No. 37463 (Amendment): Rule R671-517. Evidentiary Hearings and Proceedings

(Amendment)

DAR File No.: 37463
Filed: 03/29/2013 04:36:00 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to detail policies and procedures governing evidentiary hearings and proceedings.

Summary of the rule or change:

This amendment is intended to clarify of the language of the "Evidentiary Hearings and Proceedings" rule.

State statutory or constitutional authorization for this rule:

• Section 77-27-11
• Section 77-27-5
• Section 77-27-9

Anticipated cost or savings to:

the state budget:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to state government. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

local governments:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to local governments. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

small businesses:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to small businesses. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

persons other than small businesses, businesses, or local governmental entities:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to any other person. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Compliance costs for affected persons:

There is no compliance cost for affected persons. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Chairman of the Board of Pardons and Parole has considered this rule amendment, and finds that there is no fiscal impact on businesses because of this rule amendment. Interested persons may present their views on the rule pursuant to Division of Administrative Rules process and procedures. A public meeting was scheduled, noticed, and held regarding this rule amendment on Monday, 03/04/2013 at 8:00 a.m. No person attended the hearing to comment on this rule amendment, and no comments have been received by the Board.

Clark A. Harms, Chairman

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Pardons (Board Of)
AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• John Green at the above address, by phone at 801-261-6464, by FAX at 801-261-6481, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/15/2013

This rule may become effective on:

05/22/2013

Authorized by:

Clark Harms, Chairman

RULE TEXT

R671. Pardons (Board of),Administration.

R671-517. Evidentiary Hearings andProceedings.

R671-517-1. Evidentiary Hearings andProceedings.

When a parolee has entered a not guiltyplea to [an]a parole violation allegation [that parole has been violated ]and the [b]Board wishes to consider the allegation, the Board shallhold an evidentiary hearing unless the parolee has been convictedof a criminal charge and revocation is ordered [under]pursuant to Utah R. Admin. P. R671-518[, Conduct of Proceedings when Criminal Charge Results inConviction].

 

R671-517-2. Confidentiality.

All hearings are open to the public,unless the Board decides that confidential information must bediscussed. Only those portions of the hearing during whichconfidential information is discussed may be closed. [Confidential hearings shall be conducted as set forthin]See Utah R. Admin. R. R671-520.

 

R671-517-3. Notification.

The Board shall notify all parties of thetime, date, and place of the hearing and of the disputedallegations[(s)]. [In this notification, t]The parolee shall be notified of [his or her]the right to be represented by an attorney of choice at theparolee's own expense, or such counsel as may be provided bythe Board. The parolee[notification also] shall also be informed [the parolee ]of the right to confront and crossexamine witnesses, [(]absent a showing of good cause for not allowingthe confrontation[)], and the right to present rebuttalevidence.

 

R671-517-4. Anticipated Witnesses,Documents and Other Evidence.

At least ten [(10)] days prior to the hearing, unless otherwisedirected by the Board, each party shall provide to the [other]opposing party and to the Board a list of anticipatedwitnesses, documents, and other evidence to be submitted at thehearing, together with a summary of the relevance of eachanticipated piece of evidence. Failure to comply with this rule mayresult in sanctions including, but not limited to, exclusion of thenon-disclosed witnesses and evidence.

 

R671-517-5. [Presided Over by a ]Single Hearing Official[Board Member].

An evidentiary[The] hearing may be presided over by a singleBoard member or [a] hearing officer as the Board [c]Chair[person] designates. The hearing official[person presiding] may, sua sponte, or upon motionof either party, exclude evidence that is irrelevant, undulyrepetitious, or privileged[ in the courts of Utah]. The hearing official[person presiding] may [further] take judicial notice of undisputed factsand may rule on motions [offered]made prior to or[ pending] during the hearing.

 

R671-517-6. Department of Corrections Bears Burden of [Evidence]Proof.

The Department of Corrections bears theburden of establishing a parole violation by a preponderance of theevidence. All testimony shall be given under oath. [Strict]The Utah R[r]ules of [e]Evidence do not apply. Hearsay evidence is admissible andshall be given such weight as the [person presiding]hearing official considers appropriate; however, no findingof guilt shall be based solely on hearsay evidence, except wheresuch evidence would be otherwise permitted in a court of law. [The Fourth and Fifth Amendment] E[e]xclusionary rules and case law do not apply to parole revocation hearings.

 

R671-517-7. Opening Statements.

At the hearing, each party may make abrief opening statement, beginning with the State. After openingstatements, the State [presents its evidence]has the burden of presenting evidence of parole violation.Upon conclusion of the State's case, the parolee may presentevidence in response. If the parolee, [in his or her]as a defense, raises issues not adequately addressed by theState's case in chief, the [person presiding]hearing official may allow the State to present rebuttalevidence in response[ to that issue]. Upon conclusion of all evidence,the [person presiding]hearing official may allow each party to make a brief closing argument.

 

R671-517-8. Written Submissions.

Any brief or legal memorandum submitted tothe B[b]oard as part of an evidentiary hearing shall be[delivered to the board]filed at least ten [(10) ]calendar days prior to the hearing, andshall include proof of service on the opposing party. The opposingparty shall[may furnish] file any[its] written response [to any such submissions] no later than three [(3) ]calendar days prior to the hearing. [Such]Written submissions shall be no longer than ten [(10) ]double-spaced, typed pages, excludingexhibits. Either party may petition the hearing official forpermission to exceed these length requirements or shorten thesetime requirements, and the decision whether to allow this shallrest in the sole discretion of the hearing official.

 

R671-517-9. Continuances.

1. All requests to continue a scheduled evidentiary hearingshall[ ]: (a) be submitted to the board in writing, at least seven [(7) ]calendar days prior to the scheduled hearing[,]; and (b)[shall] contain either a stipulation of theparties, or a statement of why there is an extraordinary need forcontinuance and why such a continuance will not prejudice theinterests of the other [side]party.

2. The decision to grant or deny a continuance rests in thesole discretion of the hearing official.

3. In the event a continuance is granted, each party shallbe responsible for notifying its own witnesses.

 

KEY: parole, evidentiary, hearings

Date of Enactment or Last Substantive Amendment: [October 25, 2007]2013

Notice of Continuation: February 15,2013

Authorizing, and Implemented orInterpreted Law: 77-27-5; 77-27-9; 77-27-11

 

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