Billings v. Oregon State Penitentiary

BUTTLER, P. J.

Petitioner seeks review of an order finding him guilty of violating a prison rule prohibiting assault. He contends that there is insufficient evidence to sustain that conclusion, because the hearings officer improperly found that information provided by confidential informants was credible and that the informants were reliable. We reverse and remand.

Petitioner was involved in a fight with another inmate, Chaffin, that occurred during lunch time in the inmate dining room. At his hearing, petitioner testified that Chaffin had stabbed him in the neck with a fork and that he then struck Chaffin in self-defense. Petitioner’s version of the fight was supported by another witness. A guard who had witnessed the incident stated that both inmates had been aggressive but that petitioner had thrown the first punch.

The hearings officer also considered a confidential report that contained brief verbatim statements made by three named inmates who claimed to have been eyewitnesses to the fight. The hearings officer found:

“In substance, those eyewitness inmate statements served to establish an exchange of words, followed by [petitioner’s] leaving his table, and hitting inmate Chaffin, followed by inmate Chaffin responding in like manner. Based upon their eyewitness accounting, the Hearings Officer finds said witnesses to be credible in the case at issue.”

At the time of petitioner’s hearing, 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 hearings officer did not find that the informants were reliable. He found that they were credible. It is not clear to us whether he found that they were credible because they said they were eyewitnesses or because, for example, they gave independent reports that were consistent with each other. As we pointed out in Solar v. OSP, 87 Or App 222, 742 P2d 611, rev den 304 Or 280 (1987), there has been continuous “confusion over what the terms ‘credibility’ and ‘reliability’ mean when evaluating evidence from unnamed informants.” If the informants are persons who are known to be reliable, one may accept as true their statements that they were eyewitnesses. If they were eyewitnesses, they were in a position to see what they say they saw in the case at hand and their information can be believed.¹ See Shumway v. OSP, 294 Or 462, 657 P2d 686 (1983).

It may be that the hearings officer had sufficient information on which to find that the informants are reliable. He made no such finding.

Reversed and remanded for reconsideration.

1 We agree with the concurring opinion’s elaboration of this point.