Sec. 5. (a) Before imposing any disciplinary action, the department shall afford the person charged with misconduct a hearing to determine his guilt or innocence and, if guilty, the appropriate action. The charged person may waive his right to a hearing. Also, before a charge is made, that person and a departmental employee may agree to the types of disciplinary action enumerated in sections 3(2) and 3(3) of this chapter if no record of the conduct or disciplinary action is placed in the person's file. In connection with the hearing, the person is entitled to:

(1) have not less than twenty-four (24) hours advance written notice of the date, time, and place of the hearing, and of the alleged misconduct, and the rule the misconduct is alleged to have violated;

(2) have reasonable time to prepare for the hearing;

(3) have an impartial decisionmaker;

(4) appear and speak in his own behalf;

(5) call witnesses and present evidence unless the person conducting the hearing finds that to do so would subject a witness to a substantial risk of harm, or would result in the admission of irrelevant or repetitive testimony;

(6) confront and cross-examine witnesses, unless the person conducting the hearing finds:

(A) that to do so would subject a witness to a substantial risk of harm;

(B) that to do so would result in the admission of irrelevant or repetitive testimony; or

(C) based upon good cause stated on the record, that a witness is unavailable to attend the hearing;

(7) have advice and representation by a lay advocate of his choice, if that lay advocate is available in the institution at the time of the hearing, in those hearings based upon a charge of institutional misconduct when the department determines he lacks the competency to understand the issues involved or to participate in the hearing, or when the punishment may be that specified in:

(A) section 3(5) of this chapter if the restitution is more than two hundred dollars ($200);

(B) section 3(8) of this chapter if the segregation is for more than fifteen (15) days; or

(C) section 3(6), 3(9), or 3(10) of this chapter;

(8) have a written statement of the findings of fact, the evidence relied upon, and the reasons for the action taken;

(9) have immunity if his testimony is used in any criminal proceeding;

(10) have his record expunged of any reference to the charge if he is found not guilty or if a finding of guilt is later overturned; and

(11) be reimbursed for state wages lost due to action taken pending the hearing if he is found not guilty or if a finding of guilt is later overturned.

Any finding of guilt must be supported by a preponderance of the evidence presented at the hearing.

(b) The department may not charge a committed person with a disciplinary rule violation unless it does so within ten (10) days of the date it becomes aware of that person's alleged involvement in misconduct.

(c) Consistent with the objective of adequate and effective representation and the integrity of the hearing system the department may adopt regulations which may limit the pool of persons eligible to advise and represent accused persons to inmates in the general population. In any event, facility or program employees and inmates may not directly or indirectly charge for advice or representation.

(d) Any statement made by an accused person to departmental employees during the course of an investigation or hearing is not admissible against him in any criminal proceeding arising out of the same incident unless the accused:

(1) was informed:

(i) of his right to remain silent;

(ii) that anything he says can and will be used against him in court;

(iii) of his right to have an attorney present during any questioning;

(iv) his right to have an attorney appointed for him if he is unable to afford an attorney; and

(v) that if he decides to answer any questions, he may stop answering at any time during the interrogation; and

(2) voluntarily, knowingly, and intelligently waived his rights under subdivision (1) to remain silent or to have an attorney present, or both.

As added by Acts 1979, P.L.120, SEC.4. Amended by Acts 1980, P.L.87, SEC.7; P.L.99-1986, SEC.3; P.L.135-1993, SEC.4.