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Ban on Disciplinary Hearing Witnesses Struck Down

The court of appeals for the Ninth circuit held that prisoners have a right to call live witnesses at disciplinary hearings. The court held that a blanket Oregon prison rule banning all live witnesses at disciplinary hearings was unconstitutional. Rules in question prohibited prisoner testimony/witnesses at hearings. See: Bartholomew v. Watson, 665 F.2d 915 (9th Cir. 1982).

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Related legal case

Bartholomew v. Watson

[26] (2) Staff members who are working in the institution or whose duties take them within the institution may not be called as witnesses since such testimony is unduly hazardous to institutional safety and correctional goals.

[27] (3) Other persons may not be called as witnesses if their testimony is unduly hazardous to the witness, institutional safety and/or correctional goals or the testimony to be offered is not relevant and/or reasonably available.

[28] It is the state defendants' contention that the foregoing rules which restrict absolutely the calling of certain categories of witnesses do not violate due process in view of the administrative procedures provided by the rules for the presentation of facts within the knowledge of such witnesses.

[29] The rules provide that an inmate has a right to submit questions to be posed by the disciplinary committee or its designee to any person:

[30] (1) All questions which will assist in the resolution of the disciplinary proceedings, and the deponent is available, shall be posed.

[31] (2) The disciplinary committee may, in its discretion, allow the inmate access to the answers provided; except when the source of the information is another inmate, the answers will not be provided.

[32] The district court concluded that Wolff "envisioned a case-by-case determination of undue hazard" which might result in the calling of certain witnesses. In reaching this conclusion, the district court relied on the following language from Wolff: "Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases."418 U.S. at 566, 94 S. Ct. at 2980 (emphasis added).

[33] As pointed out by the district court, "(t)he testimony of inmate or staff members will, in most cases, be the most relevant evidence a prisoner could offer in his defense." The rules as drafted deny to all inmates the right to present material testimony without proof of any facts establishing a threat to institutional safety. We agree with the district court that such a restriction violates the suggestion of the Supreme Court in Wolff that the decision to preclude the calling of a witness should be made on a case-by-case analysis of the potential hazards which may flow from the calling of a particular person.

[34] The right to call witnesses is basic to a fair hearing. A blanket proscription against the calling of certain types of witnesses in all cases involving institutional security is an overreaction which violates minimal due process. That portion of the district court's judgment holding unconstitutional the rules prohibiting the calling of certain witnesses in all disciplinary proceedings without proof of any actual threat to constitutional security is affirmed.

[35] That portion of the judgment which upholds the procedures used in administrative proceedings is reversed. This matter is remanded to the district court for entry of a new order consistent with the views expressed herein.

General Footnotes

[36] *fn* We substitute the name of Robert J. Watson, the successor to the original defendant Amos E. Reed, as the Administrator of the Oregon Corrections Division, pursuant to Fed.R.App.P. 43.

[37] *fn** We substitute the name of Leola M. Gierloff, the successor to the original defendant T. G. Toombs, as the Superintendent of the Oregon Women's Correctional Center, pursuant to Fed.R.App.P. 43.

Judges Footnotes

Opinion Footnotes

[38] *fn1 In light of our massive backlog, we are grateful for defendants' forthright concession. It frees us to devote our time and energies to truly contested issues on this and other cases.

[39] *fn2 Even though the Wright decision arises from a direct appeal from the district court, rather than an appeal from a circuit court of appeals, this court is nonetheless bound by the ratio decidendi of the case. This is true although the case was affirmed summarily by the Supreme Court. As Mr. Justice Brennan observed in Ohio ex rel. Eaton v. Price,360 U.S. 246, 247, 79 S. Ct. 978, 979, 3 L. Ed. 2d 1200 (1959), "(votes) to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of the case...." See also C. Wright, Handbook of the Law of Federal Courts 495 (2d ed. 1970) ("Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits.") The Supreme Court has also held that "the lower courts are bound by summary decisions by this Court " "until such time as the Court informs (them) that (they) are not." " " Hicks v. Miranda,422 U.S. 332, 344-45, 95 S. Ct. 2281, 2289-90, 45 L. Ed. 2d 223 (1975) (quoting Doe v. Hodgson, 478 F.2d 537, 539, cert. denied sub nom., Doe v. Brennan, 414 U.S. 1096, 94 S. Ct. 732, 38 L. Ed. 2d 555 (1973).