Section 431.09 - Behavior Review Committee Procedures(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; and4.The Chairperson determines, after consultation with appropriate security staff, that there are no security concerns that would preclude appointment of the proposed resident advocate; and5.The resident advocate shall not receive any compensation in any form for such services; and6.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: 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.