The opinion
JONES, J.,
concurring.
Oregon Administrative Rule 291-105-041(5) is a Corrections Division administrative rule which is sorely in need of clarification. Serious drafting defects have resulted in a rule that causes uncertainty and unpredictable results in the rule’s administration. This case should convey the message that this rule needs re-examination.
Since the United States Supreme Court decided Aguilar v. Texas, 378 US 108 , 84 S Ct 1509 , 12 L Ed 2d 723 (1964), and Spinelli v. United States, 393 US 410 , 89 S Ct 584 , 21 L Ed 2d 637 (1969), the terms “reliable” and “credible” have achieved a degree of special meaning in the law when evaluating informant information. 1 These cases *469 use the term “credible” to describe an informant who tells the truth, and the term “reliable” to describe the factual basis for information or evidence provided by the informant. While I am not suggesting that the two-pronged constitutional test which has evolved from these two search warrant cases should be applied to prison disciplinary hearings, I note that the drafters of OAR 291-105-041(5) have performed a seeming aberration in the use of the terms “reliable” and “credible.” The drafters have reversed the usage found in 18 years of judicial decisions that have shaped and honed the meaning of these terms in a related area of the law. This administrative rule is an example of how substantial confusion can result from the careless use of these two terms — for what Justice Frankfurter in dissent referred to as the “use [of] language not with fastidious precision,” United States v. Rabinowitz, 339 US 56, 72 , 70 S Ct 430 , 94 L Ed 653 (1950). 2
This imprecisely drafted administrative rule apparently attempts to adopt the “veracity” prong of Aguilar . As stated in Aguilar , the officer must give the magistrate “some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed * * * was ‘credible’ or his information ‘reliable.’ * * *.” 378 US at 114 .
As can be readily seen, this administrative rule has reversed the terminology, requiring the hearings officer to *470 find the informant “reliable” and the information or evidence “credible.” 3 This inconsistency with past judicial definitions creates substantial confusion in applying the rule. Witnesses are “credible,” not information or evidence. Determining the informer’s veracity tests his “credibility.” 4 The “reliable” standard tests what the informant based his conclusions upon and how the informant acquired the information. I find that “reliable” in the prison disciplinary setting should mean the “trustworthiness” of the information. 5 Even if the hearings officer were to find that the informant had the credibility of the clergy, the hearings *471 officer must still probe the reliability of the informant’s conclusions: Upon what facts did the informant draw his conclusions? How were these facts obtained? What was seen or heard firsthand? Is there hearsay on hearsay involved? 6
In Grisel v. OSP, 290 Or 719, 721 , 625 P2d 651 , cert den 454 US 846 (1981), a 4-3 court decided in effect that the credibility of the informant could be established by the bare assertion “I received information from an informant * * * whose information has proven reliable in the past * * I agree that it is necessary to overrule Grisel, recognizing that such a mere conclusion is insufficient even in a prison disciplinary hearing. 7 I find further support for overruling Grisel because of the incongruent use of the terms “reliable” and “credible” in the administrative rule. The misuse of these two terms prevents this rule from achieving incorporability with ti:e established definitions of these terms when dealing with informants. I offer no resolution beyond a simple changing of the terms in the rules. I would caution authors of administrative rules to use care when tempted to incorporate or alter terminology which has received prolonged judicial attention. The courts should not be asked to create definitional double standards.
As the majority points out, the record shows no information on which the hearings officer could decide the reliability of the information or the credibility of the unnamed informant other than the subordinate clause “who has previously proven to be reliable” in the sentence quoted *472 from the misconduct report. This is a mere conclusory statement whereby only the guard passes on the credibility of the informant. As the majority concluded, that brief clause in the report is not a sufficient basis for an independent finding by the hearings officer- as to the credibility of the informant. I criticize this practice for the same reasons we are overruling Grisel. The Grisel majority held that the hearings officer need make no further inquiry into the informant’s past or present “reliability.” What the hearings officer really failed to do is to make proper inquiry into the informant’s “credibility.” She had no independent factual basis for concluding that the informant had provided reliable information in the past which would have consequently tended to establish his credibility.
The present case affords an appropriate vehicle to correct the confusion in the administrative rule. Since the result reached in this case is correct, I concur.
Carson, J., joins in this concurring opinion.
See, Dawson v. State, 14 Md App 18, 35, 284 A2d 861, 870 (1971) (Moylan, J., concurring). Judge Moylan, long recognized as an expert on search and seizure, explains the distinction between (1) an informant being credible and (2) his information being reliable:
“The intrinsic approach to veracity is an alternative one in that Aguilar commands that the magistrate ‘be informed of some of the underlying circumstances from which the officer concluded that the informant’ was ‘credible’ OR ‘his information reliable.’ * * * Arguably, supporting facts which show that an informant’s information is ‘reliable’ thereby show also that the informant is, on that occasion at least, ‘credible.’ Unless the alternative phraseology is meaningless, the informant’s ‘credibility’ would seem to involve his inherent and ongoing character as a person — his reputation and demonstrated history of honesty and integrity. Informational ‘reliability,’ as something separate from its source’s credibility, would seem to involve some circumstances assuring trustworthiness on the particular occasion of its being furnished. Although hypothetical examples are difficult to conjure up in the context of police informers, it would certainly follow that any circumstance qualifying as a trustworthy exception to the hearsay rule in a trial setting would, a fortiori, qualify in a probable cause setting. * * *” (Footnote omitted.)
The current rule revises a rule previously promulgated in 1973, 1976 and 1979. The original rule, adopted in 1973, used the terms “credible” and “reliable” as they are applied in Aguilar and Spinelli. See former Rule IV(6), quoted in Bekins v. OSP, 19 Or App 11, 22 , 526 P2d 629 (1974).
The 1976 revision expanded the rule but retained the language relating to “reliable” and “credible.” See OAR 291-40-115(5)(e) (1976).
The 1979 amendment to the rule was the forerunner of the present confusion when the separate requirements of reliability and credibility were combined into a single test requiring a showing only “that the informant statement is reliable.” See OAR 291-40-115(5)(e)(2) (March, 1979).
Following Bartholomew v. Reed, 477 F Supp 223, 227-28 (D Or 1976), modified on other grounds sub nom Bartholomew v. Watson, 665 F2d 915 (9th Cir 1982), the current rule was promulgated, reversing the terms “reliable” and “credible” from their original 1973 context.
The hearings officer must form an independent determination based on his informed judgment. In order to be informed, the hearings officer must be provided some information about the informant’s past performance. For example:
1. As a result of previous information was evidence discovered which the informant indicated would be found?
2. Was previous information sufficient to initiate prior disciplinary action, or was it only of minor value?
3. What was the result of prior disciplinary hearings?
4. What factors previously made the informant credible?
5. Has the informant always furnished good information? If the informant has furnished bad information in the past, why should this not derogate his credibility?
We are not suggesting that an exhaustive list is appropriate. There are no ritualistic incantations which can satisfy each hearing.
Aguilar and Spinelli loosely use the word “reliable” in two different senses. Aguilar suggested that an inquiry be made into the reliability of the information to determine its trustworthiness. Spinelli speaks of “reliability” as a test of the method by which the informant acquired the information — eyewitness, hearsay, etc. See Note, Probable Cause and The First-Time Informer, 43 U Colo L Rev 357 (1972).
The concurring opinion of Justice White in Spinelli put the question succinctly, 393 US at 424 :
* * [D]id the information come from observation, or did the informant in turn receive it from another? Absent additional facts for believing the informant’s report, his assertion stands no better than the oath of the officer to the same effect. * * *”
See also Carpenter v. OSP, 41 Or App 343, 346 , 597 P2d 1253 (1979).
The statement “I saw Grisel stab Smith” was sufficient to establish the reliability of the informant’s information or evidence since it was based on firsthand knowledge. The majority opinion in Grisel states petitioner’s sole complaint was that this statement was insufficient. If so, Grisel was properly deoiled. However, the court considered the issue of the credibility of the informant in stating “a showing that the prison officer knows that the information of the informant has proved reliable in the past is some evidence from which the hearings officer can find reliability.” 290 Or at 722 .