Saturday, August 1, 2020
In my last post, I described how the U.S. Department of Education has issued new regulations that will require colleges and universities across America to change how they investigate and resolve Title IX complaints. In this post, I will give some information about the new rules of evidence that higher education institutions must use at their hearings. All of the items in this post are presented in more detail in my article, "Hiring and Training Competent Title IX Hearing Officers," which is forthcoming in the Missouri Law Review and is available now online as a pre-publication draft. If you either (1) have responsibility for university hearings or (2) care about evidence law, then several features of the revised regulations should interest you:
First, the new regulations require that institutions ensure that their hearing officers are "trained on issues of relevance, including how to apply ... rape shield provisions" and legal privileges. (Note that institutions commonly use lay faculty and staff, with little-to-no legal training, to conduct hearings.)
Second, institutions of higher education "must permit each party's advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility." (The Department has swept away campus rules preventing the "advisor," who may or may not be a lawyer, from speaking at hearings. Gone are the days in which advisors whispered advice to their clients but otherwise could not participate.)
Third, "cross-examination ... must be conducted directly, orally, and in real time." (The Department has swept away campus rules requiring parties to submit proposed questions in writing to hearing officers, who then decide how and whether to ask the questions of witnesses.)
Fourth, the hearing officer must rule on questions of relevance in real time, deciding whether a witness should answer.
Fifth, the hearing officer must apply a "rape shield," the details of which are described in the revised regulations. The required shield has much in common with Rule 412 of the Federal Rules of Evidence, including having exceptions similar to those at FRE 412(b)(1), which apply in federal criminal cases. Accordingly, hearing officers must decide (1) whether evidence presented is the kind of evidence covered by the rape shield at all and (2) if so, whether an exception applies that allows admission.
Sixth, the hearing officer must exclude evidence protected by a legal privilege, unless the holder of the privilege waives. This includes state law privileges (e.g., doctor-patient, attorney-client) and the Fifth Amendment privilege against self-incrimination.
Seventh, if a student invokes his Fifth Amendment right, a university decision-maker cannot hold that against him when deciding the outcome of the case. In other words, participants in university hearings will be treated like criminal defendants (who in theory cannot be punished for their failure to testify), not like civil parties (who indeed face adverse inferences if they invoke).
Eighth, unless a piece (or category) of evidence is explicitly excluded by the revised regulations (such as evidence covered by the rape shield, or privileged material), relevant evidence must be admitted, even if the same evidence might be excluded in a real court. The Department gave examples of relevant evidence that cannot be excluded at college hearings (despite often being inadmissible in court), such as evidence that "concerns a party's character or prior bad acts," hearsay, and "party statements made during mediation discussions." Nor can evidence be excluded because it "is cumulative, duplicative, or unduly prejudicial." All objections about this kind of evidence go to weight, not admissibility.
For more detail, please see my forthcoming article. Please speak up in the comments if you have any thoughts on the new rules.
- Ben Trachtenberg