Current through Register Vol. XLI, No. 44, November 1, 2024
Section 92-2-9 - Procedure at Revocation9.1. Panel Decision. All revocation hearings shall be heard by a Panel, as set forth in Section 3.2. At least two Members of the Panel shall be present in order for the Panel to hear and rule upon any manner. No accused parolee may have his or her parole revoked without the vote of at least two Members. In the event that a hearing is conducted by two Members and the two Members are unable to agree upon a ruling, the electronic recording and record of the proceedings shall be reviewed by the third Member of the Panel. At a later time, the third Member shall cast the deciding vote after a review of the electronic recording and records. The Panel may also entertain dispositive motions based upon the documentation and/or evidence presented. If the Panel sustains a motion to dismiss, the proceeding shall be at an end, and the Panel shall issue an order reflecting the motion and the ruling.9.2. Parties at Hearing. The accused parolee and his counsel shall be present at all stages of the hearing. Either the parole officer who charged the parolee, or another representative designated by the Division, shall be present to submit evidence and proof of the charge(s).9.3. Attendance of Witnesses. Both the parole officer and the accused parolee shall be permitted to have witnesses. Witnesses may be excluded from the hearing except for giving testimony in compliance with Section 9.8 of these Rules. Any civilian or public attendees to any form of Parole Board hearing shall only be permitted to bring with them a photo identification.9.4. Continuances. 9.4.a. Continuances may be granted by the Panel or the Board for good cause. The hearing may be continued past the 30th day, excluding weekends and holidays, upon which either the preliminary hearing is held in this State, the parolee is returned to the custody of the Division of Corrections within this State, or a written waiver of the preliminary hearing is executed.9.4.b. A motion for a continuance shall be made in writing at least two (2) working days prior to the hearing date to prevent inconvenience to victims or others and unnecessary use of resources expended for travel and attendance by Members and others. At no time, except in extreme emergency, will a continuance be granted that is made less than 24 hours before any hearing.9.4.c. The Board may refuse to grant a continuance if it determines there is not good cause to grant the motion.9.4.d. Good cause shall include, but not be limited to: the accused parolee's attorney's conflict with a scheduled court appearance; the inability of a desired witness to appear at the originally schedule hearing; illness; inadequate time to prepare a defense; or similar reasons applicable to Board Members or staff.9.5. Record of Hearing. Final parole revocation hearings shall be recorded electronically or by other reliable means.9.6. Commencement of Hearing. 9.6.a. At the commencement of the hearing, the Lead Interviewer of the Panel shall identify for the record, the name of the parolee, the date, time and place of the hearing, and the names of those present in the room.9.6.b. The Lead Interviewer of the Panel shall read aloud the charges to be considered at the hearing and the conditions, which the parolee is charged with violating unless waived by the accused parolee or counsel.9.7. Plea. 9.7.a. After reading each charge, the Lead Interviewer of the Panel shall ask the parolee to plead either guilty or not guilty in his own words. If the parolee refuses to respond, the Lead Interviewer shall note such refusal for the record. A refusal to plead shall be entered as a plea of not guilty.9.7.b. If the plea is guilty, the parole officer need not present evidence of the charge and the accused parolee shall be permitted to speak or otherwise present evidence in mitigation of punishment. The parole officer may present rebuttal evidence.9.7.c. If the parolee pleads not guilty, the parole officer shall be required to present evidence tending to support the charge, following which the accused parolee may present evidence in his or her own defense. Proof of the violation shall be by a preponderance of evidence as set forth in Section 9.10. Both the parole officer and the parolee shall be permitted to present evidence to rebut that of the other.9.8. Witnesses and Testimony.9.8.a. All witnesses, other than the parole officer as well as the accused parolee, shall be sequestered from the hearing room except when called upon to testify.9.8.b. All witnesses shall be placed under oath to tell the truth before testifying.9.8.c. The accused parolee may cross-examine witnesses presented by the parole officer, including the parole officer, should they choose to testify.9.8.d. The Lead Interviewer may find that there is a justifiable fear of harm to any witness if he or she were to directly testify, or if his or her identity were to be disclosed. The risk of harm must be demonstrated by an overt threat to the witness, by implicit threats, or by any circumstances which would reasonably lead to a belief that harm would be likely to result. That witnesses testimony shall be made in camera without the presence of the accused parolee during that witness' testimony.9.8.e. The parole officer may examine all witnesses who testify and may cross-examine those presented by the accused parolee. The Lead Interviewer may ask questions of any witness at any time.9.9. Rules of Evidence for Revocation Hearing.9.9.a. The Rules of Evidence do not apply to revocation proceedings. Any decision to admit or exclude evidence shall be at the discretion of the Lead Interviewer. In any event the presiding Member shall resolve concerning the admissibility of evidence in accordance with these rules:9.9.b. Evidence may be excluded if it is: 9.9.b.2. Cumulative, redundant or repetitious; or9.9.b.3. Evidence of a person's character, criminal record or habits, except as such is evidence of a witness's propensity for telling the truth, or except as it may be directly relevant to whether the accused parolee is guilty of the charges.9.9.c. Hearsay evidence, as defined by the West Virginia Rules of Evidence shall not be admitted, except when: 9.9.c.1. It is both reliable and trustworthy in its source and is credible.9.9.c.2. It is evidence of a statement made by a person who has explicitly refused to attend the revocation hearing to testify.9.9.c.3. It is evidence of a confession or an admission made by the accused parolee.9.9.c.4. It is evidence of a recorded memorandum of a witness's statement who can no longer remember the statement or is unavailable to testify, or is a regularly kept business record or a public record or a statement against interest.9.9.c.5. It is hearsay evidence offered by the parole officer, or other competent witnesses, of the statement of a confidential informant. Such hearsay evidence shall not be admitted unless the Lead Interviewer is satisfied that there is a justifiable fear of harm to the informant if he or she were to directly testify, or if his or her identity were to be disclosed, and there are indications that such evidence is reliable and trustworthy.9.9.c.6. Such hearsay evidence that would otherwise be admitted under the West Virginia Rules of Evidence.9.9.c.7. The Lead Interviewer may accept into evidence the hearsay testimony of the parole officer or other competent witness, and the affidavit of the informant, or a private examination of the informant, from which the parolee may be excluded if the justifications set forth in Section 9.8 are present.9.9.d. Notwithstanding any other rule, documentary evidence may be admitted for the truth of the matters set forth in the document if:9.9.d.1. The document is prepared by a person with direct knowledge of relevant facts, who is unable to appear to testify, provided that the document is accompanied by an affidavit signed by the author attesting to the document's authenticity and accuracy, or there are indications that the document is reliable and trustworthy.9.9.d.2. The document was prepared by and within the scope of duty of a public employee, excepting a parole officer, and was prepared at or near the time of the act, condition, or event, and the source of information and method and time of preparation was such as to indicate its trustworthiness.9.9.d.3. The document is a report from the Department of Public Safety or from a laboratory under contract with the a Division of the Department of Military Affairs and Public Safety relating to scientific testing for identification of alcohol or controlled substance or firearm or other forensic testing.9.9.e. Originals or certified copies of Interstate Compact Reports, Preliminary Hearing transcripts and findings, and correspondence from out-of-state parole officers, to include reports, letters or memorandums, may be submitted as evidence in the final parole revocation hearing. Those original or certified copies of the Interstate Compact Reports will be accepted on its face and direct testimony or submitted evidence will not be required by the reporting state.9.9.f. The presentation of a certified copy of a conviction is conclusive proof that the parolee is guilty of committing a crime. Proof of an arrest or indictment is not proof of the crime.9.9.g. Proof of a charge of parole violation cannot be based upon hearsay evidence alone. If hearsay evidence of the type described in subsection (c) or (d) is offered by the parole officer as proof of a violation of a condition of parole, the parole officer must also offer some other reliable evidence, either direct or circumstantial, to prove the charge. Documentary evidence of the type described in subsection (f) is sufficient proof of a charge. All documents and other evidence pertaining to the charges must be submitted five days prior to the hearing date. Documents must be submitted to each participating party as well as the Parole Board.9.9.h. The Lead Interviewer may strike or limit any questioning of witnesses which is abusive or clearly intended to harass, intimidate or insult a witness.9.9.i. If the charges being considered at the hearing include a charge relating to the commission of a felony for which the parolee is being criminally charged, the Lead Interviewer shall admit evidence of the current status of the criminal proceeding.9.9.j. Burden of Proof. The Panel of the Board shall not order that parole be revoked unless it finds by a preponderance of the evidence submitted at the revocation hearing that the parolee violated a condition of parole. The burden rests with the parole officer to prove the parole violation. Where there are factual disputes on key issues in a parole revocation hearing, the Panel shall set forth a statement on how and why the dispute was settled in a certain way to assist in judicial review.