Pre-hearing Refresher Training

Purpose

• Briefly review select elements of previous TIX trainings

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• Opportunity to ask procedural and logistic questions regarding process

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• Meet as a Board to select the Chair

General Principles that Govern Process

• Equitable treatment of parties
• Approach the allegations with neutrality
• Provide an equal opportunity to present evidence, witnesses, and their versions of the story.
• No stereotypes based on a party’s status
• The Respondent is presumed not responsible for the alleged conduct
• Decision makers must be impartial, free of conflict, bias, and prejudgment

Preponderance of the Evidence

• Preponderance of the evidence is met if the decision-maker believes the evidence shows the person charged is more likely than not—more than 50% likely to be—responsible.

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• It is the quality of the evidence that must be weighed.
• Quality may or may not be identical with quantity or the greater number of witnesses.

Order of Hearing

• Introductory statement by the Board chair
• Respondent’s indication of responsibility
• Opening remarks by complainant and respondent
• Witness testimony and questions by the Board and parties’ advisors
• Complainant questioned by the Board and the respondent’s advisor
• Respondent questioned by the Board and the complainant’s advisor
• Closing remarks by complainant and respondent
• Hearing concluded by the Board chair
• Board Deliberations

Questioning Procedures

• The Board asks questions first. Board questions do not require a relevancy determination (still must be relevant questions).
• Cross-examination must be conducted directly, orally, and in real time by the party’s advisor and never by a party personally.
• The Board Chair makes a determination of relevance for every question posed by an Advisor
• Parties/witnesses may not answer until a determination of relevance has been made. Board Chair resolves objections and explains any decision to exclude a question as not-relevant.
• Parties, advisors, and all others present at the hearing, are held to the rules of decorum at all times.

Asking good questions

• Read all the information related to the case prior to the hearing
• Review language of alleged violation
• Prepare questions in advance of the hearing
• What do you need to know to determine if there has been a violation? Are there gaps or confusion in the testimony?
• Ask non-leading questions; remain fact-based.
• Frame questions in a neutral, non-blaming manner whenever possible.
• Remember: Your decisions will be based on evidence, not assumptions

Refusing Cross-examination

• If a party or witness does not submit to cross-examination at the hearing, the Board must not rely on any statement of that party or witness in reaching a determination regarding responsibility.
• However, the Board cannot draw an inference regarding responsibility based solely on a party’s or witness’s absence from the hearing or refusal to answer cross-examination or other questions.

What is Relevant?

“The final regulations do not define relevance, and the ordinary meaning of the word should be understood and applied.”

• Relevance requires that the evidence or testimony directly relate to the issues disputed or discussed.
• Evidence is relevant if: (1) it has a tendency to make a fact more or less probable than it would be without the evidence; and (2) the fact is of consequence in determining the action.
• Inculpatory and exculpatory evidence is considered relevant.
• Inculpatory evidence shows, or tends to show, a person's involvement in an act (establishes responsibility)
• Exculpatory evidence shows, or tends to show a person’s lack of involvement (established non-responsibility)

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Exceptions to Relevance

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Must consider all relevant evidence EXCEPT:

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1. Information protected by a legal privilege
2. Party’s treatment records (absent voluntary written waiver by the party)
3. Complainant’s sexual behavior (with two narrow exceptions)

When is sexual behavior relevant?

Cross-examination must EXCLUDE evidence of the Complainant’s “sexual behavior or predisposition” UNLESS

1. its use is to prove that someone other than the Respondent committed the conduct, OR
2. it concerns specific incidents of the complainant's sexual behavior with respect to the respondent and is offered to prove consent

These protections do not apply to Respondents

• “evidence of a pattern of inappropriate behavior by an alleged harasser must be judged for relevance as any other evidence must be.”

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Determining Relevance:�

1. Consider the evidence/question being offered.
2. Consider the allegations of the Title IX complaint/alleged violation.
3. Consider whether the evidence being offered or question raised has the potential to prove or disprove an incident under investigation.

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Determination of relevance requires you to apply your training, logic, experience, education, and expertise to your decision-making process.

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Weighing Evidence & Effective Deliberations

The Regs require the decision-maker to objectively evaluate only relevant evidence during the hearing and when reaching the determination regarding responsibility.

• Inherent plausibility: Is the testimony believable on its face? Does it make sense?
• Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
• Motive to falsify: Did the person have a reason to lie?

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No single factor is determinative as to credibility. “A decision-maker may judge credibility based on, for example, factors of plausibility and consistency in party and witness statements. Specialized legal training is not a prerequisite for evaluating credibility, as evidenced by the fact that many criminal and civil court trials rely on jurors (for whom no legal training is required) to determine the facts of the case including the credibility of witnesses.” (pg. 1238)

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What goes on the scale?

• Relevant evidence received from credible sources

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What does not go on the scale?

• A claim of ignorance about policies
• The student’s motivation or intent
• A student choosing not to answer questions in a hearing
• Assumptions that are based on information that was not presented or available
• Your “gut feeling”

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The finding

Purpose of sanctioning

Maintain standards and expectations

Education/

Modification of future behavior

Connect student to something positive

Community expectations

Identify risky behavior

Protect the community

Outcome Letter: Required determination elements

Required determination elements