The Hearing Officer or Panel Chair has the discretion to determine the relevance of any witness or documentary evidence and may exclude information that is irrelevant, immaterial, cumulative, or more prejudicial than informative.
The relevancy and admissibility of any evidence offered at the hearing shall be determined by the Hearing Officer, whose ruling shall be final. In equity proceedings, the Chair shall present the question to the Hearing Panel at the request of a member of the Hearing Panel, in which event, the ruling of the Hearing Panel by majority vote shall be final.
Examples of evidence that should not be considered:
- The formal rules of evidence do not apply; but the evidence must be relevant.
- Questions and evidence about the Complainant’s pre-disposition or prior sexual behavior are not relevant, unless offered to prove that someone other than the Respondent committed the alleged conduct.
- Evidence concerning specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent is not relevant unless it is offered to prove consent.
- Character evidence is of limited utility and should not be admitted unless relevant.
- Incidents or behaviors of a party not directly related to the alleged conduct should not be considered unless it shows a pattern of related misconduct that is deemed relevant.
- Records of a party made or maintained by a physician or similar professional in connection with the provision of treatment to a party may not be used without the party’s express consent.
- Information protected under a legally recognized privilege shall not be allowed, relied upon or otherwise used unless the person holding the privilege has waived that privilege.
Questioning of Parties and Witnesses and Cross-examination
Questioning of Parties and Witnesses at a Hearing Under 600.030
- A Party is subject to direct cross-examination by the other Party’s Advisor; the Parties may not directly question each other.
- A Party’s Advisor will be permitted to ask the other Party and any witnesses relevant questions and follow-up questions, including those challenging credibility.
- Before a Party or witness answers a question, the Hearing Officer must determine whether the question is relevant.
- If a question is excluded as not relevant, the Hearing Officer must explain the decision to exclude that question.
- Where the Hearing Officer permits a question to be answered, there is a presumption that the Hearing Officer found the question to be relevant.
- The Parties’ Advisors may object to questions on limited grounds as set forth in the Rules of Decorum.
Cross-examination and Questioning of Parties and Witnesses Under 600.030
- No Party or witness can be forced to participate in the 600.030 process, including testifying at a hearing.
- If a Party or witness fails to submit to cross-examination at a hearing, the Hearing Panel shall not rely on any statement of that Party or witness in reaching a determination regarding responsibility.
- The Hearing Panel shall not draw any inference about the determination regarding responsibility based solely on a Party’s or witness’s failure to submit to cross-examination.
Questioning of a Party under 600.040 or 600.050 (Equity)
Under the 600.040 hearing process:
- The Parties will be provided the opportunity to present facts and arguments in full and question all present witnesses during the hearing.
- The Parties may submit questions for each other to the Hearing Panel Chair, who will determine if the questions are relevant and appropriate, and if so, will ask the questions on behalf of the submitting Party.
- If both Parties request the opportunity, direct questioning between the Parties will be permitted.
- Advisors are present solely to advise their Party, and may not participate directly in the hearing.
- The Chair of the Hearing Panel, in consultation with the Parties and investigators, may decide in advance of the hearing that certain witnesses do not need to be physically present if their testimony can be adequately summarized by the Investigator(s) in the investigative report or during the hearing. All Parties will have ample opportunity to present facts and arguments in full and question all present witnesses during the hearing, though formal cross-examination is not used between the Parties.
- Under the 600.050 process, there is no hearing; Parties may submit questions for the other party to be asked by the decision-makers.
Presumption of Not Responsible & Preponderance of Evidence
The Respondent is presumed not responsible for a policy violation. A determination regarding responsibility is made at the conclusion of the Title IX/ Equity process; the Respondent remains not responsible for a violation until they have been proven responsible.
One is proven responsible through the Standard of Proof: the level of certainty and the degree of evidence necessary to establish a violation of policy. Common standards of proof include:
- Beyond a Reasonable Doubt: firmly convinced of the defendant's guilt.
- Clear and Convincing: substantially more likely than not.
- Preponderance of the Evidence: more likely than not; 50%+. This is the standard of proof in the Title IX and Equity Resolution processes.