22 AAC 05.455. Rules of evidence in disciplinary hearings; lesser included infractions

(a) A prisoner is presumed innocent of an infraction, and the facility has the burden of establishing guilt. A prisoner cannot be found guilty of an alleged infraction unless the hearing officer or a majority of the disciplinary committee, as applicable, is convinced from the evidence presented at the hearing that the prisoner's guilt is established by a preponderance of the evidence. The decision in the adjudicative phase of the hearing must be based only on evidence presented at the hearing. If a prisoner does not request the presence of the facility staff member who wrote the disciplinary report, the report may be considered as evidence by the disciplinary tribunal and alone may serve as the basis for a decision. Other hearsay evidence may be considered if it appears to be reliable. The decision in the dispositive phase of the hearing may be based on evidence presented at the hearing or contained in the prisoner's case record.

(b) If the disciplinary tribunal is not convinced from the evidence presented at the hearing that the prisoner is guilty of committing the infraction charged, the prisoner may be found guilty of a lesser infraction necessarily included in the infraction charged if the evidence presented at the hearing establishes the prisoner's guilt by a preponderance of the evidence.

(c) For purposes of this section, a lesser infraction is necessarily included in the infraction charged if (1) the lesser infraction is inherently related to the infraction charged, so that proof of the greater would ordinarily entail proof of the lesser, (2) the infraction charged requires the disciplinary tribunal to find a disputed fact that is not required for conviction of the lesser infraction, and (3) the evidence relied on by the disciplinary tribunal supports conviction of the lesser infraction.

History: Eff. 9/10/77, Register 63; am 1/9/87, Register 101; am 11/13/99, Register 152

Authority: AS 33.20.050

AS 33.30.011

AS 33.30.021

AS 44.28.030

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