Code of Massachusetts Regulations
103 CMR - DEPARTMENT OF CORRECTION
Title 103 CMR 431.00 - Observation Of Behavior Reports
Section 431.09 - Behavior Review Committee Procedures
Universal Citation: 103 MA Code of Regs 103.431
Current through Register 1531, September 27, 2024
(1) Composition and General Powers of the B.R.C.
(a) The B.R.C. shall consist of three persons
appointed by the Superintendent; one security staff member, one clinician and
one program staff member.
(b) The
Superintendent or designee shall appoint one of the three members of the B.R.C.
as Chairperson. The Chairperson shall govern the conduct of every phase of the
hearing including, but not limited to, the interpretation and construction of
103 CMR 431.00 and the
conduct of all parties. The Chairperson may call an executive session at any
time to consider procedures.
(c)
The B.R.C. shall be impartial. The resident may challenge the impartiality of a
member of the B.R.C. If the resident challenges the impartiality of a member of
the B.R.C., the Chairperson shall determine if the resident has stated
substantial reasons to support the claim. For example, a witness to the event
at issue should not sit as a member of the B.R.C. If the Chairperson determines
that a member of the B.R.C. should be removed, the Superintendent or designee
shall designate a replacement as soon as practicable.
(d) The B.R.C. shall not be bound by the
rules of evidence observed by the courts of the Commonwealth.
(e) All parties, counsel, witnesses or other
persons present at a B.R.C. hearing shall conduct themselves in a professional
manner consistent with the standards of decorum commonly observed in the courts
of the Commonwealth. The Chairperson may take whatever appropriate actions are
necessary to conduct a hearing when confronted with the improper conduct of any
participant.
(f) The B.R.C. shall
make findings of fact, determine guilt or innocence, and impose sanctions and
recommendations.
(2) Scheduling.
(a)
Residents charged with rules violations shall be scheduled for a hearing by the
B.R.C. within seven days (excluding weekends and holidays) after the alleged
violation or the completion of any investigation. The resident will receive at
least 24 hours notice of the date, time and location of the hearing.
(b) If, for good cause, either the B.R.C. or
the resident is unable to meet on the prearranged date, a new hearing will be
scheduled. In the event that the resident does not report to a scheduled
hearing, and he has provided no reasonable explanation for this absence, the
B.R.C. is authorized to proceed without the resident being present.
(c) The resident may waive the right to a
hearing. The waiver shall be on the appropriate form. The resident shall
forward the form to the B.R.C., which shall provide a copy to the Deputy
Superintendent of Operations, who will review the waiver. A waiver shall be
deemed an admission that the O.B.R. is accurate. In this case, the B.R.C. will
meet for the purpose of considering and imposing sanctions.
(3) Witnesses.
(a) At the
request of the resident, the reporting staff person shall be present at the
scheduled hearing except when the B.R.C. Chairperson determines that the
reporting person is unavailable for a prolonged period of time or other good
cause. If the resident does not request the presence of the reporting staff
person, the Chairperson may, at his discretion, accept the reporting staff
person's statements in his report as true, provided that the report is based on
the staff person's eyewitness account or personal knowledge. Further, such
statements in the report may be considered by the B.R.C. in making its
findings. Any determination of unavailability shall be in writing and shall be
reviewed by the Superintendent or designee prior to the commencement of the
hearing. The Superintendent or designee may approve the determination or
disapprove it and require scheduling of the hearing at a time when the staff
person will be available.
(b) The
resident, within 48 hours of receiving the O.B.R., may, in writing, inform the
B.R.C. Chairperson of the individual(s) (staff and residents) he is requesting
appear at the Behavior Review Committee proceeding. The resident shall provide
a brief summary of the anticipated testimony of each witness requested. At the
hearing, the Chairperson shall rule on the request to call witnesses as
provided by 103 CMR 431.09(5)(d).
(4) Representation of Residents and Recording of Proceedings.
(a)
The resident may be represented by an attorney or law student at the hearing.
It is the resident's responsibility to secure such representation and the
Chairperson shall afford him the opportunity to do so. It shall be the
resident's responsibility to inform his representative of the scheduled time of
the hearing. The Chairperson will reschedule the hearing once at the request of
the attorney or law student. The Chairperson may, but is under no obligation
to, reschedule a hearing a second time to accommodate the legal
representative's schedule.
The resident may be represented by another resident only under the following circumstances:
1.In
matters involving a greatest severity or high category offense as set forth in
103 CMR 431.11,
the resident demonstrates tha the has made reasonable efforts to secure
representation by an attorney or law student and that he has been unable to
secure such representation; and
2.The proposed resident advocate holds a
privilege level above the lowest privilege level; and
3.The Chairperson determines, after
consultation with appropriate clinical staff, that there would be no clinical
contraindications to permitting the proposed resident advocate access to any
records to be considered by the B.R.C; and
4.The Chairperson determines, after
consultation with appropriate security staff, that there are no security
concerns that would preclude appointment of the proposed resident advocate;
and
5.The resident advocate shall
not receive any compensation in any form for such services; and
6.The resident advocate shall conduct himself
in a manner consistent with standards of decorum commonly observed in the
courts of the Commonwealth. If the resident fails to conduct himself in such
manner during the course of his representation, the Chairperson may disqualify
him from continuing the representation.
(b) Where the resident is illiterate or not
capable of collecting and presenting evidence on his own behalf, and where the
resident has been unable to secure representation as set forth in 103 CMR
431.09(4)(a), the Superintendent will designate a staff member to assist the
resident. In this instance, the resident will not be allowed to cross-examine
witnesses, but the designated staff person may cross-examine witnesses
identified by the resident.
(c)
Either the Chairperson or the resident may elect to record the hearing by use
of a tape recorder. A resident requesting recording must follow the provisions
of the Treatment Center Audio Taping Procedure.
(5) Conduct of the Hearing.
(a) At the beginning of
a hearing on an offense which has been or may be referred to the district
attorney for prosecution, the Chairperson shall advise the resident that he has
the right to remain silent and that anything he says during the hearing may be
used against him in a court of law. The Chairperson shall then read the charges
to the resident and ask the resident if he wishes to admit or deny the charges.
If the resident admits the charges, the Chairperson may immediately consider
evidence of mitigating or aggravating circumstances, then close the proceeding
for deliberation.
(b) If the
resident does not admit the charges, the Chair person shall conduct a fact
finding hearing at which the B.R.C. may consider written, oral and physical
evidence. All evidence shall be presented in the presence of the resident,
except informant information which shall be presented in accordance with the
provisions of 103 CMR 431.09(6).
(c) The resident shall be allowed, but shall
not be compelled, to make an oral statement or to present a written statement
in his own defense or in mitigation of sanction. A resident's silence may be
used to draw an adverse inference against him, but his silence shall not be the
sole basis for a guilty finding.
(d) The Chairperson shall allow the resident
to call, question and cross-examine witnesses in his defense or to present
other evidence, when permitting him to do so will not be unduly hazardous to
personal or institutional safety. The factors that the Chairperson may consider
when ruling on a resident's request to call witnesses, question witnesses,
cross-examine witnesses or offer other documentary or physical evidence shall
include, but not be limited to, the following:
1.Relevance;
2.Whether the evidence is cumulative or
repetitive;
3.Hazards presented by
an individual case;
4.Unavailability of the reporting staff
person or other staff person for a prolonged period of time due to illness,
vacation or other authorized absence, of for other good cause;
5.Failure of the resident to provide a
summary of the expected testimony of a proposed witness.
The reasons for denying a resident's request to call witnesses, or offer documentary or physical evidence shall be stated in writing in the B.R.C. Hearing Report. The resident may submit a written statement from any witness requested by the resident who is not permitted to attend the hearing.
(e)
The B.R.C., at its discretion, may call and question witnesses on its own
motion. The Chairperson may continue a hearing at his discretion.
(f) The B.R.C. may exclude any person from
the hearing who fails to conduct himself in a manner consistent with standards
of decorum commonly observed in the courts of the Commonwealth. The reasons for
excluding any person from the hearing shall be stated in writing in the B.R.C.
Hearing Report.
(6) Procedures for the Use of Informant Information. In cases involving informant information, the Chairperson may consider documentary evidence and/or testimony which is not presented in the presence of the resident or his representative only if, after viewing and/or hearing such documentary evidence or testimony, the Chairperson has:
(a) Made a finding that the informant is
reliable and the information is credible. This finding shall be included in the
record and should contain the following information:
1.the facts upon which the Chair person based
his conclusion that the informant was reliable and that the information was
credible;
2.a statement of the
information provided by the informant as specific 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 he provided;
(b) Made a finding that the disclosure of the
documentary evidence or testimony provided by the informant to the resident or
his representative would create a substantial risk of harm to the informant, to
any other person, or to the security of the institution;
The Chairperson shall present a summary of the informant information to the resident at the hearing. 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 O.B.R. itself would create a substantial risk of disclosing the identity of the informant.
The Chairperson may consider informant information and base the findings in 103 CMR 431.09(5)(a) on information which is limited to oral or written hearsay evidence. The B.R.C. shall not be required to interview the informant in person.
(7) Deliberation and Decision.
(a) At the close of the
presentation of the evidence, the resident shall be excused from the room. The
members of the B.R.C. shall confer to determine on the basis solely of
information obtained in the hearing process, including staff reports, the
statements of the resident charged, and evidence derived from the witnesses and
documents, whether it is more likely than not that the incident occurred as
reported and shall make a determination. The determination will be made by
majority vote of the B.R.C.
(b) If
the resident is found guilty, the B.R.C. may impose one or more of the
sanctions listed in 103CMR 431.12. The B.R.C shall not utilize the resident's
prior record of behavior in determining whether or not the incident occurred as
reported, however, the resident's prior record of inappropriate behavior may be
considered by the B.R.C. in determining what measures shall be taken to
preclude a re-occurrence of that behavior. The Chairperson may, in his
discretion, recall the resident after finding that the incident occurred as
reported, but prior to the B.R.C. imposing a sanction to discuss issues related
to the decision on a sanction. Upon a rehearing, the B.R.C. may increase or
decrease the sanction previously imposed without regard to a previous B.R.C.
decision.
(c) The disposition of
the B.R.C. shall be read to the resident at the conclusion of the hearing. In
addition, the resident shall be verbally informed of his right to submit a
written appeal of the B.R.C.'s decision to the Superintendent of his designee
within five days of the resident's receipt of the B.R.C. written decision. The
staff person providing this information shall indicate so on the B.R.C. Hearing
Report.
(d) In addition to having
the disposition read to him, the resident shall, within three working days of
the hearing be provided with a copy of the results of the B.R.C. Hearing
Report. If a guilty finding is reached, the written decision shall contain the
following:
1.A description of the evidence
relied upon in reaching the finding that the incident occurred as
reported;
2.A statement of the
reason(s) for the sanction(s) imposed;
3.An explanation for the exclusion of
evidence and witnesses;
4.A notice
of the right of appeal.
5.Where
informant information was used, a statement of the evidence in accordance with
103 CMR 431.09(5).
The evidence relied upon for the guilty finding and the reasons for the sanction shall be set out in specific terms.
(e) Where it has been found that
the incident occurred as reported, a copy of the O.B.R., notice of hearing,
request for representation/witnesses, waivers (if any), the written decision of
the B.R.C. and appeal forms shall be maintained in the resident's institutional
and central records. Copies shall be distributed to the B.R.C. Chairperson, the
Superintendent or designee, the Unit Director and the Work Program Coordinator.
(f) Where it has been found that
the resident is not guilty of an offense, the O.B.R., the Behavior Committee
Hearing Report and the related attachments described in
103 CMR 431.00 shall be
removed from the resident's file, unless the O.B.R. also includes offenses on
which the resident was found guilty by the B.R.C. Dismissed and not guilty
reports, as well as B.R.C. decisions which are expunged from the resident's
file pursuant to court order or settlement agreement may be maintained by the
Deputy Superintendent for Operations for the specific and exclusive purposes of
and may be only used for research, staff training and statistical
data.
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