The Supreme Court ruled long ago that a defendant in probation or parole revocation proceedings had due process rights that would include the "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471 (1972). The Court admonished that the process right was not static, fixed or categorical: "It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands ... not all situations calling for procedural safeguards call for the same kind of procedure." The various circuits have all recognized that the Morrissey due process rights apply in supervised release revocation proceedings and are codified at Fed.R.Crim.Pro. 32.1.
So Morrissey sets a general rule but really how far does it go for a defendant facing revocation of supervised release. There is not a lot of caselaw out there that puts, so to speak, any meat on the bones. Perhaps the best articulation comes from the Ninth Circuit in United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993): "We construe that right as requiring that a supervised releasee receive a fair and meaningful opportunity to refute or impeach the evidence against him in order 'to assure that the finding of a [supervised release] violation will be based on verified facts.'" In Martin, the Ninth Circuit vacated a supervised release revocation because the district court denied the defendant's request that his urine sample be retested.
The Seventh Circuit in United States v. Pierre, 47 F.3d 241 (7th Cir. 1995), and the Fifth Circuit in United States v. McCormick, 54 F.3d 214 (5th Cir. 1995), both indicated that a defendant "is entitled to go beneath the surface of written reports." Both courts indicated that defendants could and should seek information and documentation regarding a lab's error rates, efforts to improve procedures and other information bearing on the reliability and accuracy of the reports they produce.
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