FORMAL RULES OF EVIDENCE
What kind of evidence may and may not be used against a defendant in a college or university judicial proceed- ing? Due process does not force colleges and universities to apply the same rules governing the admissibility of evidence at criminal trials, although many universities in fact employ a few of those rules. In the criminal courts, witnesses may not testify to things that they don’t know personally, but about which others have told them. That is called “hearsay,” and it is barred from criminal proceedings. By law, however, university disciplinary tribunals may indeed admit hearsay from witnesses as evidence, and most do. In the criminal courts, only sworn testimony is admissible from witnesses. In univer- sity tribunals, witnesses do not need to be put under oath. Indeed, at college or university trials, virtually any- thing may count as evidence. The only requirement is that the rules used allow for basic fairness. If the lack of formal rules of evidence denies you basic fairness, how- ever, then you may have a due process claim.
CROSS-EXAMINATION
On similar grounds of rules essential to basic fairness, you may have the right to cross-examine the witnesses against you at a college or university disciplinary hear-
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ing, if such cross-examination is necessary to draw out the truth about the matter at issue.
The Sixth Amendment guarantees the right to cross- examine witnesses in criminal proceedings. It also gives criminal defendants a right to confront their accusers— that is, to look at them eye to eye when they testify. The Sixth Amendment, however, even as extended by the Fourteenth Amendment, only applies to federal and state criminal proceedings. Whether a right to cross-examina- tion would apply in public college disciplinary hearings would depend upon whether it was essential to the “fair” hearing guaranteed by the due process clause.
Cases where cross-examination is most clearly required are those built solely around factual claims and charges made orally by a witness. For example, in Dono- hue v. Baker (1997), previously discussed, a rape charge against a male student hinged on whether a female had consented to sexual intercourse that both agreed had taken place. The U.S. District Court for the Northern District of New York held that the accused student had the right to cross-examine the alleged victim, because the only evidence that the act had not been consensual was her testimony, and the determination of guilt or innocence therefore rested on her credibility. This case is vitally important, because similar circumstances arise with some frequency. If you are accused of sexual assault, you can use Donohue, even if it does not apply directly in your jurisdiction, to argue that basic fairness gives you
the right to cross-examine the complainant. Courts in one jurisdiction are very often persuaded by the reason- ing of courts in another jurisdiction.
By contrast, however, the U.S. Court of Appeals for the First Circuit, in Gorman v. University of Rhode Island
(1988), held that you do not have an obvious right to cross-examine witnesses about the more general subject of their potential biases. However, in a case where the defense specifically rests on the bias of witnesses, cross- examination on this topic may well be permitted.
The specific nature and scope of cross-examination required by due process also depend on the circum- stances. In Donohue, the court found that it was permis- sible for the tribunal to allow the accused to question witnesses merely by posing his questions to the panel, which then directed them to the witness. Other courts have approved circumstances in which witnesses could refuse to answer a question in cross-examination. The logic of court decisions on this question is that limits on cross-examination that might be appropriate in one cir- cumstance might be inappropriate in others, if it could be shown that such limits denied fundamental fairness to the accused.
Even though the law only requires cross-examination in a limited set of circumstances, many schools allow for cross-examination at disciplinary hearings in a far greater range of circumstances. Once again, if your school promises the right of cross-examination in a
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given situation, it may well be legally obliged to live up to that promise.
Due process, as indicated by Donohue, does not gener- ally require face-to-face confrontation in campus disci- plinary proceedings. However, if a compelling case could be made that such actual confrontation is necessary to a fair judgment (for example, when someone’s defense is based on mistaken identity), it might well be required by due process. As in the case of so many other protections, the extent of the “process that is due” depends largely upon the facts and circumstances of the situation. If you want to argue for more process, you need to demonstrate why such procedural rights are made necessary by the facts and circumstances of your particular case.
CALLING EXCULPATORY WITNESSES
“Exculpatory” evidence is evidence that exculpates you of guilt—that is, that proves or serves to prove your innocence. It is the opposite of “inculpatory,” or incrim- inating, evidence. In Goss, the United States Supreme Court did not require that students be permitted to call exculpatory witnesses in cases involving suspension of ten days or less. However, courts have long recognized that students have a right to call witnesses in cases where more serious punishment is at stake. This principle, as applied to universities, originates from the previously discussed Dixon v. Alabama State Board of Education
(1961), where the United States Court of Appeals for the Fifth Circuit ordered that an accused student, when expulsion was at issue, must be allowed to “produce either oral testimony or written affidavits of witnesses in his behalf.” Although few courts have considered cases where this means of defending oneself was denied, it is fairly clear that in a serious case, due process would be violated if the right to call exculpatory witnesses were not granted.
The right to call witnesses, however, does not appear to extend to a right to compel their attendance at the hearing, although to our knowledge this point has not arisen in a case that dependedon the attendance of such a witness. If you want the campus tribunal to make extra efforts to force or convince a reluctant witness to appear to testify, you should convince the panelists that the wit- ness is essential rather than merely peripheral to your defense. Again, this differs significantly from criminal trials, where you have a right to compel witnesses to tes- tify in person if their testimony is at all relevant.
THE RIGHT TO BE PRESENT AT A FORMAL HEARING
Under Goss, you have the right to hear for yourself an “an explanation of the evidence” against you before you present your defense. As a result, if your public university uses a formal hearing to decide your case, you have the right, even where potential punishments are minimal, to
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be present at all of the hearing, in order to hear the evi- dence being used against you. This protection, unlike many of the others we have discussed, applies so broadly because while allowing you to be present creates only a minor burden to the university, it can have a major impact on the fairness of the proceedings.
Courts have overturned convictions in cases where the right to be present at the entirety of a formal hearing was denied. For example, in Texas Medical School v. Than
(1995), the Supreme Court of Texas overturned the ex- pulsion of a student from a public medical school because the student was not allowed to accompany the hearing officer and a school representative when they visited the site of the alleged offense. Likewise, another court vacated a conviction in a case where new informa- tion was given to the hearing board after the conclusion of the hearing and outside of the presence of the accused. This has been an area where obvious doctrines of fair- ness have generally prevailed.