Current through Register Vol. 43, No. 39, September 26, 2024
(a) Each
disciplinary hearing shall be conducted as follows:
(1) The hearing officer shall initially
inform the offender of the charges and take the offender's plea.
(2) The hearing officer shall then determine
guilt or innocence.
(3) The
hearing officer shall make a disposition, including the determination and
imposition of sentence if guilt was previously established.
(b) Initially, the hearing officer
shall read the disciplinary report to the offender, including the date, the
nature of the offense, the reporting employee's name, and a synopsis of the
observation. The officer shall ensure that the offender understands the charges
and that the offender received a copy of the disciplinary report. The officer
shall also explain the possible penalties if guilt is established. If the
hearing officer finds that the offender is incapable of self-representation,
the hearing officer shall continue the hearing as provided in K.A.R.
123-13-402(b)(1), until the offender regains the ability for
self-representation. For purposes of this subsection, "incapable of
self-representation" shall mean that the offender, due to physical or mental
disability, whether temporary or permanent, lacks the present ability to assist
in the offender's representation in the case. Illiteracy alone shall not be
deemed a sufficient basis to find that an offender is incapable of
self-representation.
(c) A staff
assistant shall be permitted to be with the offender at the disciplinary
hearing only as provided in K.A.R. 123-13-408. The hearing officer shall ensure
that the offender has staff assistance when required by K.A.R. 123-13-408.
(d) If the offender is disruptive
or refuses to be present, the hearing may proceed in absentia, and the record
shall indicate each reason for the offender's absence. The offender's staff
assistant, if so assigned, shall be present.
(e) The hearing officer shall entertain and
determine any motion for dismissal or objections to holding the hearing, as
well as any motions for additional witnesses beyond those identified already in
the witness list previously submitted. Additionally, the hearing officer shall
advise the offender of the following rights:
(1) The right to proceed to a determination
of guilt or innocence, and if necessary, the application of penalties;
(2) the right to receive staff
assistance in certain cases, according to K.A.R. 123-13-408; and
(3) any other procedural due process rights
applicable in the case.
(f)
(1) The
hearing officer shall then ask the offender to plead guilty, not guilty, or no
contest. The plea shall be entered if the presiding officer is assured that the
plea is made knowledgeably and without threat or promise of reward to the
offender.
(2) If the offender
refuses to plead, the hearing officer shall enter a plea of not guilty. A plea
of no contest shall be treated in the same manner as that for a plea of guilty.
If the offender pleads guilty or no contest, the offender shall waive the right
to a determination of guilt or innocence, but shall reserve the right to
participate in the penalty phase of the hearing to the extent of offering a
brief argument in mitigation of the penalty to be imposed. If the offender
pleads guilty or no contest, the offender shall not be allowed to introduce
evidence regarding the offender's guilt or innocence of the charge or charges.
(g) The hearing officer
shall, upon a plea of guilty or no contest, make a finding of guilt and conduct
a sentencing hearing, and may impose a sentence.
(h) If the hearing officer finds that the
case should be dismissed, the officer may dismiss the case on the officer's own
motion or on the motion of either party. The hearing officer shall give a brief
explanation of the basis for the dismissal on the record.
(i) Only the relevant facts shall be employed
in any determination of guilt or innocence. In the penalty phase, the
offender's entire facility record and other relevant facts, observations, and
opinions may be considered.
(j)
The hearing officer shall rule on all matters of evidence. Strict rules of
evidence, as used in a court of law, shall not be required, but the hearing
officer shall exercise diligence to admit reliable and relevant evidence and to
refuse to admit irrelevant or unreliable evidence.
(k) The hearing officer shall rule on all
matters of assistance for the accused offender in accordance with these
regulations. If the accused offender is furnished with staff assistance
according to K.A.R. 123-13-408, the staff assistant shall be permitted to fully
assist the accused and shall be permitted to question witnesses and present
arguments on behalf of the accused offender, except as otherwise provided by
these regulations.
(l)
(1) The disciplinary process shall, to the
extent possible, discover the truth regarding the charges against the offender.
The hearing officer shall be authorized to call and to examine any witness, and
each offender, staff member, volunteer, or contract employee called as a
witness by the hearing officer shall be compelled to appear. The hearing
officer may bring out the facts by direct examination or cross-examination but
shall not act as a prosecutor on behalf of the facility or charging officer
against the accused offender or as defense counsel on behalf of the offender.
All testimony and evidence shall be given or presented in the presence of the
accused offender. Testimony and evidence shall not be received by the hearing
officer or introduced outside the presence of the offender, except as provided
in subsection (m) of this regulation, K.A.R. 123-13-403(d), K.A.R.
123-13-402(b)(5), and these regulations.
(2) The hearing shall proceed as follows:
(A) The prosecution shall present its
evidence, and the defense shall be permitted to cross-examine, except as
otherwise provided by these regulations.
(B) The defense shall present its evidence,
and the prosecution shall be permitted to cross-examine.
(C) The prosecution may make a closing
argument. The defense may make a closing argument, and then the prosecution may
make a short rebuttal.
(m)
(1) If
the hearing officer determines that the testimony of any offender will subject
that offender to possible retaliation for having testified, the hearing officer
may perform either of the following:
(A)
Receive the testimony in confidence without confrontation or cross-examination
by the accused offender. The witness may be sequestered; or
(B) receive testimony from the investigator
who interviewed an offender informant and who relied on the confidential
information provided.
(2) The testimony of the offender witness
given under oath shall be examined and tested by the hearing officer. The
hearing officer shall question the testifying offender, as necessary, to
determine the veracity and weight of the testimony offered. The hearing officer
shall complete a credibility assessment form, which shall be available for
confidential review by the superintendent and commissioner.
(3) If the informant offender does not
testify, the hearing officer may establish the reliability of the information
provided to the testifying investigator by any of the following:
(A) The testimony of the investigator
regarding the reliability of the informant in the past, which shall include
specific examples of past instances of reliability;
(B) the testimony of the investigator
regarding the truthfulness of details that the investigator has been able to
verify through investigation;
(C)
corroborating testimony;
(D) a
statement on the record by the hearing officer that the hearing officer has
firsthand knowledge of the informant and considers the informant to be reliable
due to the informant's past record of reliability, which shall include specific
examples of past instances of reliability; or
(E) in camera review of material documenting
the investigator's assessment of the credibility of the informant.
(4) The accused shall be apprised
of the general nature of the confidential testimony, omitting those details
that would tend to identify the offender who gave the confidential testimony or
provided confidential information to the testifying investigator. The identity
of any confidential witness or of any offender informant shall not be disclosed
to the accused, to any other offender, or to any staff member not required to
complete the process. The staff assistant, if any, shall be permitted to be
present when the board receives testimony from the confidential witness or the
investigator, and the staff assistant may ask questions. The offender's staff
assistant shall not disclose the identity of the confidential witness or
offender informant to the accused, to any other offender, or to any staff
member not required to complete the hearing process. The testimony shall be
recorded, for confidential review by the superintendent and, as applicable, on
appeal, by the commissioner.
(n) The hearing officer may require the
accused to explain briefly what the purpose and nature of the testimony of a
witness will be. The request to call the witness may be denied or the testimony
reasonably and fairly restricted if the testimony meets any of the following
criteria:
(1) Relates to a matter already
disposed of;
(2) is clearly
irrelevant or immaterial;
(3) is
repetitious of other testimony; or
(4) is properly excluded for reasons
specified in K.A.R. 123-13-405a. The truth of the testimony shall be presumed
in making this decision.
(o) A witness request made at the hearing and
not previously submitted shall not be permitted unless exceptional
circumstances outside the control of the offender exist and the testimony would
most likely affect the outcome of the hearing. The hearing officer shall inform
the offender of any witness deemed waived by the failure to make a timely
request.
(p) The hearing officer,
in deciding whether or not the offender is guilty, shall consider only the
relevant testimony and report. The accused offender's correctional and
supervision record shall not be considered in determining guilt or innocence.
The decision in the hearing shall be based solely on evidence presented as part
of the hearing.
(q) Confrontation
and cross-examination may be denied by the hearing officer if deemed necessary
in any case except class I cases. In class I cases, confrontation and
cross-examination may be limited or denied if necessary to protect the safety
of an accuser, informant, or witness or if necessary to maintain facility
safety, security, and control. Unless there is a security risk endangering any
person, the explanation shall be in the record. If there is such a security
risk, a written explanation of the reason shall be sent to the superintendent
with a copy to the commissioner for confidential review.
(r) After the conclusion of the presentation
of evidence regarding guilt or innocence or disposition, if the hearing officer
needs the charging officer, the accused offender, or both present to provide
further information to clarify facts, both parties shall be present to hear
what the other is saying unless exempt under subsection (m) or (q) in this
regulation.
This regulation shall be effective on and after April 8, 2005.
