by the presumption of innocence[.]” Id. at 442, 136 S.Ct. 1609. A “major reason” for the Confrontation Clause is “to give a defendant charged with a crime an opportunity to cross-examine the witnesses against him.” Pointer, 380 U.S. at 406-407, 85 S.Ct. 1065. Witnesses who testify “after guilt is established are not accusers within the meaning of the confrontation clause.” United States v. Fields, 483 F.3d 313, 332 (5th Cir. 2007) (quoting United States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 546 U.S. 1024, 126 S.Ct. 671, 163 L.Ed.2d 541 (2005)). A parolee facing revocation has already been convicted and sentenced, and he enjoys only conditional liberty, so, he is not an “accused.”

Third, parole-hearing witnesses are not “against” a defendant because their testimony is not used to convict. A witness is usually regarded as “ ‘against’ a defendant for purposes of the Confrontation Clause only if his testimony is part of the body of evidence that a jury may consider in assessing his guilt.” Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). For example, forensic analysts testifying by affidavit in a drug trial “provided testimony against” the defendant because they proved a “fact necessary for his conviction—that the substance he possessed was cocaine.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Parole-revocation witness testimony, however, is not offered to convict, and so those witnesses are not “against” the parolee.

The Sixth Amendment did not apply to Applicant's parole revocation hearing.

But Applicant argues that his due process right to confrontation matches his Sixth Amendment right and that he was entitled to in-person confrontation of the witnesses at his parole revocation hearings. He does not claim that Zoom malfunctioned or that, for example, he could not see or hear the witnesses, and he concedes that his attorney cross-examined them. He complains only about the lack of in-person confrontation, and he equates that lack with a complete denial of confrontation.

II. Due Process

The Fourteenth Amendment's Due Process Clause says, “nor shall any State deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. Amend XIV § 1. Due process is flexible and situational. Morrissey, 408 U.S. at 481, 92 S.Ct. 2593. It does not mean “ideal.” Snyder v. Massachusetts, 291 U.S. 97, 116-17, 54 S.Ct. 330, 78 L.Ed. 674 (1934). It is not offended merely “because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.” Id. at 105, 54 S.Ct. 330. “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute, concept. It is fairness with reference to particular conditions or particular results.” Id. at 116, 54 S.Ct. 330.

Due process affords the States “wide latitude” in designing parole-revocation proceedings. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). Such hearings are not subject to the “full panoply of rights” attendant to criminal trials. Morrissey, 408 U.S. at 488-89, 92 S.Ct. 2593. They address “a narrow inquiry” and “should be flexible enough to [allow consideration of] evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Id. at 489, 92 S.Ct. 2593. States may also develop “other creative solutions to the practical difficulties of the Morrissey requirements.” Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Compared with the Confrontation Clause, due process offers a limited right to confront witnesses in parole hearings. U.S. v. Harris, 112 F.4th 624, 627 (8th Cir. 2024); U.S. v. Lloyd, 566 F.3d 341, 343 (3d Cir. 2009).

Applicant complains that the witnesses’ appearance via Zoom deprived him of his right to confront them. But he did confront and cross-examine the witnesses, just not in his preferred way—in person. He asserts that Morrissey required good cause for allowing the witnesses to testify remotely. See Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. But that passage requires good cause for denying confrontation; it does not require good cause for allowing less-than-ideal confrontation. He argues that in-person confrontation is more effective than confrontation via videoconference, but even assuming that to be so, it does not show that his due process right to confrontation was violated. See Snyder, 291 U.S. at 116-17, 54 S.Ct. 330 (noting that due process does not demand “ideal” process). As far as the record shows, he could see, hear, and cross-examine the witnesses in real time, so his due process right to confront the witnesses was honored. See Wilkins v. Timmerman-Cooper, 512 F.3d 768, 776 (6th Cir. 2008) (upholding conclusion that testimony in revocation hearing held via videoconference was functional equivalent of live testimony). We agree with the State that parole-revocation hearings held via Zoom are a creative solution that may address the practical difficulties of meeting Morrissey’s requirements. See Scarpelli, 411 U.S. at 782 n.5, 93 S.Ct. 1756.

III. Conclusion

The Sixth Amendment did not apply to Applicant's parole revocation hearings, and his limited due process right to confront the witnesses in those hearings was honored by their appearance via Zoom. Accordingly, we deny relief.

This case is about using Zoom for witness testimony at a parole revocation hearing. I agree with the Court and Judge Walker that Applicant, Leroy Hilbert Zubiate, is not entitled to habeas relief given the nature of parole revocation hearings. The United States Supreme Court has already held that the Sixth Amendment right to confront witnesses applies to “criminal prosecutions” not parole revocations.¹ So to the extent that he's now claiming that the process used violates his Sixth Amendment right to confront witnesses, his complaint fails under binding United States Supreme Court precedent. It is enough to simply say that the full panoply of rights due a defendant in such a criminal proceeding does not apply to parole revocations as the United States Supreme Court has already said.² There is no reason to embellish the Court's legal analysis further with cases involving other applications of the Sixth Amendment in other types of proceedings.³ Rather than try to inflate the value and reach of an otherwise routine case, we should just rely upon Morrissey instead of trying to walk needlessly through wet cement. With these thoughts, I concur in the judgment only.

CONCURRING OPINION

I agree with the Court's decision to deny habeas relief to Applicant Leroy Hilbert Zubiate. His rights to confront the witnesses against him, under the Sixth Amendment's Confrontation Clause, and also under the Fourteenth Amendment's Due Process Clause, were not violated when witnesses provided testimony at Applicant's parole revocation remotely using Zoom. As the Court makes clear,¹ the Sixth Amendment applies only to “criminal prosecutions.” U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ․[.]”). And “the revocation of parole is not part of a criminal prosecution․ Parole arises after the end of the criminal prosecution[.]” Morrisey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

However, I write separately, first, to note that the Court needn't have gone on to add that Applicant, accused of some violation of the terms of his parole release, was not an “accused” within the meaning of the Sixth Amendment.² Nor was there any need to add that the witnesses providing testimony against him that would send him back to prison, were not witnesses “against” him within the meaning of the amendment.³ Whether Applicant is an “accused” and whether the witnesses were “against” him under the Sixth Amendment are moot points; the Sixth Amendment does not apply anyway. See Morrisey, 408 U.S. at 480, 92 S.Ct. 2593 (“the revocation of parole is not part of a criminal prosecution.”).

Second, with regard to Section II of the Court's opinion, I agree, in principle, that “less-than-ideal confrontation” does not necessarily violate the due process-based right to confrontation.⁴ It is true that the Supreme Court has said that “[t]he due process clause does not” require “ideal systems for the administration of justice.” Snyder v. Massachusetts, 291 U.S. 97, 116–17, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (quoting Ownbey v. Morgan, 256 U.S. 94, 110–11, 41 S.Ct. 433, 65 L.Ed. 837 (1921)). But that does not mean the due process clause is offended by “more-ideal” or “closer-to-ideal.”

Due process, in the context of a parole revocation, “need[s] an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior.” Morrisey, 408 U.S. at 484, 92 S.Ct. 2593. Having everybody—the parties, the parole hearing officer, and the witnesses—together for the parole hearing, live and in person, is better at providing “verified facts” and “accurate knowledge” than Zoom.

As the Supreme Court explained in Maryland v. Craig, “[t]he combined effect of [the] elements of confrontation—physical presence, oath, cross-examination, and observation of demeanor by the trier of fact ․ ensur[es] that evidence admitted ․ is reliable and subject to the rigorous adversarial testing that is the norm of Anglo–American criminal proceedings.” 497 U.S. 836, 846, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (emphasis added). “Although face-to-face confrontation ․ is not the sine qua non of the confrontation right[,]” id. at 847, 110 S.Ct. 3157, the Supreme Court has “recognized ․ that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person.” Id. at 846, 110 S.Ct. 3157. Indeed:

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.” ․ It is always more difficult to tell a lie about a person “to his face” than “behind his back.” In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss the right to cross-examine the accuser; both “ensur[e] the integrity of the fact-finding process.” ․ The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential “trauma” that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.

Coy v. Iowa, 487 U.S. 1012, 1019–20, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (internal citations omitted).

In contrast, having witnesses appear by Zoom loses the edge that face-to-face confrontation has in enhancing accuracy. It removes one of the “elements of confrontation—physical presence,” recognized in Craig. See Craig, 497 U.S. at 846, 110 S.Ct. 3157. While removing one leg of that stool does not necessarily mean the evidence admitted is no longer reliable and not subject to rigorous adversarial testing, it does handicap the factfinding process. While it has been several years since I have conducted direct or cross-examination of a witness, there is no doubt in my mind that Zoom testimony is simply worse than face-to-face testimony. Of course, I cannot speak for all of my colleagues, and I understand that my tolerance for Zoom's downsides may be less than theirs, but I do not think that any of them would suggest that Zoom provides an equivalent experience to live, in-person proceedings.

Even if Zoom videoconferencing can meet the minimum requirements of due process, the Court's opinion today should not be a signal to parole hearing officers that they should be content with the bare minimum. We should strive to achieve the ideal whenever and wherever possible. I would encourage parole hearing officers to try for better. They should not use Zoom and other tele-and videoconferencing options simply because they are available. There should be in-person, face-to-face proceedings to the extent practicable, giving life to the high ideals of the framers who proclaimed that no person shall be deprived of life, liberty, or property, without due process of law.

With these thoughts, I concur in the judgment of the Court.

FOOTNOTES

1.   Morrisey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

2.   Id.

3.   By way of example, I see no need to consider the application of speedy trial rights post-conviction. Maj. Op. at 2 (citing Betterman v. Montana, 578 U.S. 437, 439, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016) (the Sixth Amendment right to a speedy trial does not apply after a conviction or guilty plea)). Nor is it necessary to address the question of what a witness is or is not. Maj. Op. at 3 (citing Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) (recognizing that the principle that “a witness whose testimony is introduced in a joint trial with the limited instruction that it be used only to assess the guilt of one of the defendants will not be considered a witness ‘against’ the other defendants” does not apply to “validate, under the Confrontation Clause, introduction of a non-testifying codefendant's confession implicating the defendant, with instructions that the jury should disregard the confession insofar as its consideration of the defendant's guilt is concerned”)).

1.   Majority op. at 2.

2.   Majority op. at 3 (citing Betterman v. Montana, 578 U.S. 437, 443, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016); Pointer v. Texas, 380 U.S. 400, 406–07, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); and United States v. Fields, 483 F.3d 313, 328 (5th Cir. 2007)).

3.   Majority op. at 3 (citing Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987); and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)).

4.   Majority op. at 5.

Keel, J., delivered the opinion of the Court in which Schenck, P.J., and Yeary, McClure, Finley, and Parker, JJ., joined.

Newell, J., filed a concurring opinion in which Walker, J., joined. Walker, J., filed a concurring opinion in which Newell, J., joined. Richardson, J., concurred.