| (D) the right to have an attorney provided if the youth
is indigent.
(10) A youth's non-recorded oral statement is admissible
if it:
(A) relates facts that are found to be true and that
tend to establish the youth's guilt; or
(B) was res gestae of
the conduct that is the subject of the hearing or the arrest; or
(C) does not stem from law enforcement or TJJD staff
questioning of youth, even if the statement does not meet criteria
in subparagraph (A) or (B) of this paragraph; or
(D) is voluntary and bears on the youth's credibility
as a witness, even if the statement stems from law enforcement or
TJJD staff questioning of the youth.
(11) A youth's recorded oral statement (i.e., audio
recorded or visually or otherwise electronically recorded) concerning
his/her possible involvement in illegal activities is admissible if
it is accompanied by evidence on the recording that it was given after
the youth was advised of the rights in paragraph (9) of this subsection.
All voices on the recording must be identified and the recording must
be accurate and unaltered. A transcript of the recordings is not sufficient.
(12) A youth's admissible out-of-hearing/court statement
admitting he/she committed an offense is sufficient to prove the offense
only if it is corroborated by other evidence that the offense was
committed.
(f) Hearing Process.
(1) The hearing must be conducted by an impartial hearing
examiner appointed by the TJJD general counsel.
(2) The TJJD staff member requesting a hearing must
appoint a staff representative to appear at the hearing and to present
the reasons for the proposed action. The staff representative is also
responsible for making relevant information available to all parties
to the hearing.
(3) The hearing must be held in the community where
the alleged rule violation occurred unless the hearing examiner directs
that it be held in another location and determines that doing so will
not deprive the youth of his/her due process rights.
(4) All necessary parties must be present at the hearing
site unless the hearing is conducted by telephone pursuant to §380.9553
of this title.
(5) With the consent of the parties, witnesses may
appear via telephone or video conference unless the hearing examiner
determines that doing so will deprive the youth of his/her due process
rights. If a witness appears via telephone or video conference, all
required participants must be able to simultaneously hear one another.
(6) At the request of the staff representative or defense
attorney, the hearing examiner may sign and issue a subpoena to compel
the attendance of a necessary witness at the hearing or the production
of books, records, papers, or other objects. A person who testifies
falsely, fails to appear when subpoenaed, or fails or refuses to produce
material under the subpoena is subject to the same orders and penalties
as a person who takes those actions before a court.
(7) Before the hearing, the hearing examiner may review
copies of any documentation previously provided to the youth's attorney
except for those documents that relate solely to dispositional criteria.
The hearing examiner may review information relating solely to dispositional
criteria only if the hearing proceeds to disposition.
(8) To protect the confidential nature of the hearing,
persons other than the youth, the youth's attorney, the staff representative,
and the youth's parent/guardian may be excluded from the hearing room
at the discretion of the hearing examiner; however:
(A) observers may be permitted with the consent of
the youth and the youth's attorney; and
(B) any person except the youth's attorney or the staff
representative may be excluded from the hearing room if his/her presence
causes undue disruption or delay of the hearing. The reason(s) for
the youth's exclusion must be stated on the record.
(9) A victim who appears as a witness must be provided
a waiting area that eliminates or minimizes contact between the victim
and the youth, the youth's family, and witnesses on behalf of the
youth.
(10) The hearing is conducted in two parts: fact-finding
and disposition.
(A) The purpose of the fact‑finding is to establish
whether there is a preponderance of evidence to prove the youth engaged
in the alleged misconduct.
(B) The purpose of the disposition is to determine
whether revocation of parole status is appropriate under the circumstances.
(11) The hearing must be recorded. The hearing examiner
must retain copies of all documents admitted into evidence. Physical
evidence may be retained at the discretion of the hearing examiner;
however, if it is not retained, an adequate description of the item(s)
must be entered in the record by oral stipulation.
(12) Factual issues not in dispute may be stipulated
by the staff representative and the youth's attorney. Such stipulations
must be made on the record of the hearing.
(13) The youth must be given the opportunity to respond
"true" or "not true" to each allegation before any evidence concerning
the allegation is heard.
(A) The youth has a right to respond "not true" to
each allegation and to require that proof of the allegation be presented
at the hearing.
(B) A response of "true" to any allegation is sufficient
to establish each and every element necessary to prove that allegation
without the presentation of any other evidence.
(14) The hearing examiner must administer an oath to
all witnesses to testify truthfully.
(15) With the exception of the youth and the staff
representative, any person designated as a witness may be excluded
from the hearing room during the testimony of other witnesses and
may be instructed to refrain from discussing his/her testimony with
anyone until all the witnesses have been dismissed.
(16) The hearing examiner may question each witness
at the hearing examiner's discretion. The youth's attorney and the
staff representative must be given an opportunity to question each
witness.
(17) The hearing examiner may allow a witness to testify
outside the presence of the youth if doing so appears reasonable and
necessary to secure the testimony of the witness. If the youth is
excluded from the hearing room during testimony, the youth's attorney
must be present during the testimony and must have the opportunity
to review the testimony with the youth before questioning the witness.
(18) The youth may not be called as a witness unless,
after consulting with his/her attorney, the youth waives his/her right
to remain silent on the record.
(A) The youth's decision not to testify does not create
a presumption against him/her.
(B) A youth who waives his/her right to remain silent
may be questioned only concerning those issues addressed by the youth's
testimony.
(19) The hearing examiner must rule immediately on
any motions or objections made in the course of the hearing. The motions,
objections, and rulings must be included in the hearing examiner's
written report.
(20) The hearing examiner may, upon his/her own motion
or the good cause motion of any party, recess or continue the hearing
when doing so is necessary to ensure an informed fact finding.
(21) After the presentation of all evidence pertaining
to the factual issues raised at the hearing, the hearing examiner
must announce his/her findings on those issues.
(A) The hearing examiner may find that the evidence
suffices to prove conduct other than the conduct that was originally
alleged if the original allegation gave sufficient notice of the conduct
proved.
(B) Regardless of the evidence, the hearing examiner
may not find a criminal offense more serious than the offense that
was originally alleged unless the original allegation has been amended
on the record and after notice to the youth's attorney.
(C) If the hearing examiner finds any allegation to
be true, the hearing proceeds to disposition. If the hearing examiner
does not find any allegation to be true, the hearing is adjourned
with no change in the youth's status.
(22) In the disposition phase, the staff representative
presents evidence to establish why he/she believes the youth's parole
status should be revoked. The youth is given the opportunity to present
evidence as to why his/her parole status should not be revoked, including
evidence of extenuating circumstances.
Cont'd... |
