Section 2.08 - Conduct of Private SessionsGeneral.
(a) Private sessions shall be held to take the testimony of persons who are required to attend and testify under oath or affirmation pursuant to 123 CMR 2.05(2)(a).(b) The testimony of a witness at a private session shall be taken under oath administered by a notary public or other person authorized by the laws of the Commonwealth to administer oaths.(c) Testimony at a private session shall be recorded by a stenographer employed or engaged by the Office of the Veteran Advocate.(d) Private sessions shall be governed by the same provisions as secrecy that govern proceedings of a grand jury. No person shall be allowed to be present during a private session other than those persons designated to receive testimony pursuant to 123 CMR 2.05(2)(e), other staff of OVA if authorized by the Veteran Advocate, the witness, counsel for the witness, and stenographers or interpreters employed or engaged by the Office of the Veteran Advocate.(e) Counsel from the Office of the Veteran Advocate designated to hear testimony at a private session shall inform each witness, before the witness testifies, that the witness has the right to exercise their privilege against self-incrimination in response to any question.(f) A witness may be questioned by any person selected or approved by the Veteran Advocate Council to hear testimony or by any other employee of OVA designated by the Veteran Advocate.(g) A witness shall be permitted to be represented at a private session by counsel of their choice. Counsel shall file a written notice of appearance with OVA before representing a witness at a private session. The Office of the Veteran Advocate shall not be responsible for providing or funding any witness' counsel.(h) Failure to obtain counsel or to have counsel present at a hearing will not excuse a witness from attending or testifying in response to a summons issued under 123 CMR 2.05(2)(a), unless the witness shows that they have made a good faith effort to obtain counsel and to have counsel present and has been unable to do so for reasons beyond the witness's control, and the witness promptly notifies the Veteran Advocate or other person designated to hear testimony at the private session of their inability to obtain counsel or to have counsel present at the private session.(i) The witness shall be notified that they have a constitutional right not to answer questions which may tend to incriminate himself or herself. If a witness claims the privilege, they shall not be required to answer the question at that time.(j) The examination of witnesses pursuant to summons shall be governed by the same provisions which govern proceedings of a grand jury.(k) Counsel for the witness shall not be permitted to examine or cross-examine the witness, but the witness shall have the right to consult with counsel.(l) At the close of their testimony, a witness may make a closing statement. A witness may be asked additional questions after their closing statement. As provided in 123 CMR 2.05(2)(e) a witness may, in addition, file a sworn statement for inclusion in the record of the private session.(m) Complete transcripts shall be prepared of all testimony taken at a private session. The transcript of a witness's testimony shall be made available to the witness for inspection at the Office of the Veteran Advocate. The witness may obtain a copy of the transcript at cost from OVA or directly from the stenographer.(n) The witness or counsel for the witness shall be notified by OVA when a transcript of testimony is available. The witness shall have ten days (excluding Saturdays, Sundays and legal holidays) to indicate to OVA any inaccuracies in the transcript. Counsel for the Office of the Veteran Advocate, in their discretion, may agree to correct the transcript as requested. If counsel fails or refuses to change the transcript, the witness's proposed list of inaccuracies shall be appended to the transcript.(o) Transcripts of testimony taken at a private session shall be kept confidential subject to the same provisions with reference to secrecy which governs grand jury proceedings. Disclosure of such testimony may be made to members of the staff of the Office of the Veteran Advocate if necessary to assist the Veteran Advocate in the performance of their duties. Unauthorized disclosure of testimony taken at a private session shall be subject to criminal penalties pursuant to St. 1980, c. 388, § 2.Adopted by Mass Register Issue 1531, eff. 9/27/2024.