Whether the judge in a probation revocation hearing properly relied on a videotape of a four-year-old girl in revoking the defendant’s probation, even though she later recanted her testimony.

The defendant’s probation was revoked after his four-year-old granddaughter reported that he had touched her sexually. The Commonwealth submitted hearsay evidence of the child’s report, including most significantly a videotaped interview of the child conducted several days after the incident. The defendant submitted the report of a private investigator, who claimed that the child had recanted her story in his presence, and had also previously done so with her father and mother.

The judge found that the videotaped interview was credible, and revoked the defendant’s probation for a previous (apparently non-sexual) conviction. The Commonwealth later dropped charges against the defendant, on the grounds that the parents reported that the child had recanted, and refused to grant the Commonwealth access to interview her. The defendant moved for reconsideration of the probation revocation, and was denied.

The defendant failed to appeal either the revocation or reconsideration in a timely manner. He then filed a motion for new trial, arguing that his counsel had been ineffective in failing to appeal.

1. Availability of review. In general, a defendant may appeal probation revocation only through timely appeal or motion for reconsideration. Commonwealth v. Ferguson, 63 Mass. App. Ct. 909, 910 (2005). The defendant argues, however, that ineffective assistance of counsel in filing the appeal justifies review; his counsel ignored his request to appeal, and thus was ineffective per se. The Commonwealth does not seriously contest the issue, but argues that no appeal would have been successful — a question that turns on the next points.
2. Reliability of Hearsay. Hearsay is admissible in probation revocation proceedings where it bears substantial indicia of reliability. The defendant argues that this hearsay was not reliable because (1) the judge did not make the findings required in G.L. c. 233, § 81; (2) there was no indication that the child knew the difference between truth and lying, or the significance of her statements; (3) the statements were directly contradicted by the child’s later recantations; and (4) elements of the videotape itself were unreliable, such as leading questions and sing-song answers. The Commonwealth responds that G.L. c. 233, § 81 is not the standard for admission of hearsay, that the video itself is not as unreliable as the defendant would have it, and that it was up to the judge to weigh it against contradictory evidence.
3. Reconsideration following nolle prosequi. The SJC, in its request for amicus briefs, asked “whether the defendant’s motion for a new hearing on the probation revocation was correctly denied after the Commonwealth filed a nolle prosequi on the indecent assault charge that was the basis for the revocation.” In the request for reconsideration, the defendant argued that the nolle prosequi deprived the judge of jurisdiction to hear the revocation, which was founded on the issuance of a criminal complaint. The defendant does not raise that argument in his main or reply brief, and it appears to be waived.

This is on first blush a troubling case, where the defendant’s probation was revoked on the basis of an allegation that was later recanted, and a criminal charge that was later dropped. However, on further examination of the available materials it seems much less remarkable — the Commonwealth presented strong evidence of the child’s allegation, the defendant presented weaker evidence of recantation, and the judge performed her customary duty in weighing the evidence.

The Court will have to make new law to the extent that it decides whether review is available by motion for new trial, after defense counsel fails to appeal from a probation revocation. Although it is difficult to see why review should not be available, and the Commonwealth does not present a reason, the Court may simply avoid the issue by ruling that no such appeal would have been availing.