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Hyatt v. Commonwealth7/7/2000
ntee the right of a defendant to call witnesses on his behalf. While due process rights may be limited in certain proceedings, we believe that Hyatt was entitled to notice of the report's contents in order to be able to present experts to testify during the risk assessment hearing.
The circuit court should have given Hyatt an opportunity to call expert witnesses to refute Dr. Wagner's risk assessment. By failing to give Hyatt this opportunity, the court denied Hyatt due process of law under the Fourteenth Amendment to the U.S. Constitution and Section 11 of the Kentucky Constitution.
3. FAILURE OF VICTIM TO TESTIFY
Finally, Hyatt argues that the victim should have been forced to testify at the hearing. He alleges that the victim's failure to testify violated his right to confront witnesses under U.S. Constitution and Kentucky Constitution. We disagree.
When an individual has been indicted for committing a crime, he has a constitutional right to confront his or her accusers. This right of confrontation has generally been held only to apply to trials.
This case is distinguishable because it involves a risk assessment hearing pursuant to KRS 17.570, not a criminal trial. Hyatt waived his constitutional right to confront the victim by pleading guilty. The subsequent hearing is to determine the potential for recidivism of the sex offender; the sex offender is not being charged with a new crime. Rather, the statutes subject the sex offender to registration for a crime to which he has previously pled guilty, or been found guilty by a judge or jury. As we have concluded, the sex offender classification process serves a regulatory purpose and does not impose additional punishment upon an offender. In considering Hyatt's claim for violation of his procedural due process rights, flexible due process entitled him to a hearing to challenge the veracity of the sex offender risk assessment report and to produce his own expert witnesses. His procedural due process rights do not extend to a confrontation with the victim. Thus, we conclude that a sex offender does not have a right to confront the victim during the risk assessment hearing.
VI. CONCLUSION
We affirm that portion of the Anderson Circuit Court order upholding the constitutionality of KRS 17.500-.991. For the reasons stated, we reverse the order insofar as it classifies Hyatt as a sex offender and remand this case for further proceedings consistent with this opinion.
EMBERTON, Judge, CONCURS.
DYCHE, Judge, CONCURS IN RESULT.
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