Prison Disciplinary Charges: Using Witness Statements to Prepare a Defense

Prison Disciplinary Charges: Using Witness Statements to Prepare a Defense

Prison disciplinary proceedings are a way of life for those incarcerated in America’s prisons.  This is because the various departments of corrections have a smorgasbord of applicable infractions that, unfortunately, are often applied inconsistently.  Thus, the majority of inmates will eventually find themselves the subject of a prison discipline proceeding.  When this occurs, they need to know what to do and how to defend themselves.  Locating witnesses and obtaining effective written witness statements are vital components of an effective defensive strategy.

Types of Witnesses

Witnesses come in many shapes and sizes.  Outside of prison, these can be victims, law enforcement personnel, bystanders, and others.  Generally speaking, witnesses are usually open to speaking with investigators.  In a prison setting, witnesses can be everyone from fellow inmates to guards to even character witnesses who are not incarcerated.  Unfortunately for those charged with a prison disciplinary infraction, few witnesses will come forward or be willing to help the accused defend themselves against allegations of misconduct.  Thus, an additional level of difficulty is constantly present when locating and understanding who is a witness to any particular act.
Generally speaking, there are four types of applicable witnesses when it comes to prison disciplinary proceedings:

1) Parties to the action: these witnesses generally include those engaged in the alleged misconduct.  For example, in a fight, the two (or more) parties involved would be the parties to the action.  Or, in the case of an inmate being caught utilizing an intoxicant, the inmate would be the sole party to the action.  And if the infraction involves the conduct of someone outside of prison, both the inmate and the outside party would be the parties to the action.

2) Reporting officer: Usually this is the guard who witnessed the misconduct and initiated the disciplinary proceedings by completing an incident report.  Sometimes multiple staff members will write reports that are used in the disciplinary process.

3) Bystanders: these are all who might have witnessed, or have knowledge of, events relating to the allegation.  They can be defense witnesses who can refute an allegation of misconduct by testifying to a different set of circumstances or even completely different actions (thus, not truly bystanders, but observers of actions in a different location who can disprove a staff member’s allegations).  These persons can be both inmates and officers.

4) Character witnesses: these persons can be anyone who knows the inmate and his character.  Generally speaking, the best character witness is someone who has knowledge of the accused inmate in the context in which the alleged misconduct occurred.  For example, if an inmate has been charged with misconduct in the visiting room, this could be a frequent visitor of the inmate’s, a fellow inmate who is often in the visiting room when the inmate was present, or even a visiting room guard.

Locating and Contacting Witnesses

When an inmate is charged with a prison disciplinary policy violation they must evaluate who might have been a witness to the alleged misconduct.  An effective way to do so is to make a list of everyone who was present when the alleged misconduct occurred.  These could be parties to the action, the reporting officer, bystanders (both inmates and guards), and character witnesses who can testify as to how the accused inmate has typically reacted in like situations.

Once the list of potential witnesses is compiled, the inmate can consider the local prison politics and the likelihood that each witness will provide the desired testimony.  In this realm, the prison culture really shows itself; the accused inmate should first speak with those that they associate with on a regular basis.  Generally, this means fellow inmates of similar race and/or religion, or from their geographic area.  Since the very structure of prison seems to force prisoners into clusters (more typically known as “cars”), the inmate will want to first speak with those who associate with them and, thus, are more likely to be a cooperating defense witness.

After their own associates, the inmate should branch out and speak with more neutral parties.  These could be inmates of other races or religions, but who appear to be more accessible, such as co-workers on a job detail or cell neighbors.  Sometimes an accused inmate will get lucky, and someone from this group will be willing to assist them in their defensive efforts.  The inmate shouldn’t bother with uncooperative or non-accessible inmates; there is no value in attempting to force a recalcitrant inmate to participate in the process.

After the inmate group has been perused, the accused prisoner should speak with any staff members who might have witnessed the incident.  This should be done with a certain amount of caution since guards tend to be adversarial and often won’t want to be involved in contradicting the events reported by a fellow officer.  If the inmate finds a sympathetic guard who witnessed the alleged misconduct, or who can present contradictory testimony, the inmate should ask them if they would be willing to be called to the disciplinary hearing as a witness.  An inmate shouldn’t expect a guard to write a statement, but they can in some cases make a very good witness.

The final kind of witness is the character witness.  In my practice, I’ve always found that it is a good idea to gather several written character witness statements.  These could be from family, friends (both incarcerated and not), and other associates.  While they might not be able to testify as to the exact alleged misconduct, they can provide glowing testimony which can help place the inmate in a better light and create a record from which to appeal.  Guards can also be character witnesses if they have observed an inmate for a period of time, to demonstrate how an inmate would act in a certain situation.

Obtaining Witness Statements

Once witnesses are located, it is time for the accused inmate to inquire about written statements.  It is advised that the inmate present the issue in as witness-friendly a format as possible.  For example, if the witness is a sympathetic inmate, they could present it as a way of supporting a fellow inmate or a friend.  If the witness is a family member, it could be presented as a way to support a loved one.  If the witness is a guard, it could be presented as a way for the truth to be brought to light and the record to be corrected. Regardless of how the request is formulated, the inmate requesting the statement must make the process as easy, and attractive, as possible for the potential witness.

Once a potential witness has expressed a willingness to testify, the inmate should ask the witness to write a one-page statement that states what they witnessed.  It is a good idea for the accused inmate to present the specific defensive component to which they need the witness to testify.  This way their testimony is focused and relevant.  The inmate should never ask for the witness to testify to something which they did not witness first-hand.  It would be better for the witness to testify to a small component of the accused inmate’s defense than to be caught testifying falsely.

After the witness has penned their statement, the inmate can proceed in one of two ways.  He or she can either offer to type up the statement for the witness, or the inmate can simply ask the witness to sign and date the handwritten statement.  While a typed statement is cleaner and more professional, both are useful.  It is advised that the inmate make two copies of the statement.  A copy should be distributed to the witness for their records, the second for the inmate’s records, and the original to be presented to the hearing body.

Effectively Utilizing Witness Statements

The accused inmate should prepare a defensive packet prior to any hearings taking place.  This defensive packet should include copies of all documentary evidence, witness statements, applicable policy, and the inmate’s personal written statement to the hearing body.  This way the inmate has everything they’ll need in order to defend themselves against any allegations.  The defense packet should be thought of as an attorney’s trial notebook where everything needed to defend a client is contained.

Depending upon the prison system in which the inmate is incarcerated, hearing protocols can vary significantly.  What remains the same is that constitutional protections generally require that the inmate be allowed to present documentary evidence on their own behalf to prove their innocence of any alleged misconduct.

While the majority of inmates are found guilty during these allegedly impartial hearings, written statements can easily create a record on which to base an appeal.  By cementing witness testimony in writing, the accused inmate will have a complete record of their defense which can be used to prove that the hearing officer did not evaluate all of the evidence presented.

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