Procedures for the Use of Informant Information

In disciplinary cases involving informant information, the Hearing Officer may consider documentary evidence and/or testimony which is not presented in the presence of the inmate or the inmate's representative only if, after viewing or hearing such documentary evidence or testimony, the following has occurred: (1) The Hearing Officer has made a finding that the informant is reliable and that the information is credible. This finding shall be included in the record and should contain the following information: (a) The facts upon which the Hearing Officer based the conclusion that the informant was reliable and that the information was credible. These facts should ordinarily not be general and must be specific, as set forth in 103 CMR 430.15(l)(b). (b) A statement of the information provided by the informant with as much specificity as is possible, without creating a substantial risk of disclosing the identity of the informant. The statement should demonstrate that the informant had personal knowledge of the information provided. (c) In making the foregoing findings, the Hearing Officer shall be guided by and record the findings on a form approved by the Commissioner consistent with 103 CMR 430.00, which form includes criteria focusing on the personal knowledge, reliability, and credibility of the informant and the specificity of the information supplied. A separate inquiry and finding shall be made for each informant. Each form with these findings shall be given to the inmate at a reasonable time before the inmate is given an opportunity to question the reporting officer or other witnesses and to present the inmate's case. (2) The Hearing Officer has made a finding that the disclosure of the documentary evidence or testimony provided by the informant to the inmate or the inmate's representative would create a substantial risk of harm to the informant, to any other person, or to the security of the institution. (3) The Hearing Officer has presented a written summary of the information provided by the informant to the inmate at the hearing, which shall be included with the form required by 103 CMR 430.15. Such a presentation may, however, be foregone in cases where disclosure of the information in any greater detail than that which is contained in the disciplinary report itself would create a substantial risk of disclosing the identity of the informant. In such a case, the Hearing Officer shall justify this nondisclosure with specific written findings included in the form given to the inmate. However, the inmate or the inmate's representative may question the reporting officer subject to the provisions of 103 CMR 430.13 and 103 CMR 430.15(1)(b) with regard to the reliability and credibility of the informant. (4) The Hearing Officer may consider informant information and base the findings in 103 CMR 430.15(1) on information which is limited to oral or written hearsay evidence subject to the foregoing provisions. The Hearing Officer shall not be required to interview the informant in person. (5) The form required by 103 CMR 430.15 and any written summary of informant information shall be included in the Hearing Officer's written record of the proceedings. This standard form may, from time to time, be revised with the approval of the Commissioner; in such case, any prior form(s) shall be discontinued and the revised form shall be used in all disciplinary hearings until it is replaced.