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In Hartman v. OSP, supra, 50 Or App at 421, the information was determined to be believable because there were two informants, both of whom were eyewitnesses, and each description of the events was consistent with the other's description.
Summary of this case from Solar v. Oregon State PenitentiaryOpinion
No. 06-80-324, CA 18538
Argued and submitted December 2, 1980
Affirmed February 17, 1981
Judicial Review from Corrections Division.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for petitioner.
Scott McAlister, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were James M. Brown, Attorney General, John R. McCulloch, Jr., Solicitor General, and William F. Gary, Deputy Solicitor General, Salem.
Before Joseph, Presiding Judge, and Warden and Warren, Judges.
JOSEPH, P.J.
Affirmed.
This matter is before us on a petition for judicial review of an order by which petitioner was adjudged guilty of assault after a disciplinary hearing. He assigns two errors, only one of which requires discussion.
The other claims that the disciplinary committee erred in failing to conduct an investigation pursuant to OAR 291-105-058(5)(a), which provides in part that "[a]n investigation shall be conducted upon the inmate's request * * *." Petitioner made no request, artfully or inartfully (Geddes v. OSP, 26 Or. App. 303, 552 P.2d 568 (1976)), for an investigation.
Petitioner contends that the committee failed adequately to substantiate the credibility of confidential informants pursuant to OAR 291-105-041(e). The rule provides that the identity of the informant or the informant's statement be revealed to the hearings officer and that the hearings officer must have a basis for determining that the informant is reliable.
"(1) When unidentified informant testimony is presented to the Hearings Officer, the identity of the informant or the statement of the informant, or both, shall be revealed to the Hearings Officer.
"(2) Information must be submitted to the Hearings Officer upon which the Hearings Officer can find that the informant is reliable in the case at issue."
Although it is unclear whether the hearings officer knew the identity of the informants, the statements of the informants were disclosed and appear in the record. The reliability of the information was established by the fact that the informants were eyewitnesses, each description of the events was consistent with each of the other informants' descriptions, and the statements were accurate with respect to events which were not in dispute. Therefore, the informants' statements satisfied the rule.
Petitioner does not challenge the validity of the rule.
Petitioner relies on Allen v. OSP, 33 Or. App. 427, 576 P.2d 831 (1978), which interpreted an earlier rule which required the record to show that the informant was both credible and reliable. The new rule, under which this proceeding was held, is different. Under it the information supplied by the informants was properly considered. See Grisel v. OSP, 47 Or. App. 673, 614 P.2d 1231, rev allowed (1980).
See Bartholomew v. Reed, 477 F. Supp. 223 (D Or 1979).
Affirmed.