Md. Code Regs. 12.03.01.19

Current through Register Vol. 51, No. 12, June 14, 2024

Section 12.03.01.19 - Disciplinary Proceeding Procedures - Preliminary Review - Review of Attachment or Other Evidence Requests

A. An attachment or other evidence submitted by staff with or independently of the Notice of Inmate Rule Violation form shall be concluded to be evidence regarding the defendant's inmate rule violation charged.

B. In the interest of security of the facility, Department, or community or safety of an inmate, staff, or an individual, a defendant may be limited in or restricted from examining or possessing an attachment or other evidence.

C. To prevent and avoid accidental, unauthorized, or erroneous release to a defendant, defendant's representative, or loss or misplacement of evidence, staff shall retain custody of the attachment or other evidence until the defendant's appearance before the hearing officer.

D. Staff may not provide the defendant with a copy of an attachment or other evidence when the defendant is served with the defendant's copy of the Notice of Inmate Rule Violation form or Notice of Inmate Disciplinary Hearing form.

E. When the defendant appears before the hearing officer for the preliminary review, the hearing officer, while conducting the preliminary review, shall advise the defendant or defendant's representative, of an attachment or other evidence that was submitted by the staff in regard to the inmate rule violation charged.

F. If requested by the defendant, or defendant's representative, the hearing officer shall conduct a review of the attachment or other evidence during the preliminary review to determine if there is cause to believe that the attachment or other evidence is security sensitive and may not be examined or possessed by a defendant or defendant's representative.

G. If the hearing officer determines an attachment or other evidence is not security sensitive the defendant or defendant's representative:

(1) May request to review the attachment or other evidence;

(2) Shall comply with the facility's existing rules or procedures for requesting a copy of an attachment or other evidence; and

(3) May not use a request for a copy of an attachment or other evidence as the basis to request a postponement or a delay in the defendant's disciplinary proceeding.

H. If the hearing officer determines that an attachment or other evidence submitted is security sensitive or may pose a threat to the security of the facility, Department, or community or safety of an inmate, staff, or an individual if revealed to a defendant or defendant's representative, the hearing officer:

(1) Shall conclude the attachment or other evidence is a sealed record and not subject to the examination or possession by a defendant or defendant's representative;

(2) Shall inform the defendant or defendant's representative that the attachment or other evidence is security sensitive and may not be revealed to the defendant or the defendant representative;

(3) May not disclose to the defendant or defendant's representative the content of the attachment or other evidence deemed to be security sensitive; and

(4) May verbally provide the defendant or defendant's representative with a brief summary of the content of an attachment or other evidence as long as the summary does not compromise the content of the evidence identified as security sensitive.

I. If, after reviewing an attachment or other evidence, any hearing participant is not prepared to proceed, the hearing officer may grant a postponement.

J. If the disciplinary proceeding is postponed:

(1) The delay of the defendant's disciplinary proceeding may not be considered a cause to dismiss the inmate rule violation charged; and

(2) Staff shall reschedule the defendant's disciplinary proceeding as soon as circumstances permit.

K. Defendant Request for an attachment or other evidence.

(1) When served with a Notice of Inmate Rule Violation form and Notice of Inmate Disciplinary Hearing form, the defendant is required to list a detailed description of a request for an attachment or other evidence in the appropriate section of the facility's copy of the Notice of Inmate Disciplinary Hearing form designated for evidence requests.

(2) The defendant's failure to give a detailed description of the attachment or other evidence requested shall be deemed a waiver of the defendant's opportunity to make the request.

L. The hearing officer may approve an attachment or other evidence requested by the defendant or defendant's representative only if the hearing officer finds that the request was made at service and deemed appropriate under this regulation.

(1) The hearing officer may not compel the production of an attachment or other evidence when denied by an entity, staff, or an individual in control of the requested attachment or other evidence that is identified as security sensitive.

(2) The hearing officer shall deny a request for an attachment or other evidence made by the defendant or defendant's representative that is deemed:

(a) Irrelevant to the merits of the defendant's disciplinary proceeding;

(b) Cumulative to a factual matter or evidence to be presented or already in the record of the defendant's disciplinary proceeding; or

(c) A threat to the security of the facility, Department, or community or safety of an inmate, staff, or an individual.

(3) The hearing officer may not permit a request for or inspection of an attachment or other evidence that includes, but may not be limited to, a security:

(a) Document not classified for examination by an inmate;

(b) Record not classified for examination by an inmate;

(c) Post order not classified for examination by an inmate;

(d) Emergency plan;

(e) Photograph not classified for examination by an inmate;

(f) Video monitoring record;

(g) Property, equipment, item, or device;

(h) Directive not classified for examination by an inmate;

(i) Testing equipment or the testing equipment supplies; or

(j) Confidential statement or notation regarding security sensitive information.

(4) The hearing officer shall deny a request to inspect evidence deemed to be contraband that includes, but may not be limited to:

(a) A tool;

(b) A drug or medication;

(c) Alcohol;

(d) A weapon;

(e) A controlled dangerous substance;

(f) A cellular telephone;

(g) Tobacco, or currency; or

(h) Escape or drug paraphernalia.

(5) If the hearing officer determines that an examination of security sensitive or contraband evidence is required, the hearing officer shall conduct the examination outside the presence of the defendant, defendant representative, or any other inmate.

(6) When the hearing officer determines that an examination of a security or video record is required, the hearing officer shall conduct the review outside the presence of the defendant, defendant representative, or any other inmate.

M. Security Sensitive Information Presentation.

(1) When investigating a defendant's conduct in an event, staff shall determine if a record, report, document, an attachment, or other evidence related to the defendant's conduct is security sensitive.

(a) To determine if information is security sensitive, staff shall consider if divulging the information establishes a potential threat to the security operations, intelligence gathering, investigation methods and techniques of the facility, Department, or public safety or an individual providing security sensitive information.

(b) If making a determination that information is security sensitive, staff may consider that the information:

(i) Was provided by an inmate, confidential informant witness, or individual whose identity, if revealed, may pose a threat to the safety of that inmate, confidential informant witness, or individual or security of the facility, Department, or community;

(ii) Would reveal the method, technique, or factual details of a security or intelligence investigation;

(iii) Would reveal the method, quality, design, and field of view or coverage by the facility security monitoring equipment or systems;

(iv) Could reveal facility security staffing plans, emergency plans, or operations; or

(v) Was obtained by a law enforcement agency, a State or federal intelligence office or unit, or the Department's Intelligence and Investigative Division.

(c) In cases where staff have cause to believe that releasing information arising from an investigation of the defendant's conduct in an event would compromise security operations or intelligence gathering, or investigation methods and techniques of the facility or Department, or the safety of the public or an individual providing information regarding the investigation, staff shall inform the hearing officer that the information is security sensitive and not release the security sensitive information or evidence to the defendant, defendant's representative, or other inmate.

(2) When the hearing officer concludes that an attachment or evidence is not security sensitive, but facility staff disagrees, the following shall apply:

(a) The hearing officer shall postpone the defendant's disciplinary proceeding.

(b) The hearing officer shall inform the facility representative, if designated, or facility staff of the hearing officer's conclusion.

(c) The facility representative, if designated, or facility staff shall inform the managing official, or a designee, of the hearing officer's conclusion.

(d) If the managing official, or a designee, agrees with the hearing officer that the attachment or evidence is not security sensitive and may be released to the defendant or defendant's representative, facility staff shall schedule the defendant for a disciplinary proceeding and reveal the attachment or other evidence deemed to be not security sensitive.

(e) If the managing official, or a designee, disagrees with a hearing officer, the managing official, or a designee, may appeal the hearing officer's decision to the Secretary, or a designee.

(f) Upon receipt of the Secretary's, or a designee's, decision regarding the appeal, the facility representative, if designated, or facility staff shall schedule the defendant for a disciplinary proceeding and all hearing participants, including the hearing officer, shall abide by the decision of the Secretary, or a designee.

(3) Presentation of Security Sensitive Information at a Disciplinary Proceeding.

(a) The hearing officer:

(i) May not provide detail regarding investigation methods or techniques used to obtain the security sensitive information, the specific content of security sensitive information, or the source providing the security sensitive information; and

(ii) May summarize the content of the security sensitive information that specifically relates to the inmate rule violation charged as long as that summary does not compromise the security sensitive nature of the factual details of the information being reviewed.

(b) The content and details of information obtained through the facility security video monitoring system may be summarized for the defendant or defendant's representative; however, the hearing officer may not reveal the specific capabilities or limitations of the facility's security monitoring system.

(c) The hearing officer may provide the defendant or defendant's representative with specific content information from a document the defendant authored.

(d) The hearing officer may not provide the defendant or defendant's representative with information for review that is identified as being a:

(i) Directive not classified for examination by an inmate;

(ii) Policy not classified for examination by an inmate;

(iii) Procedure not classified for examination by an inmate;

(iv) Photographic record not classified for examination by an inmate; or

(v) Material, file, record, or document not classified for inmate examination or by this regulation.

(e) The hearing officer may summarize for the defendant or defendant's representative security sensitive information deemed relevant to the outcome of the defendant's disciplinary proceeding as long as that summary does not reveal the specific content of the information under review.

(f) If the hearing officer is presented with security sensitive information obtained from a confidential informant witness during the defendant's disciplinary proceeding, the hearing officer may not reveal any information that may disclose the identity of the confidential informant witness.

(4) When issuing a written decision that includes security sensitive information, the hearing officer shall summarize for the record the security sensitive information considered in rendering the decision as to the inmate rule violation charged and ensure that the summary does not reveal the specific details of the security sensitive information.

(5) Post Hearing Procedures.

(a) The managing official, or a designee, may review security sensitive information when conducting a review of the hearing officer's decision as to the inmate rule violation charged.

(b) Staff shall preserve the security sensitive information, by ensuring that the security sensitive information is not included in the defendant's case record file.

(c) Security sensitive information may not be released to another State agency without a court order or authorization from the Office of the Attorney General, Secretary, or a designee.

N. Security Monitoring Video Record.

(1) If the reported event that is the subject of the inmate rule violation charged was recorded by the facility's security monitoring system:

(a) The defendant or defendant's representative is required to request at the time of service that the video record be preserved and made available for the hearing officer to review as part of the defendant's case presentation and the request made at service is required to be renewed during the preliminary phase of the defendant's disciplinary proceeding; or

(b) The facility representative, if designated, or facility staff may request during the preliminary phase of the defendant's disciplinary proceeding that the hearing officer view the video record as part of the facility's case presentation.

(2) If the video has been preserved and is available for inspection, the hearing officer shall conduct a review, without examination by any inmate, of the requested video recording.

Md. Code Regs. 12.03.01.19

Regulation .19 adopted effective 45:13 Md. R. 668, eff. 7/2/2018