Fact Finding Aspects of a Hearing before a Hearing Officer

(1) At the beginning of a hearing on a disciplinary offense which is designated as a referral to the District Attorney for prosecution, prior to the reading of offenses to the inmate, the Hearing Officer shall advise the inmate that the inmate has the right to remain silent and that anything the inmate says during the hearing may be used against the inmate in a court of law. For any other hearing on a disciplinary offense, at the beginning of the hearing the Hearing Officer shall read the offenses to the inmate and ask if the inmate wishes to admit or deny the offenses. If the inmate admits the offenses, the Hearing Officer may immediately consider mitigating evidence when recommending the sanction(s). (2) If the inmate does not admit the offenses, the Hearing Officer shall conduct a fact finding hearing at which the Hearing Officer may consider written, oral and physical evidence. All evidence considered by the Hearing Officer shall be presented in the presence of the inmate, except certain informant information, which shall be presented in accordance with the provisions of 103 CMR 430.15. (3) The Hearing Officer shall begin the disciplinary hearing by identifying the date, time and place of the hearing, the parties present, and reading the disciplinary report aloud. The inmate shall then be asked for a plea of guilty or not guilty. After the reading of the disciplinary report and the inmate's plea, the Hearing Officer shall consider any preliminary matters. When requested by the Hearing Officer, Reporting Officer, or upon his or her own initiative, the Disciplinary Officer or Assistant Disciplinary Officer shall present the case at issue. Evidence shall ordinarily be presented first by the proponent(s) of the disciplinary report(s), with an opportunity for cross-examination allowed by the inmate or the inmate's representative. The inmate shall then be allowed, but is not required to, present testimony or evidence in support of the inmate's case. An inmate's silence may be used to draw an adverse inference against the inmate, but silence shall not be the sole basis for a guilty finding. An inmate's request for sequestration of witnesses shall not be unreasonably denied, although the Hearing Officer may have appropriate staff present throughout the hearing as required by particular security or safety concerns. The foregoing procedure in no way limits the authority of the Hearing Officer as set forth in 103 CMR 430.13. (4) The inmate may call and question witnesses in his or her defense, or to present other evidence, when permitting him or her to do so will not be unduly hazardous to personal or institutional safety. The factors that the Hearing Officer may consider when considering an inmate's request to call witnesses, questioning of witnesses, or offer other documentary or physical evidence shall include, but shall not be limited to, the following: (a) relevance; (b) whether the evidence or witness testimony is cumulative or repetitive; and (c) hazards presented by an individual case. (5) The reporting staff person shall, when requested by the inmate or the Hearing Officer, attend the hearing unless the Superintendent or designee determines that good cause exists for the officer's unavailability. Any determination of unavailability shall be in writing and shall be completed prior to the commencement of the hearing. The Superintendent or a designee may approve the determination or disapprove it and require rescheduling of the hearing at a time when the reporting staff person will be available. If the inmate does not request the presence of the reporting staff person at the disciplinary hearing, the Hearing Officer may accept the reporting staff person's statement in the report as true, provided that the report is based on the staff person's eyewitness account or other personal knowledge and is otherwise credible. Further, such statements in the report may be considered by the Hearing Officer in making findings pursuant to 103 CMR 430.16(1). In the event that the inmate has requested the presence of the reporting staff person at the disciplinary hearing, but the officer is nonetheless unavailable, the Hearing Officer may assess the credibility of the staff person's statement in the report and is not required to accept it as true. (6) The Hearing Officer may call and question witnesses on the Hearing Officer's own motion. The Hearing Officer may continue a hearing.