N.J. Admin. Code § 10A:4-9.13

Current through Register Vol. 56, No. 21, November 4, 2024

Section 10A:4-9.13 - Opportunity to call a witness(es) and present evidence

(a) Inmates shall be allowed to call a fact witness(es) (as this term is defined at 10A:4-1.3 ) and present documentary evidence in their defense. The Disciplinary Hearing Officer or Adjustment Committee has the discretion to keep the disciplinary hearing within reasonable limits. If requested, an inmate or counsel substitute shall be provided the opportunity to call and question in-person a fact witness(es) unless the Disciplinary Hearing Officer or Adjustment Committee determines that calling said witness(es) may be:

1. Unduly hazardous to the correctional facility/unit safety, security, orderly operation, or goals;

2. Irrelevant;

3. Likely to produce repetitive testimony;

4. Harassing or retaliatory against another;

5. For some malicious purpose;

6. A request to call a witness who is a confidential informant;

7. A request to call a witness who is not employed or is no longer employed by the Department of Corrections;

8. A request to call an inmate witness who is not in the custody of the Department of Corrections; or

9. A request to call an unavailable witness, as defined in this chapter. An unavailable witness may be asked to submit a written statement in lieu of an in-person appearance.

(b) Witnesses requested by the inmate who are called may be questioned by the Disciplinary Hearing Officer or by members of the Adjustment Committee and the inmate or the inmate's counsel substitute. Inmates or their representatives may request that certain questions be directed by the Adjustment Committee members or the Disciplinary Hearing Officer to any witnesses. The Disciplinary Hearing Officer or Adjustment Committee may take testimony in a manner or form which is determined to be necessary to protect correctional facility safety or goals. Such manner or form shall include, but shall not be limited to, the consideration of confidential reports. If the request for witness testimony is granted, the inmate or counsel substitute shall provide to the Disciplinary Hearing Officer or Adjustment Committee the proposed witness questions for review.

(c) Based upon the review as established in (b) above, the Disciplinary Hearing Officer or Adjustment Committee may take the testimony in a manner or form which is determined to be necessary to protect correctional facility/unit safety, security, orderly operation, or goals. The Disciplinary Hearing Officer or Adjustment Committee may disallow any questions that may:

1. Be unduly hazardous to the correctional facility/unit safety, security, orderly operation, or goals;

2. Be irrelevant;

3. Be repetitive;

4. Be meant to harass or retaliate;

5. Be for some malicious purpose; or

6. Reveal confidential information.

(d) The Disciplinary Hearing Officer or Adjustment Committee shall direct all remaining questions to the witness. The inmate or counsel substitute may request additional follow-up questions as set forth in this section.

(e) If the Disciplinary Hearing Officer or Adjustment Committee denies the request of the inmate or counsel substitute to call a witness(es), have access to certain information, or to ask certain questions, the reasons for the denial shall be specifically set forth on the Adjudication of Disciplinary Report.

(f) The New Jersey Department of Corrections has a penological interest to ensure correctional facilities are operated in a safe, secure and orderly fashion; therefore, the Department prohibits all forms of violence among inmates. The Disciplinary Hearing Officer or Adjustment Committee will allow an inmate to raise self-defense to a prohibited act involving the use of force among inmates; however, the inmate claiming self-defense shall be responsible for presenting supporting evidence that shall include each of the following conditions:

1. The inmate was not the initial aggressor;

2. The inmate did not provoke the attacker;

3. The use of force was not by mutual agreement;

4. The use of force was used to defend against personal harm, not to defend property or honor;

5. The inmate had no reasonable opportunity or alternative to avoid the use of force, such as, by retreat or alerting correctional facility staff; and

6. Whether the force used by the inmate to respond to the attacker was reasonably necessary for self-defense and did not exceed the amount of force used against the inmate.

(g) When self-defense is raised by an inmate, the Disciplinary Hearing Officer or Adjustment Committee may consider any other condition or evidence that would cause the force that was used by the inmate to be deemed unreasonable, such as, but not limited to, any use of force that would interfere with or otherwise undermine the safe, secure or orderly operation of the correctional facility.

N.J. Admin. Code § 10A:4-9.13

Amended by R.1996 d.237, effective 5/20/1996.
See: 28 N.J.R. 1464(a), 28 N.J.R. 2555(b).
In (a) inserted disciplinary preceding hearing.
Amended by R.2004 d.293, effective 8/2/2004.
See: 36 N.J.R. 1867(a), 36 N.J.R. 3551(a).
Rewrote the section.
Amended by R.2006 d.398, effective 11/20/2006.
See: 38 N.J.R. 3121(a), 38 N.J.R. 4867(a).
In the introductory paragraph of (a), inserted "(as this term is defined at N.J.A.C. 10A:4-1.3)".
Amended by R.2007 d.198, effective 7/2/2007.
See: 39 N.J.R. 834(b), 39 N.J.R. 2538(a).
In (e), inserted ", have access to certain information,", substituted "form 259A" for "the" following "on" and deleted "form" from the end; and added (f) and (g).
Petition for Rulemaking.
See: 48 N.J.R. 2078(b), 2637(a).

Amended by 53 N.J.R. 923(a), effective 5/17/2021