Rule 5.108(a) applies the impartial decision maker requirement in Morrissey by requiring a neutral and detached hearing officer. In Morrissey, the Supreme Court concluded that the hearing did not need to be before a judicial officer. Rule 5.108(a) does not specify qualifications for the hearing officer, except that they must be neutral and detached.
Rule 5.108(e) applies the minimum due process requirements in Morrissey by largely mirroring those requirements. Rule 5.108(e) requires:
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written notice of the alleged violations of the terms and conditions of supervision,
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disclosure of non-privileged or non-confidential evidence regarding the alleged violation,
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the opportunity to be heard in person and present witnesses and documentary evidence relevant to the alleged violation, and
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the opportunity to confront and cross-examine witnesses, unless the hearing officer determines that a risk of harm to a witness exists.
Procedural requirements may vary by state. See People ex rel Chang v. Martuscello, 229 N.Y.S.3d 878, 882 (Bronx Cty. Sup. Ct. 2025) (the ICAOS provides a minimum threshold of due process that local procedures may supplement). Accordingly, if a hearing officer has questions regarding the application of due process in a particular retaking proceeding, consultation with local legal counsel is advisable to ensure compliance with applicable state law. Rule 5.108 does not itself confer a right to counsel; however, state law or governing procedures may provide for counsel depending on the circumstances of the case. The right to counsel is addressed in the next section, 5.8.6.1.