No. 30363 (Amendment): R671-517. Evidentiary Hearings and Proceedings

DAR File No.: 30363
Filed: 08/23/2007, 12:24
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule provides process related information for conducting and preparing for an evidentiary hearing at the Board of Pardons.

Summary of the rule or change:

Changes to this rule are process-related and provide necessary clarification about preparation and proceedings for an evidentiary hearing.

State statutory or constitutional authorization for this rule:

Sections 77-27-5, 77-27-9, and 77-27-11

Anticipated cost or savings to:

the state budget:

The changes do not introduce costs or savings to the state as changes relate to the process and preparation for evidentiary hearings.

local governments:

The changes do not introduce costs or savings to local government as changes relate to the process and preparation for evidentiary hearings.

small businesses and persons other than businesses:

The changes do not introduce costs or savings to small businesses as changes relate to the process and preparation for evidentiary hearings.

Compliance costs for affected persons:

The changes do not introduce costs to affected persons as they are simply process and preparation changes related to conducting evidentiary hearings.

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

I have reviewed the requested changes and determined there is no fiscal impact on businesses associated with changes for this rule. Curtis Garner, 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)
Administration
448 E 6400 S
SALT LAKE CITY UT 84107-8530

Direct questions regarding this rule to:

Nannette Johnson at the above address, by phone at 801-261-6485, 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:

10/15/2007

This rule may become effective on:

10/22/2007

Authorized by:

Curtis L Garner, Chairman

RULE TEXT

R671. Pardons (Board of), Administration.

R671-517. Evidentiary Hearings and Proceedings.

R671-517-1. Evidentiary Hearings and Proceedings.

When a parolee has entered a not guilty plea to an allegation that parole has been violated and the board wishes to consider the allegation, the Board shall hold an evidentiary hearing unless the parolee has been convicted of a criminal charge and revocation is ordered under R671-518, Conduct of Proceedings when Criminal Charge Results in Conviction.

 

R671-517-2. Confidentiality.

All hearings are open to the public, unless the Board decides that confidential information must be discussed. Only those portions of the hearing during which confidential information is discussed may be closed. Confidential hearings shall be conducted as set forth in R671-520.

 

R671-517-3. Notification.

The Board shall notify all parties of the time, date, and place of the hearing and of the disputed allegations(s). In this notification, the parolee shall be notified of his or her right to[ counsel. The parolee may] be represented by an attorney of choice at the parolees own expense, or such counsel as may be [as] provided by the Board. The notification also shall inform the parolee of the right to confront and cross examine witnesses (absent a showing of good cause for not allowing the confrontation), and the right to present rebuttal evidence.

 

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

At least ten (10) days prior to the hearing, unless otherwise directed by the Board, each party shall provide to the other and to the Board a list of anticipated witnesses, documents, and other evidence to be submitted at the hearing, together with a summary of the relevance of each anticipated piece of evidence. Failure to comply with this rule may result in sanctions including, but not limited to, exclusion of the non-disclosed witnesses and evidence.

 

R671-517-5. Presided Over by a Single Board Member.

The hearing may be presided over by a single Board member or a hearing officer as the Board chairperson designates. The person presiding may, sua sponte, or upon motion of either party, exclude evidence that is irrelevant, unduly repetitious, or privileged in the courts of Utah. The person presiding may further take judicial notice of undisputed facts and may rule on motions offered or pending during the hearing.

 

R671-517-6. Department of Corrections Bears Burden of Evidence.

The Department of Corrections bears the burden of establishing a parole violation by a preponderance of the evidence. All testimony shall be given under oath. Strict rules of evidence do not apply. Hearsay evidence is admissible and shall be given such weight as the person presiding considers appropriate; however, no finding of guilt shall be based solely on hearsay evidence, except where such evidence would be otherwise permitted in a court of law. The Fourth and Fifth Amendment exclusionary rules do[es] not apply to parole revocation[s] hearings.

 

R671-517-7. Opening Statements.

At the hearing, each party may make a brief opening statement, beginning with the State[ Department of Corrections]. After opening statements, the State[ Department] presents its evidence. Upon conclusion of the State's[ Department's] case, the parolee may present evidence in response. If the parolee, in his or her defense, raises issues not adequately addressed by the State's[ Department's] case in chief, the person presiding may[shall] allow the State to present rebuttal evidence in response to that issue. Upon conclusion of all evidence, the person presiding may allow each party a brief closing argument.

 

R671-517-8. Written Submissions[Recommendation].

Any brief or legal memorandum submitted to the board as part of an evidentiary hearing shall be delivered to the board at least ten (10) calendar days prior to the hearing, and shall include proof of service on the opposing party. The opposing party may furnish its written response to any such submissions no later than three (3) calendar days prior to the hearing. Such submissions shall be no longer than ten (10) double-spaced, typed pages, excluding exhibits. Either party may petition the hearing official for permission to exceed these length requirements or shorten these time requirements, and the decision whether to allow this shall rest in the sole discretion of the hearing official.[After closing arguments, the person presiding may tell the parolee his or her recommendation. However, the person presiding shall inform the parolee that the recommendation does not bind the Board, which makes its decision by majority vote of all Board members.]

 

R671-517-9. Continuances.

All requests to continue a scheduled evidentiary hearing shall be submitted to the board in writing, at least seven (7) calendar days prior to the scheduled hearing, and shall contain either a stipulation of the parties, or a statement of why there is an extraordinary need for continuance and why such a continuance will not prejudice the interests of the other side. The decision to grant or deny a continuance rests in the sole discretion of the hearing official. In the event a continuance is granted, each party shall be responsible for notifying its own witnesses.

 

KEY: parole, evidentiary, hearings

Date of Enactment or Last Substantive Amendment: [January 1, 1999]2007

Notice of Continuation: September 11, 2003

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