On appeal from State of New Jersey, Department of Corrections.
J. H. Coleman, Brody and Muir, Jr. The opinion of the court was delivered by Brody, J.A.D.
A prison inmate appeals from an adverse determination in a disciplinary proceeding. Appellant was found guilty of attempting to introduce CDS into the prison, a violation of N.J.A.C. 10A:4-4.1(a) *.803/*.203, and extortion, a violation of N.J.A.C. 10A:4-4.1(a) *.006. The assistant superintendent of the prison sustained the hearing officer's adjudication. The penalties imposed were 30 days confinement in disciplinary detention, loss of 180 days commutation time, and 365 days confinement in administrative segregation.
Appellant contends that he was unable to defend himself against the charges because the authorities did not disclose any of the evidence, claiming it to be "confidential." The record of the proceedings does not contain a factual description of the evidence on which the hearing officer and the assistant superintendent relied or their evaluation of its worth. Thus appellant was put in the Kafkaesque predicament of having to defend against evidence that was totally undisclosed, and we are unable to review the adjudication because the record is incomplete.
N.J.A.C. 10A:4-9.15 strikes a balance between the need to protect informants from retaliation and the possible unfairness of concealing from an inmate evidence that is used to establish his guilt. Cf. Evid.R. 36 (qualified privilege not to disclose an informer's identity). The regulation reads in its entirety:
(a) A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act.
(b) Evidence relied upon in making a determination shall be specified on the Adjudication Form.
1. In any case in which the Disciplinary Hearing Officer or Adjustment Committee's decision of guilt is based on evidence which includes confidential information, adjudication shall contain:
i. A concise summary of the facts on which the Disciplinary Hearing Officer or Adjustment Committee concluded that the informant was creditable or his or her information reliable; and
ii. The informant's statement (either in writing or as reported) in language that is factual rather than a conclusion, and based on the informant's personal knowledge of the matters contained in such statement.
2. The Disciplinary Hearing Officer or Adjustment Committee is not permitted to disclose the ...