120 CMR 302.07 - Evidentiary Process at Rescission Hearing

(1) Rescission hearings are conducted by the presenting member of the rescission hearing panel. The presenting member may, if good cause exists, compel the attendance of adverse witnesses, the production of exhibits, and testimony by duly issued summons as provided in M.G.L. c. 233, § 8 and 120 CMR 300.02: Parole Hearing Process.

(2) The strict rules of evidence do not apply to rescission hearings.

(3) The inmate may present witnesses and documentary evidence. However, the presenting member of the rescission hearing panel may limit or exclude any irrelevant or repetitious testimony or documentary evidence. Presence of witnesses at hearings conducted at state or county correctional facilities or jails is subject to the approval and the procedures of the custodial authority.

(4) The rescission hearing panel may take into account any reliable and relevant information available in establishing misconduct, criminal activity, or new and adverse circumstances. If the inmate remains silent, the decision of the rescission hearing panel will be based on the available information. The decision of the rescission hearing panel is based on a preponderance of the evidence. See 120 CMR 100.00: Definitions.

(a) The rescission hearing panel makes an independent inquiry into all alleged misconduct notwithstanding any previous action by any agency or judicial body.

(b) In the case of allegations of new criminal conduct, the rescission hearing panel may consider documentary evidence, written testimony, or both presented by the inmate, arresting authorities, or other persons.

(5) Adverse witnesses who are present will be available for questioning and cross-examination in the presence of the inmate, unless there is good cause for disallowing cross-examination.

(6) At the hearing, the rescission hearing panel shall disclose to the inmate evidence upon which it may base a rescission except as follows:

(a) The rescission hearing panel may disclose documentary evidence by permitting the inmate to examine the document during the hearing or, where appropriate, by reading or summarizing the document in the presence of the inmate.

(b) The rescission hearing panel shall not disclose confidential documentation and information to the inmate, but the rescission hearing panel shall notify the inmate that there is confidential information and that such confidential information will be disclosed in a summary manner. The rescission hearing panel shall not utilize in making its decision information that is not disclosed in some manner to the inmate.

(7) An inmate may be represented at a rescission hearing by an attorney or by a law student in a clinical program under the supervision of an attorney.

Notes

120 CMR 302.07

Amended by Mass Register Issue 1330, eff. 1/13/2017.