83-4,122. Disciplinary procedures; director establish; principles.

In disciplinary cases which may involve the imposition of disciplinary isolation or the loss of good-time credit, the director shall establish disciplinary procedures consistent with the following principles:

(1) Any person or persons who initiate a disciplinary charge against an inmate shall not determine the disposition of the charge. The director may establish one or more disciplinary boards to hear and determine charges. To the extent possible, a person representing the treatment or counseling staff of the institution or facility shall participate in determining the disposition of the disciplinary case;

(2) An inmate charged with a violation of department rules of behavior shall be given notice of the charge including a statement of the misconduct alleged and of the rules such conduct is alleged to violate. Such notice shall be given at least twenty-four hours before a hearing on the matter is held;

(3) An inmate charged with a violation of rules shall be entitled to a hearing on that charge at which time he or she shall have an opportunity to appear before and address the person or persons deciding the charge. The individual bringing the charge shall also appear at such hearing;

(4) The person or persons determining the disposition of the charge may also summon to testify any witnesses or other persons with relevant knowledge of the incident. The inmate charged shall be permitted to question any person so summoned and shall be allowed to call witnesses and present documentary evidence in his or her defense when permitting him or her to do so will not be unduly hazardous to institutional safety or correctional goals. The person or persons determining the disposition of charges shall state his, her, or their reasons in writing for refusing to call a witness;

(5) If the charge is sustained, the inmate charged shall be entitled to a written statement of the decision by the persons determining the disposition of the charge, which statement shall include the basis for the decision and the disciplinary action, if any, to be imposed;

(6) A change in work, education, or other program assignment shall not be used for disciplinary purposes;

(7) The inmate charged shall be entitled to an adequate opportunity to prepare a defense. Such opportunity shall include the right to assistance and advice in preparing and presenting a defense from any inmate in general population or staff member at the institution where the hearing is held. Such inmate or staff member may serve in such an advisory capacity for the inmate so charged;

(8) Any hearing conducted pursuant to this section shall be tape recorded, and such recording shall be preserved for a period of six months; and

(9) The standard of proof to sustain the charge shall be substantial evidence.

Source

Annotations

In prison disciplinary cases which involve the imposition of disciplinary isolation or the loss of good time credit, the standard of proof to sustain the charge is "substantial evidence" rather than "some evidence." Witmer v. Nebraska Dept. of Corr. Servs., 13 Neb. App. 297, 691 N.W.2d 185 (2005).

Pursuant to subsection (4) of this section, a charged inmate's request to produce relevant documentary evidence should generally be permitted unless allowing the inmate to do so will be unduly hazardous to institutional safety or correctional goals. Barnes v. Nebraska Dept. of Corr. Servs., 12 Neb. App. 453, 676 N.W.2d 385 (2004).

Pursuant to subsection (4) of this section, when the disciplinary committee declines a charged inmate's request to produce relevant documentary evidence in the inmate's defense, the committee should make a finding regarding the reasons for denial of the request. Barnes v. Nebraska Dept. of Corr. Servs., 12 Neb. App. 453, 676 N.W.2d 385 (2004).

There is no due process violation when there is a "legitimate penological concern" to deny the defendant's request for a witness to be present at an institutional disciplinary committee hearing for the defendant's use of drugs. Claypool v. Nebraska Dept. of Corr. Servs., 12 Neb. App. 87, 667 N.W.2d 267 (2003).

The specific statutes found in Chapter 83 governing prison disciplinary hearings control the factfinding procedures used in such hearings, and they do not require the use of the Nebraska rules of evidence for hearings conducted in accordance with this section. Dailey v. Nebraska Dept. of Corr. Servs., 6 Neb. App. 919, 578 N.W.2d 869 (1998).