Wiggett v. Oregon State Penitentiary , 85 Or. App. 635 ( 1987 )

ROSSMAN, J.

Petitioner seeks review of an order of the superintendent of the Oregon State Penitentiary, finding him to be in violation of prison rules for attempting to assault another inmate. He argues that the evidence does not support the superintendent’s finding or, in the alternative, that the sentence was unjust in the light of the circumstances.

An unnamed informant advised Captain Barth, Institution Security Manager, that petitioner, his brother Randy¹ and another inmate had attacked inmate Peterson and threatened to do worse if Peterson did not send money to a certain third person. Barth reported the informant’s statements “verbatim” in a confidential memorandum of March 10,1986. In that same confidential memorandum, he gave the informant’s name, stated his opinion that the informant was reliable and credible and gave two examples of accurate information that the informant had provided in the past.

The informant took a polygraph examination, and the examiner’s opinion was that he was truthful. Barth wrote another confidential memorandum, dated March 14, 1986, explaining the polygraph questions and the examiner’s results. In a written statement made on that same date in the course of the examination, the informant stated that an “intermediary” had advised Peterson to send the money to Susan Rayn in Veneta, Oregon.

The prison Disciplinary Committee held a hearing on March 14, 1986, on the charges that petitioner had violated rules against assault and conspiracy. After a short colloquy with the hearings officer, petitioner became upset and left the room. The hearing was reconvened on March 20, 1986, at which time petitioner testified that he had left the yard at the time of the alleged assault and that he did not know who Peterson was. Petitioner testified that his fiancee is Susan Rayn and that she used to live in Veneta. The committee found that petitioner had violated the rule against assault. The superintendent amended the finding to attempted assault, because there was no evidence that Peterson had suffered any specific injuries.

At the relevant time, OAR 291-105-041(5) provided:

“The evidence considered by the Hearings Officer will be of such credibility as would be considered by reasonable persons in the conduct of their affairs.

“(a) When unidentified informant testimony is presented to the Hearings Officer, the identity of the informant and the verbatim statement of the informant shall be revealed to the Hearings Officer.

“(b) 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.”

The basic evidentiary standard, that the evidence have such “credibility” as would be considered by reasonable persons in the conduct of their affairs, is essentially identical to the standard applicable to other administrative proceedings. ORS 183.450(1).² Our scope of review is the same as for a contested case under the Administrative Procedures Act. ORS 183.482(8); ORS 421.195.

This case turns on the credibility of petitioner and the unnamed informant. The hearings officer made no credibility findings concerning petitioner, but made two separate findings that the informant is credible and reliable. The first was based solely on the information contained in Barth’s memorandum of March 10,1986:

“Capt. Barth submitted to the Hearings Officer a memorandum, dated March 10, 1986, in which the inmate informant was identified, as well as the reason he considered the informant to be credible and reliable in the case at issue. Further, this memorandum contained additional information concerning the informant’s status as a past and proven informant. The Hearings Officer finds Capt. Barth’s informant to be credible and reliable in the case at issue, based on Capt. Barth’s information, and the informant’s status as an eyewitness to the incident.”

The second was based on the polygraph evidence explained in Barth’s memorandum of March 14,1986:

“In a memorandum dated March 18, [sic] 1986, Capt. Barth provided information which explained that the informant in the case at issue was administered a polygraph examination by Detective Fox of the Oregon Department of State Police. Detective Fox is a fully certified, trained, and licensed polygraph examiner under the provisions of the Oregon Revised Statutes. The polygraph examination centered around specific statements written by the inmate informant that concerned Inmate Wiggett’s involvement in the case at issue. Inmate Wiggett was described, amongst other issues, as having participated in assaulting Inmate Peterson in the Recreation Yard, and that he did hit Inmate Peterson on the left side of the head. It was Detective Fox’s conclusion that the informant had been truthful in the written information he provided during the course of the polygraph examination.”

Petitioner asserts that the evidence of the polygraph examination and results was not admissible, because it was not “of such credibility as would be considered by reasonable persons.” We are not persuaded by his argument. The only authority on which he relies is State v. Brown, 297 Or 404, 687 P2d 751 (1984). The concerns which led the Supreme Court in Brown to exclude polygraph results in the absence of a stipulation are simply not present here. This disciplinary proceeding is not subject to the Oregon Evidence Code; the Supreme Court held that to be a critical factor. State v. Brown, supra, 297 Or at 445. Additionally, the threat of prejudice to the petitioner in the disciplinary setting as a result of undue reliance on the polygraph results is diminished because the hearings officer, presumably familiar with the controversy concerning polygraphs, is not as likely as a jury to be overwhelmed by the results. See State v. Fink, 79 Or App 590, 720 P2d 372, rev den 302 Or 36 (1986). Moreover, there is here no concern for undue delay which was present in State v. Brown, supra.

Conversely, practical concerns of prison disciplinary proceedings suggest the utility of polygraph results in testing the credibility of an informant or of the charged inmate, if he so desires. The hearings officer should have a way, whether perfect of not, of verifying an account provided by an. informant, who is often the only witness to a violation, while, at the same time, protecting his identity. The polygraph accommodates both objectives, even though it may not always be reliable. The exclusion of polygraph evidence would unduly formalize disciplinary proceedings, which are imperfect at best. The referee was justified in relying on it as one, but not the only, basis for deciding that the informant was credible.

We are aware that our holding may appear to be in conflict with Higley v. Edwards, 67 Or App 488, 492, 678 P2d 775 (1985), where we held that it is error to admit results of a polygraph examination over the objection of a party in an APA proceeding before an ad hoc sheriffs review board concerning the firing of an employe. To the extent that that opinion suggests a result in all cases subject to review as under the APA, it is disapproved. Additionally, we note that, although the issue is not dispositive, this case is distinguishable; defendant did not object to the admission of the polygraph evidence. Graham v. OSP, 83 Or App 567, 733 P2d 39 (1987), and Branton v. OSP, 83 Or App 571, 732 P2d 926 (1987), are also disapproved to the extent that they suggest, in reliance on Higley v. Edwards, supra, that polygraph evidence is inadmissible over the objection of a party in a prison disciplinary proceeding to test the credibility of an unnamed informant.

There is other evidence exclusive of the polygraph results which supports the hearings officer’s findings that the informant was credible and that his information was reliable. The hearings officer’s first finding concerning the credibility of the informant and the reliability of his information was based on the information contained in Barth’s confidential memorandum of March 10, 1986. Barth gave the informant’s name and stated that the informant’s information had been accurate in the past. That information alone would not be sufficient to prove that the informant was credible in this case. Shumway v. OSP, 294 Or 462, 463, 657 P2d 686 (1983). However, the memorandum also describes two separate occasions when the informant’s information had been accurate; it therefore stated an independent factual basis for finding that the informant had provided reliable information in the past, and was sufficient to support the hearings officer’s findings that the informant was credible in this case. See Shumway v. OSP, supra, 294 Or at 467. Additionally, petitioner’s testimony that his fiancee was Susan Rayn, formerly of Veneta, corroborated the informant’s written statement that Peterson was told to send money to Rayn, which provided the motive for the assault.

The hearings officer indicated that, in his determination of the credibility and reliability of the informant, he was relying in part on the fact that the informant was an eyewitness to the alleged assault. While that fact certainly would not be relevant to the issue of the informant’s credibility, see Shumway v. OSP, supra, 294 Or at 466 n 1, assuming other evidence shows that the informant is credible, the fact that he was an eyewitness to the alleged assault is certainly relevant to the reliability of the information he has provided, and it is an inquiry which the hearings officer is required to make under OAR 291-105-041(5).

Petitioner’s remaining assignment has no merit.

Affirmed.

1 In Wiggett (Randy) v. OSP, 85 Or App 646, 738 P2d 586 (1987), petitioner’s brother seeks review of a sanction imposed on him for the same alleged incident. The two cases are identical in all essential respects, and our decision in this case therefore determines our decision in that case.

2 ORS 183.450(1) refers to the conduct of a person’s “serious” affairs; we see no indication that the Corrections Division intended to provide a lower evidentiary standard for disciplinary cases by omitting that word.