Kan. Admin. Regs. § 44-13-403 - Conducting the disciplinary hearing
(a) The
disciplinary hearing shall consist of the following procedures:
(1) The hearing officer shall initially
inform the inmate of the charges and take the inmate's plea.
(2) Secondly, the hearing officer shall
determine guilt or innocence.
(3)
Finally, if guilt has been established, the hearing officer shall make a
disposition, including the determination and imposition of sentence.
(b) Initially, the hearing officer
shall read the disciplinary report to the inmate, including the date, nature of
the offense, the reporting officer's name, and a synopsis of the observation.
The officer shall ensure that the inmate understands the charges and that a
copy of the disciplinary report was received by the inmate. The officer shall
also explain the possible penalties. If the hearing officer finds that the
inmate is incapable of self-representation, the hearing officer shall continue
the hearing as provided in K.A.R. 44-13-402(b)(1), until the inmate regains the
ability for self-representation. For purposes of this subsection, "incapable of
self-representation" shall mean that the inmate, due to physical or mental
disability, whether temporary or permanent, lacks the present ability to assist
in the inmate's representation in the case. This term shall not include mere
illiteracy.
(c) A staff assistant
shall be permitted to be with the inmate at all stages of the disciplinary
hearing only as provided in K.A.R. 44-13-408. The hearing officer shall ensure
that the inmate has staff assistance when required by K.A.R. 44-13-408.
(d) If the inmate is disruptive or
refuses to be present, the hearing may proceed in absentia, and the record
shall indicate the reason or reasons for the inmate's absence. A staff
assistant shall then be assigned and may ask questions of witnesses, present
the argument, or otherwise aid the defendant inmate, at the discretion of the
staff assistant and subject to rulings of the hearing officer as otherwise
provided in this regulation.
(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 inmate of the
inmate's rights to proceed to a determination of guilt or innocence, and if
necessary, the application of penalties, and to receive staff assistance in
certain cases, according to K.A.R. 44-13-408, and of other procedural due
process rights.
(f) The hearing
officer shall then ask the inmate 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 inmate. If
the inmate 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 inmate pleads guilty or no contest, the inmate 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
inmate pleads guilty or no contest, the inmate shall not be allowed to
introduce evidence regarding the inmate'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 shall be dismissed, the officer may dismiss the charge on the officer's
own motion or on motion of either party. The hearing officer shall give a brief
explanation on the record and provide a copy of the explanation to the
reporting officer.
(i) Only the
relevant facts shall be employed in any determination of guilt or innocence. In
the penalty phase, the inmate'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 inmate in accordance
with these regulations. If the accused inmate is furnished with staff
assistance according to K.A.R. 44-13-408, 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 inmate, except as
otherwise provided by these regulations.
(l)
(1) The
disciplinary process shall, to the extent possible, discover the truth
regarding charges against the inmate. For this purpose, the hearing officer
shall be authorized to call and to interrogate any witness, and each inmate,
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 or cross-examination but shall not act as prosecutor on
behalf of the facility or charging officer against the accused inmate, or on
behalf of the inmate. Testimony and evidence shall not be received by the
hearing officer or introduced outside the presence of the accused inmate,
except that the accused inmate shall not be present when the hearing officer
reviews any facility security videotape evidence. An inmate shall not be
required to be present at the disciplinary hearing as provided in subsections
(d), (e), and (m) and K.A.R. 44-13-402(b)(5), and as otherwise provided in
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 inmate will subject
that inmate 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 inmate, and the witness may be sequestered; or
(B) receive testimony from an investigator
who interviewed an inmate informant and relied on the confidential information
provided.
(2) The
testimony of the inmate witness given under oath shall be examined and tested
by the hearing officer. The hearing officer shall closely question the
testifying inmate 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 warden and secretary of
corrections.
(3) If the informant
inmate does not testify, the hearing officer may establish the reliability of
the information provided to the testifying investigators 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 inmate who gave the confidential testimony or
provided confidential information to the testifying investigator. The identity
of any confidential witness or of any inmate informant shall not be disclosed
to the accused, to any other inmate, or to any staff not required to complete
the process. The staff assistant shall be permitted to be present when the
board receives testimony from the confidential witness, or investigator, and
the staff assistant may ask questions. The inmate's staff assistant shall not
disclose the identity of the confidential witness or inmate informant to the
accused, to any other inmate, or to any staff not required to complete the
hearing process. The testimony shall be recorded for confidential review by the
warden and, on appeal, by the secretary of corrections.
(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 something 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. 44-13-405a.
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 inmate
exist and the testimony would most likely affect the outcome of the hearing.
The hearing officer shall inform the inmate of any witness deemed waived by the
failure to make a timely request.
(p) The hearing officer, in deciding whether
or not the inmate is guilty, shall consider only the relevant testimony and
report. The accused inmate'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 some 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 warden with a copy to the secretary for
confidential review. However, an inmate held in administrative or disciplinary
segregation whose hearing is conducted by telephone, as provided by K.A.R.
44-13-404(e), shall not be permitted to confront any witnesses against the
inmate, including the reporting officer.
(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 inmate, 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 (p) above.
Notes
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