Discovery Obligations and Witness Disclosures

(1) Board's Discovery Obligations. (a) At the same time the Board notifies the sex offender of the arrangements for their classification hearing pursuant to 803 CMR 1.10, the Board shall also provide the sex offender with a copy of all evidence contained in the classification file that was considered by the board member in making the preliminary recommendation. Administrative documents pertaining to registration and other administrative correspondence are not considered evidence for classification purposes but will be provided upon request. (b) No later than ten calendar days before the scheduled hearing, the Board shall send to the sex offender, or the sex offender's authorized representative, a copy of any additional documents the Board intends to introduce into evidence at the classification hearing. (c) A Board employee shall redact data from Board's discovery documents that are deemed to be privileged, confidential, investigatory, intelligence information, or information that identifies a victim. Such redacted data shall not: be introduced into evidence; be communicated to the hearing examiner; or become part of the record. (2) Sex Offender's Discovery Obligations. No later than ten calendar days before the scheduled hearing, the offender shall provide copies of all documents the sex offender intends to introduce as evidence at the classification hearing to the Board. (3) Witnesses. No later than ten calendar days before the scheduled hearing, each party shall provide the Board's Hearings Unit with a complete witness list. A witness list is not complete unless it includes all of the following information for each witness: the name, address, date of birth, and relationship to the offender (e.g., family member, therapist, Expert Witness, etc.). The hearing examiner may exclude the testimony of any witness not properly identified on the witness list. The failure to provide sufficient information may result in a witness being denied entry into correctional facilities. (4) The hearing examiner may permit a party to supplement or amend a witness list no later than five calendar days prior to the scheduled hearing date only if the moving party provides good cause for the additional time. (5) Expert Witnesses. (a) If a party intends to rely on the opinion of an Expert Witness at the classification hearing, a report or a written substantive summary of the Expert Witness's anticipated testimony must be provided to the other party at least ten calendar days prior to the scheduled hearing date. This report or summary must include the name of each Expert Witness who is anticipated to testify, the subject matter of such testimony, and the substance of the facts and opinions of the anticipated testimony. The party intending to rely on an Expert Witness shall provide any documents regarding the sex offender the Expert Witness relied upon in reaching their opinion. Any literature an Expert Witness relied upon in reaching their opinion should be produced if requested by the parties. The party shall also provide the curriculum vitae of the Expert Witness. (b) Failure to comply with 803 CMR 1.17(5)(a) will result in the exclusion of an Expert Witness's report and testimony from evidence. (c) At the classification hearing, a party shall be permitted to introduce into evidence an Expert Witness's written report, including the Expert Witness's opinion as to the offender's risk of re-offense and/or dangerousness, only if the author of the report is called to testify at the hearing and is otherwise qualified as an expert in the area that they are being called to testify. The failure to call the Expert Witness to testify at the hearing will result in the exclusion of any opinion as to the sex offender's risk of re-offense or degree of dangerousness within the Expert Witness's report. (d) Board's Intention to Rely on Expert Witness at Hearing. Pursuant to M.G.L. c. 6, § 178L, in any case where the Board intends to rely on the testimony or report of an Expert Witness, as defined in 803 CMR 1.03, the Board shall notify the sex offender or the sex offender's authorized representative of this intention. In the event that the Board intends to rely on an Expert Witness and the sex offender has been found to be indigent, the Board shall notify the offender or the sex offender's authorized representative that they may apply for and the Board may grant the payment of fees for an Expert Witness.