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, ยง 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
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No prior version found.