18-d-4 Witnesses

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

18-D-4. Witnesses

In Wolff v. McDonnell, the Supreme Court stated the limits of your constitutional right to call witnesses during disciplinary hearings. 156 The Court specified that a prisoner in a disciplinary proceeding "should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." 157 In other words, you can call witnesses unless prison officials decide that allowing you to do so would have a bad impact on the safety of the prison or the prison officials' ability to operate the prison. Prison officials do not have to call every witness you request to testify at your disciplinary hearing; they have the power to decide whether a potential witness can testify or not 158 This has been interpreted to mean that the official can chose not to call witnesses whose testimony they believe would be not important (immaterial) 159 or repetitive and unnecessary (unduly redundant) 160.

A prisoner's constitutional right to call witnesses was expanded and clarified in Powell v. Ward, also known as Powell II.161 In Powell II, the court rejected a rule established at the prison against allowing witnesses to be present at the hearing.162 Instead, the court stated that "witnesses must be allowed to be present at disciplinary proceedings, unless the appropriate officials determine that [their presence] would jeopardize institutional safety or correctional goals." 163 If the court decides that witnesses may not be present at the disciplinary hearing, the witness may be interviewed and tape-recorded without you being present.164 However, you must be given an explanation for why the witness is not allowed to appear.165The tape or transcript of the interview must be made available to you before or at the hearing, unless the hearing officer decides that the tape or transcript also "jeopardize[s] institutional safety or correctional goals." 166

Under New York regulations, the notice that you receive before the hearing must inform you of your right to call witnesses. 167 You may request a witness either by telling your employee assistant or hearing officer before the hearing, or by telling your hearing officer during the hearing.168 You have a right to request that your employee assistant interview your witnesses during the investigation of your claim.169 If your employee assistant interviews witnesses outside of your presence, you have...

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