Proceedings in Formal Disciplinary Matters: Notice and Scheduling of Hearing Before a Hearing

Officer (1) Within two business days of the Disciplinary Officer or a designee assigning offenses to the disciplinary report, a copy of the disciplinary report, a notice of hearing, a request for representation/witness form and a request for evidence form, shall be served upon the inmate by the Disciplinary Officer or a designee. Automatic discovery shall ordinarily be served on the inmate at this time, but not less than 48 hours before the hearing. Automatic discovery includes: (a) copies of incident reports concerning the incident alleged to have occurred in the disciplinary report; (b) copies of, or access to, all exculpatory evidence; (c) copies of, or access to, all documentary, photographic, audio, or videographic evidence referred to in the disciplinary report or which the Disciplinary Officer intends to introduce at the hearing; (d) informant information checklist with applicable sections completed by the Disciplinary Officer; (e) In cases where the Disciplinary Officer determines restitution may be an appropriate sanction, the disciplinary officer shall provide the inmate with an itemized list of damages or costs associated with or resulting from the inmate's actions. (2) The Disciplinary Officer or designee shall approve or deny with good cause and in writing any requests made by the inmate for witnesses or evidence. This response shall be served on the inmate or his or her representative no less than 48 hours prior to the hearing. The factors that the Disciplinary Officer or designee may consider when ruling on these requests shall include, but not be limited to, the following: (a) relevance; (b) whether the evidence is cumulative or repetitive; (c) unavailability of the reporting staff person or other staff person for a prolonged period of time due to illness, authorized absence or for other good cause; (d) failure of the inmate to provide a sufficient offer of proof of the expected testimony of a proposed witness or the need for requested evidence. (3) The Disciplinary Officer shall schedule a hearing before a Hearing Officer within a reasonable time, but not less than 24 hours after the inmate has been served with both the disciplinary report and the notice specifying the date and time of the hearing. The Disciplinary Officer or Hearing Officer may continue a hearing. The inmate or, if applicable, his or her representative shall be given written notice of such continuance and the new date and time for the hearing. The inmate shall be entitled to one continuance for good cause provided that any request for a continuance must ordinarily be made at least 24 hours prior to the scheduled time of the hearing. Requests for continuances shall not be unreasonably denied. (4) An inmate may waive the right to 24 hours notice of the disciplinary hearing. An inmate may waive the right to appear before the Hearing Officer. Such waivers shall be appropriately documented. (5) An inmate may waive the right to a disciplinary hearing and enter a guilty plea or agree to a continuance without a finding pursuant to 103 CMR 430.26 before the Disciplinary Officer or Hearing Officer. If the inmate pleads guilty, the Disciplinary Officer or Hearing Officer shall conduct an interview with the inmate and may assess mitigating circumstances presented by the inmate. The Disciplinary Officer or Hearing Officer shall then recommend sanction(s) in accordance with 103 CMR 430.25. An inmate may appeal the sanction in accordance with 103 CMR 430.18. (6) If an inmate wishes to be represented in accordance with the provisions of 103 CMR 430.12(1) and (2), or if the inmate wishes to have the reporting staff person or other witnesses present in accordance with the provisions of 103 CMR 430.14(4) and (5), the inmate shall complete the request for representation and witness form and submit it to the Disciplinary Officer within 24 hours of receipt. The inmate must submit the request for evidence form within 24 hours of receipt. The inmate's unexcused failure to submit a request for representation and witness form or evidence form may, at the discretion of the Disciplinary Officer, constitute a waiver of the inmate's rights to call witnesses, request additional evidence, and to be represented at the hearing. However, such a failure to submit forms shall not deny the inmate automatic discovery. (7) Contraband evidence that is deemed to constitute a risk to the safety or security of the institution, its staff, inmates, or any participant in the hearing process shall not be presented at the hearing. The Disciplinary Officer or designee shall make reasonable attempts to supply the inmate with either photographs or photocopies of the evidence, unless the photographs or photocopies of the evidence would themselves be contraband or constitute a security risk (for example, pornography). Attorneys or law students who represent the inmate, may request in writing, to view contraband evidence prior to the hearing by notifying the Disciplinary Officer at least 48 hours prior to the hearing. The Disciplinary Officer shall grant or deny the request with a written explanation should the request be denied.