Kan. Admin. Regs. § 123-13-403

Current through Register Vol. 43, No. 49, December 5, 2024

Section 123-13-403 - Conducting the disciplinary hearing

(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.

Kan. Admin. Regs. § 123-13-403

Authorized by and implementing K.S.A. 38-16,130, K.S.A. 2004 Supp. 75-7024, and K.S.A. 76-3203; effective April 8, 2005.