Kan. Admin. Regs. § 123-13-404
Current through Register Vol. 43, No. 49, December 5, 2024
Section 123-13-404 - Presence of offender and presence of charging officer at disciplinary hearings; officer statements in lieu of testimony(a) The offender shall be present at all stages of the disciplinary hearing and disposition, except as otherwise provided by these regulations or by law. (b) In class I cases, the charging officer shall be present for direct examination and for confrontation and cross-examination, unless either of the following conditions is met: (1) The charging officer is excused by the hearing officer. The hearing officer may excuse the charging officer only if the hearing officer, after consulting with the superintendent, determines that facility safety or correctional goals would be jeopardized. "Facility safety or correctional goals" shall not include considerations of mere convenience. If the officer is not present, the officer's report and statement shall be made to the hearing officer in writing under oath. Copies of the report shall be provided to the offender, and the report shall be read aloud at the hearing unless confidentiality is required to protect an offender accuser, informant, or witness. (2) The offender has been transferred to another facility. If an offender has been transferred to another facility after a disciplinary report was written in a class I case, the testimony of the charging officer and other witnesses pertaining to that report may be taken by telephone at the discretion of the hearing officer. Except as provided in K.A.R. 123-13-403(m) and (q), all testimony taken by telephone shall be taken in a manner that can be heard by all those present at the hearing and shall be subject to the procedures applicable to witnesses personally present at a hearing. (c)(1) In class II and III cases, the charging officer's attendance shall not be required unless deemed necessary by the hearing officer. If the hearing officer excuses the attendance of the charging officer, the charging officer's sworn, written report and statement, if any, shall be submitted to the hearing officer. The charging officer's report and statement, if any, shall be read aloud at the hearing, and a copy shall be given to the offender unless confidentiality is required to protect an offender-accuser, informant, or witness according to K.A.R. 123-13-403(m). If such confidentiality is required but it is possible to protect the offender-accuser, informant, or witness by redacting certain portions of the report and statement, then those portions shall be redacted and the offender shall be provided with a copy. The hearing officer may contact the officer, by telephone or radio, to ask questions or clarify the facts while the hearing is being conducted or while the matter is being considered for decision. (2) In all class II and III cases, if the charging officer requests, the hearing officer shall allow the charging officer to be present. In such a case, the officer shall be present throughout and shall be subject to direct examination, confrontation, and cross-examination unless restricted by the hearing officer according to these regulations. (d)(1) The officer's statement under oath shall consist of the officer's rendition of all the facts of the case resulting from the charging officer's complete investigation. To the best of the officer's ability, the statement shall include all relevant and material facts that might be used to support both the prosecution's case against the offender and the offender's defense. If the officer is uncertain of a fact, the officer shall state that with respect to the fact. The charging officer may either adopt or defer under oath to the report, if any, from any official, impartial investigation of the matter conducted by another person, or the charging officer may submit the charging officer's own statement in addition to the other person's investigative report. (2) Confidential offender testimony may be deleted from the statement in lieu of testimony and reported separately. The hearing officer shall receive any confidential offender testimony in accordance with K.A.R. 123-13-403. This regulation shall be effective on and after April 8, 2005.
Kan. Admin. Regs. § 123-13-404
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.