dissenting: I respectfully disagree with my colleagues, who conclude that Swafford was not denied due process in his prison disciplinary proceeding. I believe that fundamental due process requires that a prison security video of the incident giving rise to the disciplinary report should generally be available to the inmate — subject only to reasonable security concerns, and its unavailability to Swafford here has revealed that the applicable regulations are inadequate and do not comport with due process principles that our appellate courts have consistently required in such proceedings. Moreover, the majority’s emphasis on the sufficiency of evidence is irrelevant to Swafford’s due process challenge; we have never held that sufficient evidence excuses a challenge to the due process afforded an accused.
The procedural facts are as set forth by the majority. Critical is that Swafford was permitted to file a request for the video, which sought:
“Video or digital description of the alleged violation of law or rule, from the medium visiting room, as is described in disciplinary report #258. Requesting to be allowed to personally review the video during the hearing, or have the hearing officer review the video outside of my presence during the hearing and be provided a summary of the content of the video, so that questions and follow-up questions may be asked.”
*333Swafford never received the video or a summary thereof, and the matter proceeded to hearing despite Swafford’s request for another continuance. The hearing officer found Swafford guilty of both charges and imposed a $20 fine. No explanation is provided in the record for denying production of this evidence to Swafford. Although the majority references a “written decision” of the hearing officer, the only record of the hearing officer’s decision in the record on appeal is a cryptic transcription or summary of the hearing that is arguably ambiguous on the question of the hearing officer’s review of the videotape. Although it reports a basis in tire “facts provided by video evidence,” it cannot be determined whether this means the officer actually reviewed the video or merely that the accusing officer testified to what the video depicted.
Swafford appealed the decision, and the secretary vacated the charge of misconduct but affirmed the conviction of lewd acts. Swafford then filed his 60-1501 petition. After an evidentiary hearing, the district court dismissed Swafford’s petition. With regard to Swafford’s due process issue, the court’s memorandum relied in part on “the general rule that prison officials are given flexibility in executing internal prison policies and procedures,” citing Anderson v. McKune, 23 Kan. App. 2d 803, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997).
On appeal Swafford argues “[t]he combination of the failure to allow him a continuance, plus his [in] ability to view the video evidence against him, prevented Mr. Swafford from being able to prepare an adequate defense against the disciplinary charges against him.”
Our appellate courts have often addressed the extent of due process rights due an inmate in prison disciplinary proceedings, but we have not often addressed the inmate’s right to request, view, or present video evidence. As recognized by the majority, the United States Supreme Court has recognized that there must be mutual accommodation between institutional needs and objectives and the prisoner’s rights and that the full panoply of rights due a defendant in criminal proceedings does not apply. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
*334As noted by the majority, our' appellate courts have recognized the inmate’s due process right to call witnesses and, more importantly for this case, present documentary evidence: Shepherd v. Davies, 14 Kan. App. 2d 333, 789 P.2d 1190 (1990); the Shepherd panel also clearly held that when the inmate is denied these rights, he or she should be provided the reasonable basis for such a denial. The panel stated:
“No rationale was ever provided by prison officials for their decision to deny Shepherd his requested witness. Although counsel for respondents has advanced some possible reasons for the prison officials’ decision, such post-hoc hypothesizing does not allow this court to determine whether the prison officials’ decision was actually based on these reasons or was purely arbitraiy. Even if the decision was based on factors permitted under K.S.A. 44-13-405a(a) and (e), these factors may not meet constitutional due process requirements.” 14 Kan. App. 2d at 337-38.
See Washington v. Roberts, 37 Kan. App. 2d 237, Syl. ¶ 3, 152 P.3d 660 (2007).
The Tenth Circuit has held that a penal institution’s refusal to produce and review a potentially exculpatory videotape violates the inmate’s due process right to present documentary evidence in his or her own defense. Howard v. United States Bureau of Prisons, 487 F.3d 808 (10th Cir. 2007). The court noted that a videotape of the incident giving rise to the disciplinary charges would “have constituted significant, perhaps conclusive, evidence that might exonerate [the inmate] of the acts charged against him.” 487 F.3d at 815. Notably, in Howard, as in this case before us, the institution never asserted, nor did the record support, a conclusion that producing the videotape would be unduly hazardous to institutional safety. 487 F.3d at 814.
Other federal circuits have held that the penal institution must disclose all exculpatory evidence in prison disciplinary proceedings. See, e.g., Chavis v. Rowe, 643 F.2d 1281, 1285-86 (7th Cir. 1981). The due process right recognized by these courts is not merely that such evidence be considered but that it be produced to the inmate to enable him or her to construct a defense. See Saleh v. Davis, No. 09-CV-02607, 2011 WL 334321, at *2 (D. Colo. 2011) (refusal to produce the video of an incident after it is requested by a pris*335oner prior to a disciplinary hearing can violate prisoner’s due process rights). Granted, the federal circuits are not in lockstep on these issues. See, e.g., Howard v. Werlinger, 403 Fed. Appx. 776, 2010 WL 5027169, at *1 (3d Cir. 2010) (unpublished opinion).
With these general principles in mind, I believe we must carefully examine KDOC regulations that may be applicable to the issue before us to determine whether they comport with our appellate court’s explication of applicable due process. Those regulations clearly contemplate that the inmate may call witnesses, although such a request may be denied if the need for any witness is outweighed by the needs of the facility or would be cumulative or irrelevant. See K.A.R. 44-13-405a and 44-13-403(n)(l)-(4). When a request to call a witness is denied, a written explanation shall be made on the record unless it would endanger any person. K.A.R. 44-13-405a(e).
There is no specific regulation on the inmate’s right to subpoena or utilize documentary evidence, except video evidence is contemplated by K.A.R. 44-13-403(l)(l), which provides:
"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.” (Emphasis added).
The complete dearth of regulations addressing documentary evidence, and the absolute prohibition on inmate review of videotape evidence, cannot be squared with our caselaw generally recognizing that an inmate’s limited due process rights include the right to present documentary evidence'. Moreover, LCF’s effective denial of Swafford’s request to see the video, absent any explanations of a reason for the denial, would not pass constitutional scrutiny of the Tenth Circuit or other federal circuits enforcing a Brady right *336to receive all exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
When the correctional institution possesses videotape of a purported disciplinary violation by an inmate, that videotape is not only relevant to the inmate’s guilt or innocence, it may be the best evidence thereof. Consistent with the general rule that due process requires that the inmate have the ability to present documentary evidence in his or her defense, I would conclude that the hearing officer in such a proceeding may not arbitrarily deny production and consideration of any such videotape. Such documentary or electronic evidence should be made available to the inmate and admitted in the proceeding under the same standards that are reflected in the current regulations applicable to witnesses. That is to say, video evidence that purportedly captures the incident giving rise to the disciplinary violation should be made available on the request of the inmate and should be denied only on bases similar to those applicable to witnesses. Moreover, any such denial must be accompanied by a written explanation of the reason for denial. And, finally, the current regulation disallowing the viewing of the video evidence by the inmate is contrary to due process standards and must be revised in a manner not inconsistent with this opinion.
I am also compelled to note that my views are not dependent upon whether the hearing officer actually reviewed and considered the video. Even if he did, the refusal to produce it to Swafford— absent a reasonable basis for the refusal — denies fundamental due process rights. The video here was even more critical because it was also the sole basis for the allegations of the accusing officer; that is, neither of the witnesses personally observed tire alleged misconduct — they simply observed the same security video never produced to Swafford. Denying that video to Swafford — even if it was considered by the hearing officer — cannot be considered due process. That video here served as Swafford’s accuser. And Swafford’s right to see it — at a minimum — was a key vindication was of his Sixth Amendment right to confront his accuser. To say this did not violate due process is to license the use of secret evidence against the accused. “Oh, don’t worry, we will take a look at it in *337determining your guilt, but you don’t need to see it!” If this is the rule, the entire disciplinary process is a sham.
In summary, I would hold that Swafford was denied adequate due process when LCF failed to respond to his request for production or viewing of the videotape evidence, when that evidence was not made available to him and he was not provided a written explanation of good cause for the denial, and when he was convicted in a proceeding that did not adequately enable his presentation of a defense. His conviction should be reversed and the matter remanded for a disciplinary hearing. Additionally, I would urge that the applicable regulations be revised consistent with this dissent, including new regulations for production and presentations of documentary evidence — including video evidence — that parallel the existing regulations for inmate witnesses.