1 00:00:00,000 --> 00:00:03,629 hi my name is Aaron Lacey I'm the chair 2 00:00:02,399 --> 00:00:05,548 of the higher education practice 3 00:00:03,629 --> 00:00:07,500 Thompson Coburn LLP and you are 4 00:00:05,549 --> 00:00:09,960 listening to title nine hearings which 5 00:00:07,500 --> 00:00:12,300 is one of the sessions that's part of 6 00:00:09,960 --> 00:00:13,110 the Thompson Coburn title nine training 7 00:00:12,300 --> 00:00:14,610 series 8 00:00:13,109 --> 00:00:16,829 Thompson Coburn if you don't know we're 9 00:00:14,609 --> 00:00:18,269 a law firm located are headquartered in 10 00:00:16,829 --> 00:00:20,549 the Midwest with offices around the 11 00:00:18,269 --> 00:00:22,559 country and we have a higher education 12 00:00:20,550 --> 00:00:26,010 practice which means we have a group of 13 00:00:22,559 --> 00:00:27,629 attorneys who spend either most of or 14 00:00:26,010 --> 00:00:29,340 all of their time working with colleges 15 00:00:27,629 --> 00:00:31,320 and universities on a wide range of 16 00:00:29,339 --> 00:00:33,329 matters including matters like title 17 00:00:31,320 --> 00:00:35,969 nine or title nine compliance I should 18 00:00:33,329 --> 00:00:38,009 say the purpose of this training series 19 00:00:35,969 --> 00:00:39,480 is to assist institutions of higher 20 00:00:38,009 --> 00:00:41,369 education with complying with the new 21 00:00:39,479 --> 00:00:43,679 title nine rule that becomes effective 22 00:00:41,369 --> 00:00:45,238 August 14 2020 if you listen to the 23 00:00:43,679 --> 00:00:46,969 first session we talked a lot more about 24 00:00:45,238 --> 00:00:49,229 that rule and sort of how it came about 25 00:00:46,969 --> 00:00:50,879 but one of the key features of the new 26 00:00:49,229 --> 00:00:53,339 rule is that you are if you're an 27 00:00:50,878 --> 00:00:56,820 institution of higher ed required to put 28 00:00:53,340 --> 00:00:58,590 into place a robust and complex and for 29 00:00:56,820 --> 00:01:00,570 many we expect sort of a challenging new 30 00:00:58,590 --> 00:01:02,670 process for managing formal complaints 31 00:01:00,570 --> 00:01:04,198 of title nine sexual harassment and that 32 00:01:02,670 --> 00:01:06,710 process is going to involve a lot of 33 00:01:04,198 --> 00:01:09,298 people advisors investigators 34 00:01:06,709 --> 00:01:11,158 adjudicators appeal officers among them 35 00:01:09,299 --> 00:01:13,590 and the new rule says you have to train 36 00:01:11,159 --> 00:01:15,509 those folks and any training materials 37 00:01:13,590 --> 00:01:18,210 you use you have to make available on 38 00:01:15,509 --> 00:01:20,489 your external website so we've developed 39 00:01:18,209 --> 00:01:22,829 this series very much as foundational 40 00:01:20,489 --> 00:01:24,209 training for those individuals it is our 41 00:01:22,829 --> 00:01:26,700 intent that institutions of higher 42 00:01:24,209 --> 00:01:28,859 education should feel free should feel 43 00:01:26,700 --> 00:01:31,379 free to use the training at their 44 00:01:28,859 --> 00:01:32,909 discretion and also to be very clear to 45 00:01:31,379 --> 00:01:35,459 put it on your external websites if you 46 00:01:32,909 --> 00:01:37,950 want to that's why we've done it right 47 00:01:35,459 --> 00:01:39,509 we'll just also add if you want any sort 48 00:01:37,950 --> 00:01:41,519 of supplemental training or custom 49 00:01:39,509 --> 00:01:43,259 training on your policies or other 50 00:01:41,519 --> 00:01:46,289 matters we are of course happy to do 51 00:01:43,259 --> 00:01:47,909 that as well I mentioned earlier so this 52 00:01:46,290 --> 00:01:49,829 is one of several sessions more 53 00:01:47,909 --> 00:01:52,079 specifically there are six that comprise 54 00:01:49,828 --> 00:01:53,938 the training series and again you are 55 00:01:52,078 --> 00:01:55,798 listening to hearings which we think is 56 00:01:53,938 --> 00:01:57,779 going to be one of the better attended 57 00:01:55,799 --> 00:01:59,759 of these sessions because the hearings 58 00:01:57,780 --> 00:02:01,890 process is right at the core of this new 59 00:01:59,759 --> 00:02:04,649 rule and it does involve some of the 60 00:02:01,890 --> 00:02:06,718 most complex and difficult concepts this 61 00:02:04,649 --> 00:02:08,640 is the syllabus for today's session so 62 00:02:06,718 --> 00:02:10,288 I'm gonna start out just briefly talking 63 00:02:08,639 --> 00:02:12,089 about the formal complaint framework as 64 00:02:10,288 --> 00:02:13,530 I've said in other sessions I like to 65 00:02:12,090 --> 00:02:13,830 try to sort of level set and help people 66 00:02:13,530 --> 00:02:16,770 get 67 00:02:13,830 --> 00:02:17,820 they're mine right as they say so you're 68 00:02:16,770 --> 00:02:20,520 ready for the rest of the information 69 00:02:17,819 --> 00:02:22,019 and had the context for it when the rest 70 00:02:20,520 --> 00:02:23,460 of the session does start and you start 71 00:02:22,020 --> 00:02:25,260 marching through key concepts and these 72 00:02:23,460 --> 00:02:26,849 other matters there will be these two 73 00:02:25,259 --> 00:02:29,039 gentlemen who do it so we have two 74 00:02:26,849 --> 00:02:31,829 presenters for you today the first is a 75 00:02:29,039 --> 00:02:33,419 retired judge hooker Shaw who was a 76 00:02:31,830 --> 00:02:35,460 trial judge here in the state of 77 00:02:33,419 --> 00:02:36,959 Missouri where I am located for many 78 00:02:35,460 --> 00:02:38,400 many years and actually then 79 00:02:36,960 --> 00:02:40,800 subsequently sat on the Missouri Court 80 00:02:38,400 --> 00:02:43,830 Appeals so judge Shaw is quite literally 81 00:02:40,800 --> 00:02:45,810 a professional adjudicator and he has a 82 00:02:43,830 --> 00:02:48,090 lot of great experience and I know we'll 83 00:02:45,810 --> 00:02:50,849 have a lot to add to the conversation 84 00:02:48,090 --> 00:02:52,890 today in addition you've got back Scott 85 00:02:50,849 --> 00:02:55,379 Goldschmidt as Scott has been a part of 86 00:02:52,889 --> 00:02:56,819 all of those sessions here he's a big 87 00:02:55,379 --> 00:02:58,680 part of our higher education practice 88 00:02:56,819 --> 00:03:00,719 the former deputy general counsel at 89 00:02:58,680 --> 00:03:02,430 Catholic University in Washington DC 90 00:03:00,719 --> 00:03:04,259 Scott has worked on a wide range of 91 00:03:02,430 --> 00:03:07,740 matters for institutions including 92 00:03:04,259 --> 00:03:09,689 matters involving title 9 ok so the 93 00:03:07,740 --> 00:03:11,430 formal complaint framework just real 94 00:03:09,689 --> 00:03:13,439 quickly again to get you sort of set up 95 00:03:11,430 --> 00:03:15,659 before Scott starts to go into key 96 00:03:13,439 --> 00:03:17,939 concepts keep in mind and you've seen 97 00:03:15,659 --> 00:03:19,979 this graphic in every presentation the 98 00:03:17,939 --> 00:03:22,739 title 9 statute prohibits discrimination 99 00:03:19,979 --> 00:03:24,238 on the basis of sex and all programs and 100 00:03:22,739 --> 00:03:25,379 activities at institutions of higher 101 00:03:24,239 --> 00:03:27,539 education so that could be 102 00:03:25,379 --> 00:03:29,340 discrimination on the basis of sex in 103 00:03:27,539 --> 00:03:30,959 any any form it could be discrimination 104 00:03:29,340 --> 00:03:33,569 and employment or recruiting or 105 00:03:30,959 --> 00:03:35,699 athletics and if an institution gets a 106 00:03:33,569 --> 00:03:37,259 complaint along any of those lines then 107 00:03:35,699 --> 00:03:39,539 they have to have a process in place for 108 00:03:37,259 --> 00:03:41,789 addressing and resolving that complaint 109 00:03:39,539 --> 00:03:44,639 the new rule is focused more 110 00:03:41,789 --> 00:03:46,349 specifically on allegations or 111 00:03:44,639 --> 00:03:47,609 complaints of sexual harassment on 112 00:03:46,349 --> 00:03:49,799 campus and includes a new definition 113 00:03:47,610 --> 00:03:51,480 that we're calling title 9 sexual 114 00:03:49,800 --> 00:03:54,360 harassment and again in the first 115 00:03:51,479 --> 00:03:55,889 session of the series Scott and I talked 116 00:03:54,360 --> 00:03:57,570 about that definition of sexual 117 00:03:55,889 --> 00:04:00,119 harassment and how it relates to the new 118 00:03:57,569 --> 00:04:01,530 rule and the framework but here I just 119 00:04:00,120 --> 00:04:03,569 want you to keep in mind the new rule is 120 00:04:01,530 --> 00:04:06,390 really focused on sexual harassment not 121 00:04:03,569 --> 00:04:08,609 all forms of sex discrimination and more 122 00:04:06,389 --> 00:04:10,439 specifically it is focused on what an 123 00:04:08,610 --> 00:04:13,140 institution has to do if it gets a 124 00:04:10,439 --> 00:04:15,319 formal complaint of title 9 sexual 125 00:04:13,139 --> 00:04:17,849 harassment and that is really where the 126 00:04:15,319 --> 00:04:19,858 machinery that is set out in the new 127 00:04:17,850 --> 00:04:21,660 rule for managing investigations and 128 00:04:19,858 --> 00:04:23,430 hearings and appeals etc all comes into 129 00:04:21,660 --> 00:04:25,650 play it's when you have a formal 130 00:04:23,430 --> 00:04:27,350 complaint of title 9 sexual harassment 131 00:04:25,649 --> 00:04:30,469 there is a definition a formal complaint 132 00:04:27,350 --> 00:04:32,420 in the new law you see it here the key 133 00:04:30,470 --> 00:04:35,570 components are that it has to be in 134 00:04:32,420 --> 00:04:37,819 writing from a title 9 coordinator or a 135 00:04:35,569 --> 00:04:40,189 complainant more commonly you would 136 00:04:37,819 --> 00:04:42,529 expect probably from the complainant and 137 00:04:40,189 --> 00:04:45,259 it needs to allege sexual discrimination 138 00:04:42,529 --> 00:04:47,359 and requests that the institution act 139 00:04:45,259 --> 00:04:49,909 and in particular carry out and 140 00:04:47,360 --> 00:04:52,310 investigation if you get a formal 141 00:04:49,910 --> 00:04:54,290 complaint that's when you have to start 142 00:04:52,310 --> 00:04:56,899 your new process and you can see here 143 00:04:54,290 --> 00:05:00,200 this slide lays out all the different 144 00:04:56,899 --> 00:05:01,759 elements of the formal complaint process 145 00:05:00,199 --> 00:05:03,560 that are required under the new law and 146 00:05:01,759 --> 00:05:04,849 it's it's a lot it's a lot to wrap the 147 00:05:03,560 --> 00:05:06,680 brain around and in fact most of our 148 00:05:04,850 --> 00:05:08,810 training series is really focused on 149 00:05:06,680 --> 00:05:10,550 walking through these various elements 150 00:05:08,810 --> 00:05:12,319 you'll see there's only one highlighted 151 00:05:10,550 --> 00:05:13,939 for today again it's hearings but 152 00:05:12,319 --> 00:05:16,250 there's a lot to talk about in the 153 00:05:13,939 --> 00:05:19,459 context of hearings so with all of that 154 00:05:16,250 --> 00:05:22,810 having been said I will now turn it over 155 00:05:19,459 --> 00:05:25,129 to mr. goldsmith Scott how are you today 156 00:05:22,810 --> 00:05:27,350 I'm doing very well there and thank you 157 00:05:25,129 --> 00:05:28,839 and it's sure a pleasure to be here and 158 00:05:27,350 --> 00:05:30,920 to hopefully help you walk through 159 00:05:28,839 --> 00:05:34,250 hearings which is Erin mentioned is a 160 00:05:30,920 --> 00:05:36,439 really important and complex arrangement 161 00:05:34,250 --> 00:05:38,569 of the new title and I rule so the first 162 00:05:36,439 --> 00:05:40,430 thing I want to do is ground a few key 163 00:05:38,569 --> 00:05:43,370 concepts so I'll introduce these 164 00:05:40,430 --> 00:05:45,259 concepts here and then throw it over to 165 00:05:43,370 --> 00:05:46,759 judge shot to really kind of explain 166 00:05:45,259 --> 00:05:50,120 what they mean and based on his 167 00:05:46,759 --> 00:05:52,670 experience how they can be a minister so 168 00:05:50,120 --> 00:05:56,149 the first one is treating complainants 169 00:05:52,670 --> 00:05:58,129 and respondents this is this is a 170 00:05:56,149 --> 00:06:00,529 concept that permeates the entire rule 171 00:05:58,129 --> 00:06:02,810 and all of our training modules and just 172 00:06:00,529 --> 00:06:05,029 important to to remind everyone here one 173 00:06:02,810 --> 00:06:06,800 of the department's main focuses is is 174 00:06:05,029 --> 00:06:08,989 that complainants and respondents each 175 00:06:06,800 --> 00:06:11,060 be treated the same and fairly that that 176 00:06:08,990 --> 00:06:14,360 was a big impetus for the new rule and 177 00:06:11,060 --> 00:06:17,480 that should really ground most actions 178 00:06:14,360 --> 00:06:20,780 were taken by institutions Mexica 179 00:06:17,480 --> 00:06:24,280 concept is objectively evaluating all 180 00:06:20,779 --> 00:06:26,629 relevant and we'll get judge Shaw's 181 00:06:24,279 --> 00:06:28,729 interpretation or his analysis of 182 00:06:26,629 --> 00:06:30,439 relevant evidence in a second and that 183 00:06:28,730 --> 00:06:34,069 includes both inculpatory and 184 00:06:30,439 --> 00:06:35,810 exculpatory evidence and it also and 185 00:06:34,069 --> 00:06:38,180 also institutions need to provide that 186 00:06:35,810 --> 00:06:40,860 credibility determinations can't be made 187 00:06:38,180 --> 00:06:43,389 on a person status as you can 188 00:06:40,860 --> 00:06:46,300 responded or witnessed so just because a 189 00:06:43,389 --> 00:06:47,620 person is making a complaint doesn't 190 00:06:46,300 --> 00:06:51,370 mean they're any more or less believable 191 00:06:47,620 --> 00:06:53,019 same with respondent and last we'll talk 192 00:06:51,370 --> 00:06:54,459 about the presumption that the 193 00:06:53,019 --> 00:06:56,769 respondent is not responsible for 194 00:06:54,459 --> 00:06:59,529 alleged conduct until the determination 195 00:06:56,769 --> 00:07:02,169 is made at the end and that's something 196 00:06:59,529 --> 00:07:04,119 that needs to be explained upfront in 197 00:07:02,170 --> 00:07:09,280 your processes and policies and in 198 00:07:04,120 --> 00:07:11,170 notices that you provide sirs so good 199 00:07:09,279 --> 00:07:13,839 Shaw welcome and thank you for for being 200 00:07:11,170 --> 00:07:15,640 with us first question just a really 201 00:07:13,839 --> 00:07:17,289 foundational concept that I think is 202 00:07:15,639 --> 00:07:18,849 going to take us through the entire 203 00:07:17,290 --> 00:07:21,100 presentation and we'll have a section 204 00:07:18,850 --> 00:07:24,400 specifically on really intricate 205 00:07:21,100 --> 00:07:25,810 relevant questions later but what is 206 00:07:24,399 --> 00:07:27,429 relevance and we're going to talk about 207 00:07:25,810 --> 00:07:30,850 what relevant evidence what do we mean 208 00:07:27,430 --> 00:07:32,980 by that okay yes thank you Scott so when 209 00:07:30,850 --> 00:07:35,200 we talk about relevance what we're 210 00:07:32,980 --> 00:07:38,259 really talking about is whether or not 211 00:07:35,199 --> 00:07:41,860 this evidence is probative of a material 212 00:07:38,259 --> 00:07:45,699 fact does the evidence have a tendency 213 00:07:41,860 --> 00:07:48,730 to make the existence of a consequential 214 00:07:45,699 --> 00:07:54,069 or material fact more or less problem 215 00:07:48,730 --> 00:07:56,230 and that would be relevant evidence the 216 00:07:54,069 --> 00:07:59,709 project can sometimes the care of those 217 00:07:56,230 --> 00:08:04,150 Scott when but we'll talk more about 218 00:07:59,709 --> 00:08:06,099 relevance as we proceed but there can 219 00:08:04,149 --> 00:08:07,839 sometimes be some disagreements or 220 00:08:06,100 --> 00:08:09,070 discussion about what is relevant and 221 00:08:07,839 --> 00:08:12,279 what is not relevant 222 00:08:09,069 --> 00:08:14,800 and so the decision-maker will have to 223 00:08:12,279 --> 00:08:17,049 determine whether or not he or she wants 224 00:08:14,800 --> 00:08:19,360 to hear arguments or discussion about it 225 00:08:17,050 --> 00:08:22,420 but I think as we go along we'll see how 226 00:08:19,360 --> 00:08:25,569 this is going to be an important concept 227 00:08:22,420 --> 00:08:28,300 in the conduct of the year absolutely I 228 00:08:25,569 --> 00:08:30,730 definitely agree so now that we kind of 229 00:08:28,300 --> 00:08:32,620 talked about what is relevance and 230 00:08:30,730 --> 00:08:35,080 what's relevant evidence what the key 231 00:08:32,620 --> 00:08:37,509 concept here was that decision-makers 232 00:08:35,080 --> 00:08:40,660 need to objectively evaluate for all the 233 00:08:37,509 --> 00:08:42,639 evidence that sounds simple but I assume 234 00:08:40,659 --> 00:08:45,059 it might not be what does it mean to 235 00:08:42,639 --> 00:08:47,620 objectively evaluate relevant evidence 236 00:08:45,059 --> 00:08:50,559 and you hit the nail on the head this 237 00:08:47,620 --> 00:08:54,470 guy it sounds very simple but I can tell 238 00:08:50,559 --> 00:08:57,919 you having heard countless strong 239 00:08:54,470 --> 00:09:00,590 and even on appeal but to keep an open 240 00:08:57,919 --> 00:09:03,949 mind until all of the evidence had been 241 00:09:00,590 --> 00:09:07,160 submitted until you heard all sides of 242 00:09:03,950 --> 00:09:10,160 the event can sometimes be difficult and 243 00:09:07,159 --> 00:09:13,639 it is difficult for all of us I would 244 00:09:10,159 --> 00:09:16,429 say that you know jury research kind of 245 00:09:13,639 --> 00:09:19,039 delves into how people process 246 00:09:16,429 --> 00:09:21,229 information and I think it's kind of 247 00:09:19,039 --> 00:09:25,879 hardwired into human beings to be 248 00:09:21,230 --> 00:09:28,490 effective it is a ffcc tive decision 249 00:09:25,879 --> 00:09:31,610 makers it is we typically make our 250 00:09:28,490 --> 00:09:35,029 decisions particularly when there's a 251 00:09:31,610 --> 00:09:36,940 conflict we make we have a tendency to 252 00:09:35,029 --> 00:09:40,789 make our decisions relatively quickly 253 00:09:36,940 --> 00:09:44,330 based upon our past experiences impulse 254 00:09:40,789 --> 00:09:47,750 and emotion and you can't do that you 255 00:09:44,330 --> 00:09:49,790 have to be a cognitive decision-maker 256 00:09:47,750 --> 00:09:52,669 that is you have to wait until you've 257 00:09:49,789 --> 00:09:55,939 heard everything and there's always a 258 00:09:52,669 --> 00:09:59,110 tendency particularly if the party who 259 00:09:55,940 --> 00:10:03,140 goes first to complain it for instance 260 00:09:59,110 --> 00:10:04,700 goes first and you hear everything that 261 00:10:03,139 --> 00:10:06,919 person has to say and all of the 262 00:10:04,700 --> 00:10:09,560 evidence they have presented there then 263 00:10:06,919 --> 00:10:11,389 you know in Indy you know a tendency to 264 00:10:09,559 --> 00:10:14,000 make up your mind fairly quickly about 265 00:10:11,389 --> 00:10:16,279 what the outcome should be and I've had 266 00:10:14,000 --> 00:10:18,019 it happen to me many many times where 267 00:10:16,279 --> 00:10:21,529 I've heard one side and I thought oh 268 00:10:18,019 --> 00:10:23,569 well I've got this one done I know what 269 00:10:21,529 --> 00:10:25,490 happens here and sure enough you hear 270 00:10:23,570 --> 00:10:28,250 the other side and you go oh my goodness 271 00:10:25,490 --> 00:10:30,560 no so you have to just remind yourself 272 00:10:28,250 --> 00:10:32,929 that there are always at least two sides 273 00:10:30,559 --> 00:10:34,879 to a story that you have to be very 274 00:10:32,929 --> 00:10:37,699 patient with yourself and with the 275 00:10:34,879 --> 00:10:40,309 parties and it will get back to this 276 00:10:37,700 --> 00:10:42,770 also as we proceed you know it's not 277 00:10:40,309 --> 00:10:46,338 just being objective and keeping an open 278 00:10:42,769 --> 00:10:48,230 mind but you want to be patient with the 279 00:10:46,339 --> 00:10:50,660 party so they can see that you're 280 00:10:48,230 --> 00:10:53,480 keeping an open mind part of this whole 281 00:10:50,659 --> 00:10:55,879 process is for people to feel that they 282 00:10:53,480 --> 00:10:58,870 have been heard and listened to and that 283 00:10:55,879 --> 00:11:01,250 they've had if they are hearing and so 284 00:10:58,870 --> 00:11:04,250 open mind and this is something that I 285 00:11:01,250 --> 00:11:06,659 think one can communicate to the parties 286 00:11:04,250 --> 00:11:09,870 by being patient with them and 287 00:11:06,659 --> 00:11:12,809 listening to hear everything before you 288 00:11:09,870 --> 00:11:15,448 make a decision in case yeah no that is 289 00:11:12,809 --> 00:11:17,729 sure great points and great advice I'll 290 00:11:15,448 --> 00:11:20,609 just add one piece here that's specific 291 00:11:17,730 --> 00:11:23,399 to the title 9 rule the the regulations 292 00:11:20,610 --> 00:11:25,620 explained that when decision-makers 293 00:11:23,399 --> 00:11:28,289 received a report from an investigator 294 00:11:25,620 --> 00:11:31,620 there they're not supposed to show any 295 00:11:28,289 --> 00:11:33,000 any deference to any decisions or 296 00:11:31,620 --> 00:11:35,490 conclusions and not that they should be 297 00:11:33,000 --> 00:11:37,919 made that an investigator poses that the 298 00:11:35,490 --> 00:11:40,470 record is just to aid decision-makers 299 00:11:37,919 --> 00:11:45,360 but all evidence as judge Shaw said 300 00:11:40,470 --> 00:11:48,540 needs to be reviewed and objectively 301 00:11:45,360 --> 00:11:51,750 evaluated based on their experience 302 00:11:48,539 --> 00:11:54,899 there and let me get to the second 303 00:11:51,750 --> 00:11:57,389 question on the slide the regulations 304 00:11:54,899 --> 00:11:59,339 explain that decision-makers need to 305 00:11:57,389 --> 00:12:01,730 objectively evaluate relevant evidence 306 00:11:59,339 --> 00:12:03,149 including inculpatory and exculpatory 307 00:12:01,730 --> 00:12:04,500 evidence 308 00:12:03,149 --> 00:12:06,539 so these are the legal terms of art 309 00:12:04,500 --> 00:12:09,269 could you explain what those two terms 310 00:12:06,539 --> 00:12:12,179 mean yeah I mean when you're talking 311 00:12:09,269 --> 00:12:14,039 about inculpatory evidence that is 312 00:12:12,179 --> 00:12:16,559 evidence that's going to be presented by 313 00:12:14,039 --> 00:12:19,078 the complainant it is this is evidence 314 00:12:16,559 --> 00:12:22,679 that tends to show the respondents 315 00:12:19,078 --> 00:12:24,568 responsibility and exculpatory evidence 316 00:12:22,679 --> 00:12:26,698 is the other side of that coin that is 317 00:12:24,568 --> 00:12:30,559 evidence this tends to show that the 318 00:12:26,698 --> 00:12:30,559 respondent is not responsible 319 00:12:30,679 --> 00:12:35,309 thank you and so the other one of the 320 00:12:33,778 --> 00:12:37,730 other key concepts we talked about is 321 00:12:35,309 --> 00:12:40,559 the the presumption I'm sorry is 322 00:12:37,730 --> 00:12:43,379 credibility so here our credibility 323 00:12:40,559 --> 00:12:44,909 determinations can't be made based on a 324 00:12:43,379 --> 00:12:49,169 person's status as complainant 325 00:12:44,909 --> 00:12:51,808 respondent so what our credibility 326 00:12:49,169 --> 00:12:53,808 determinations how will they come up at 327 00:12:51,808 --> 00:12:56,549 a hearing and why are they significant 328 00:12:53,808 --> 00:12:57,750 well credibility determinations are 329 00:12:56,549 --> 00:13:00,179 always going to come up in a hearing 330 00:12:57,750 --> 00:13:02,360 because it simply has to do with the 331 00:13:00,179 --> 00:13:05,128 believability of the witness 332 00:13:02,360 --> 00:13:07,139 believability of the report and the 333 00:13:05,129 --> 00:13:11,278 weight in significance to be given to 334 00:13:07,139 --> 00:13:14,639 any evidence that's submitted and so I 335 00:13:11,278 --> 00:13:16,889 think throughout the course of a hearing 336 00:13:14,639 --> 00:13:18,240 the adjudicator is going to have to 337 00:13:16,889 --> 00:13:20,549 weigh the evidence and make a 338 00:13:18,240 --> 00:13:23,279 determination based upon his or 339 00:13:20,549 --> 00:13:25,769 on experienced and common sense as to 340 00:13:23,279 --> 00:13:28,279 what evidence is believable and what 341 00:13:25,769 --> 00:13:32,220 evidence may be less believable 342 00:13:28,279 --> 00:13:35,970 oftentimes in my experience you as 343 00:13:32,220 --> 00:13:40,580 jurors are instructed you are to observe 344 00:13:35,970 --> 00:13:43,440 the manner of witnesses while testifying 345 00:13:40,580 --> 00:13:46,430 whether the evidence that they are 346 00:13:43,440 --> 00:13:49,050 testifying to is something they directly 347 00:13:46,429 --> 00:13:51,089 witness that is they saw themselves or 348 00:13:49,049 --> 00:13:53,069 something that they were told that 349 00:13:51,090 --> 00:13:55,320 happened whether or not there is 350 00:13:53,070 --> 00:13:57,750 evidence that corroborates or supports 351 00:13:55,320 --> 00:13:59,610 the testimony of the witness is there 352 00:13:57,750 --> 00:14:02,070 any physical evidence or is it strictly 353 00:13:59,610 --> 00:14:04,230 testimonial evidence is it 354 00:14:02,070 --> 00:14:05,970 circumstantial evidence and you know 355 00:14:04,230 --> 00:14:08,159 circumstantial evidence indirect 356 00:14:05,970 --> 00:14:11,730 evidence we'll get into that a little 357 00:14:08,159 --> 00:14:14,309 bit more later and then sometimes the 358 00:14:11,730 --> 00:14:16,529 credible evidence is on both sides so 359 00:14:14,309 --> 00:14:18,149 both sides are equally credible but 360 00:14:16,529 --> 00:14:21,179 that's a determination that the 361 00:14:18,149 --> 00:14:24,029 adjudicator is going to have to make one 362 00:14:21,179 --> 00:14:27,629 need not be intimidated about this and 363 00:14:24,029 --> 00:14:30,240 you need not be a judge jurist or lawyer 364 00:14:27,629 --> 00:14:33,419 to make credibility determinations 365 00:14:30,240 --> 00:14:36,990 jurors do it each and every day all the 366 00:14:33,419 --> 00:14:40,019 time all over the United States so you 367 00:14:36,990 --> 00:14:43,080 know basically as an adult you come into 368 00:14:40,019 --> 00:14:46,079 this process as an adjudicator would 369 00:14:43,080 --> 00:14:48,509 based upon life's experiences and I 370 00:14:46,080 --> 00:14:51,060 think that qualifies you to do so and if 371 00:14:48,509 --> 00:14:55,139 it ultimately ends up being a he-said 372 00:14:51,059 --> 00:14:57,599 she-said situation as you mentioned and 373 00:14:55,139 --> 00:15:00,419 the adjudicator finds that both sides 374 00:14:57,600 --> 00:15:02,820 are credible then of course we look at 375 00:15:00,419 --> 00:15:04,939 what the standard of proof is and and of 376 00:15:02,820 --> 00:15:07,860 course then the adjudicator will likely 377 00:15:04,940 --> 00:15:10,260 find it under those circumstances that 378 00:15:07,860 --> 00:15:14,850 the complaint has not been sufficiently 379 00:15:10,259 --> 00:15:18,240 proved so this will happen of course but 380 00:15:14,850 --> 00:15:21,779 yeah I think that an adjudicator will 381 00:15:18,240 --> 00:15:23,610 clearly be able to do this and the last 382 00:15:21,779 --> 00:15:25,559 key concept from that first slide that 383 00:15:23,610 --> 00:15:28,289 we talked about is that the presumption 384 00:15:25,559 --> 00:15:31,799 of innocence or presumption of not 385 00:15:28,289 --> 00:15:34,319 responsibility for the response doctor 386 00:15:31,799 --> 00:15:38,250 ah can you get into what that means and 387 00:15:34,320 --> 00:15:41,120 how the decision-maker would have to 388 00:15:38,250 --> 00:15:43,500 have to understand this inside of here 389 00:15:41,120 --> 00:15:45,570 yeah I think the presumption of 390 00:15:43,500 --> 00:15:48,330 innocence that goes right along with 391 00:15:45,570 --> 00:15:51,510 keeping an open mind it is because a 392 00:15:48,330 --> 00:15:54,840 complaint has been made that the 393 00:15:51,509 --> 00:15:57,659 adjudicator cannot assume either that it 394 00:15:54,840 --> 00:15:59,519 proves it Dorit disproves that the 395 00:15:57,659 --> 00:16:02,250 adjudicator simply has to keep an open 396 00:15:59,519 --> 00:16:06,470 mind until everything has been seen on 397 00:16:02,250 --> 00:16:08,940 earth and that's simply wait a minute 398 00:16:06,470 --> 00:16:10,529 and that and that's I think that's right 399 00:16:08,940 --> 00:16:12,240 and I think we'll we'll get into this 400 00:16:10,529 --> 00:16:14,879 more when we talk about burdens of proof 401 00:16:12,240 --> 00:16:19,289 to how it plays out but that's a very 402 00:16:14,879 --> 00:16:22,590 helpful explanation here so moving on to 403 00:16:19,289 --> 00:16:24,449 some other key concepts so first 404 00:16:22,590 --> 00:16:26,340 decision makers also have to make sure 405 00:16:24,450 --> 00:16:29,070 they don't have a conflict of interest 406 00:16:26,340 --> 00:16:32,220 or bias and the regulations specify in 407 00:16:29,070 --> 00:16:34,320 two separate ways so first for or 408 00:16:32,220 --> 00:16:38,009 against complainants or respondents in 409 00:16:34,320 --> 00:16:41,450 general so that could mean a decision 410 00:16:38,009 --> 00:16:44,549 maker that has a bias against 411 00:16:41,450 --> 00:16:46,320 respondents or our athletes or something 412 00:16:44,549 --> 00:16:48,329 like that that would just disqualify 413 00:16:46,320 --> 00:16:50,280 them completely they cannot keep an open 414 00:16:48,330 --> 00:16:52,889 mind and the second piece you can have a 415 00:16:50,279 --> 00:16:54,929 conflict of interest or bias against an 416 00:16:52,889 --> 00:16:56,399 individual complaint it will respond so 417 00:16:54,929 --> 00:16:58,709 even if you could keep an open mind in 418 00:16:56,399 --> 00:17:01,980 general toward these the status of the 419 00:16:58,710 --> 00:17:03,840 party assumably you might know the 420 00:17:01,980 --> 00:17:05,910 individual complainant or you might know 421 00:17:03,840 --> 00:17:08,370 some history about might have interacted 422 00:17:05,910 --> 00:17:09,930 them in a way we can't keep it alive so 423 00:17:08,369 --> 00:17:11,159 both prongs are important and 424 00:17:09,930 --> 00:17:14,549 decision-makers need to ensure they 425 00:17:11,160 --> 00:17:17,009 don't have a conflict or biases second 426 00:17:14,549 --> 00:17:19,789 as Jenna alluded to is the standard of 427 00:17:17,009 --> 00:17:22,529 evidence and schools have a choice 428 00:17:19,789 --> 00:17:23,849 absent state law requirements of did the 429 00:17:22,529 --> 00:17:26,609 preponderance of the evidence standard 430 00:17:23,849 --> 00:17:29,189 or the clear and convincing evidence and 431 00:17:26,609 --> 00:17:31,979 we'll explain what each mean and how you 432 00:17:29,190 --> 00:17:35,100 evaluate facts under under both and the 433 00:17:31,980 --> 00:17:39,569 last P concept for the slide is you 434 00:17:35,099 --> 00:17:41,480 can't require allow rely on or otherwise 435 00:17:39,569 --> 00:17:43,439 use questions or evidence that 436 00:17:41,480 --> 00:17:45,599 constitute or seek disclosure of 437 00:17:43,440 --> 00:17:47,610 information protected under a legally 438 00:17:45,599 --> 00:17:48,928 recognized privilege 439 00:17:47,609 --> 00:17:53,069 and we'll definitely get in into that 440 00:17:48,929 --> 00:17:54,960 and the caveat here is that that that is 441 00:17:53,069 --> 00:17:56,659 presumption is there unless the person 442 00:17:54,960 --> 00:18:02,759 holding the privilege the person 443 00:17:56,660 --> 00:18:05,610 actually waived them so judge Shaw let's 444 00:18:02,759 --> 00:18:08,579 let's dig into the two standards so the 445 00:18:05,609 --> 00:18:09,959 first one that schools can choose is the 446 00:18:08,579 --> 00:18:13,980 preponderance of the evidence standard 447 00:18:09,960 --> 00:18:15,900 um what does that mean so preponderance 448 00:18:13,980 --> 00:18:18,179 of the evidence is typically the 449 00:18:15,900 --> 00:18:21,990 standard used in courts in civil cases 450 00:18:18,179 --> 00:18:24,660 and it's proof that a particular fact or 451 00:18:21,990 --> 00:18:28,558 event was more likely than not to have 452 00:18:24,660 --> 00:18:31,200 occurred and so we often talk about 453 00:18:28,558 --> 00:18:35,250 preponderance of the evidence is 51 454 00:18:31,200 --> 00:18:38,130 percent of the evidence on one side or 455 00:18:35,250 --> 00:18:42,119 the other or if for instance on the 456 00:18:38,130 --> 00:18:43,890 scales a feather is enough to make one 457 00:18:42,119 --> 00:18:46,109 scale a little bit more than the other 458 00:18:43,890 --> 00:18:49,530 that would be a preponderance of the 459 00:18:46,109 --> 00:18:51,269 evidence perfect and then I like to ask 460 00:18:49,529 --> 00:18:53,789 the same question I'm clear and 461 00:18:51,269 --> 00:18:55,440 convincing and then if you wouldn't mind 462 00:18:53,789 --> 00:18:58,200 just just expanding if you were an 463 00:18:55,440 --> 00:19:00,558 adjudicator how would after explaining 464 00:18:58,200 --> 00:19:02,370 very convincing how would each standard 465 00:19:00,558 --> 00:19:04,109 apply how would you how would you 466 00:19:02,369 --> 00:19:05,369 analyze facts on jury to be really 467 00:19:04,109 --> 00:19:09,689 curious to know your opinion on that 468 00:19:05,369 --> 00:19:12,449 okay so a clear and convincing is a 469 00:19:09,690 --> 00:19:15,870 higher standard that is the adjudicator 470 00:19:12,450 --> 00:19:18,090 needs to be firmly convinced it's not 471 00:19:15,869 --> 00:19:20,869 beyond a reasonable doubt but it's proof 472 00:19:18,089 --> 00:19:23,909 that a particular fact was highly and 473 00:19:20,869 --> 00:19:29,729 substantially more likely to be true 474 00:19:23,910 --> 00:19:31,620 than untrue so in in the clear and 475 00:19:29,730 --> 00:19:33,480 convincing it's a higher standard but 476 00:19:31,619 --> 00:19:36,329 it's not proof beyond a reasonable doubt 477 00:19:33,480 --> 00:19:39,419 the adjudicator needs to be firmly 478 00:19:36,329 --> 00:19:42,000 convinced more likely than not is the 479 00:19:39,419 --> 00:19:45,590 lesser standard I think in many 480 00:19:42,000 --> 00:19:51,829 instances it's going to be a 50/50 481 00:19:45,589 --> 00:19:55,689 situation and in that instance then 482 00:19:51,829 --> 00:19:59,269 the burden the standard has not been met 483 00:19:55,690 --> 00:20:01,370 and and that often happens we hear in 484 00:19:59,269 --> 00:20:04,430 trials for instance where he had a hung 485 00:20:01,369 --> 00:20:06,619 jury and oftentimes the jurors will come 486 00:20:04,430 --> 00:20:09,380 back and say well you know we thought 487 00:20:06,619 --> 00:20:10,809 both sides were fairly believable or we 488 00:20:09,380 --> 00:20:15,440 thought both sides were fairly 489 00:20:10,809 --> 00:20:17,210 unbelievable so you know we determined 490 00:20:15,440 --> 00:20:21,650 that the burden of proof was not met 491 00:20:17,210 --> 00:20:24,140 here in the legal realm though clear and 492 00:20:21,650 --> 00:20:26,470 convincing is a higher standard is that 493 00:20:24,140 --> 00:20:32,530 is typically used under circumstances 494 00:20:26,470 --> 00:20:37,779 where the conduct is considered to be 495 00:20:32,529 --> 00:20:40,789 reprehensible or much more dangerous or 496 00:20:37,779 --> 00:20:46,579 the penalties are much more severe and 497 00:20:40,789 --> 00:20:49,159 so under legal standards that we use in 498 00:20:46,579 --> 00:20:53,059 courtrooms the clear and convincing 499 00:20:49,160 --> 00:20:58,640 standard is only used in those rare 500 00:20:53,059 --> 00:21:00,289 instances and typically it's by a 501 00:20:58,640 --> 00:21:02,900 preponderance of the evidence 502 00:21:00,289 --> 00:21:04,430 yeah and that that's that's a great 503 00:21:02,900 --> 00:21:08,030 distinction and it's just important to 504 00:21:04,430 --> 00:21:09,950 emphasize that that the absent state law 505 00:21:08,029 --> 00:21:12,470 requirement that mandates each schools 506 00:21:09,950 --> 00:21:14,299 really need to think through which of 507 00:21:12,470 --> 00:21:18,710 the two requirements kind of meets the 508 00:21:14,299 --> 00:21:20,720 mission and the kind of the goals of the 509 00:21:18,710 --> 00:21:22,640 institution and then apply that 510 00:21:20,720 --> 00:21:25,370 standards for all formal complaints of 511 00:21:22,640 --> 00:21:26,780 sexual harassment so let's move on talk 512 00:21:25,369 --> 00:21:29,539 about live hearings that's another 513 00:21:26,779 --> 00:21:32,200 requirement of the regulations for 514 00:21:29,539 --> 00:21:36,139 hearings so under the standard 515 00:21:32,200 --> 00:21:37,549 institutions are required to include a 516 00:21:36,140 --> 00:21:41,030 live hearing in their formal complaint 517 00:21:37,549 --> 00:21:42,829 process important to note and this is 518 00:21:41,029 --> 00:21:45,680 especially important with with smaller 519 00:21:42,829 --> 00:21:47,480 institutions that may not have a lot of 520 00:21:45,680 --> 00:21:48,830 personnel to kind of manage all these 521 00:21:47,480 --> 00:21:52,339 roles and a lot of people wear different 522 00:21:48,829 --> 00:21:55,339 hats but it's the adjudicator here 523 00:21:52,339 --> 00:21:57,169 cannot be the same person as the title 9 524 00:21:55,339 --> 00:21:59,569 coordinator or the investigators so just 525 00:21:57,170 --> 00:22:00,680 regardless of how many people have on 526 00:21:59,569 --> 00:22:03,109 your staff you have to make sure your 527 00:22:00,680 --> 00:22:05,929 adjudicator is not your coordinator or 528 00:22:03,109 --> 00:22:08,508 your investigate oh absolutely 529 00:22:05,929 --> 00:22:10,999 request from from parties live hearings 530 00:22:08,509 --> 00:22:13,579 can be conducted either with all parties 531 00:22:10,999 --> 00:22:16,730 physically present or with participants 532 00:22:13,579 --> 00:22:18,888 appearing virtually and technology here 533 00:22:16,730 --> 00:22:21,019 as we're doing in this training is 534 00:22:18,888 --> 00:22:23,288 enabling everyone to see and hear each 535 00:22:21,019 --> 00:22:26,569 other to kind of understand the 536 00:22:23,288 --> 00:22:33,648 demeanors and the actions kind of see 537 00:22:26,569 --> 00:22:35,569 everyone in addition to hearing but at 538 00:22:33,648 --> 00:22:37,069 the request of either party so either 539 00:22:35,569 --> 00:22:39,888 the complainant or respondent can make 540 00:22:37,069 --> 00:22:41,960 this request and if they do schools must 541 00:22:39,888 --> 00:22:44,658 provide with a live hearing to occur 542 00:22:41,960 --> 00:22:46,159 with parties in separate rooms again 543 00:22:44,659 --> 00:22:47,919 with technologies enabling the 544 00:22:46,159 --> 00:22:50,179 adjudicator is the decision makers to 545 00:22:47,919 --> 00:22:52,970 see in here the parties and the parties 546 00:22:50,179 --> 00:22:55,509 are able to similarly see it hear each 547 00:22:52,970 --> 00:22:58,069 other or witnesses answering questions 548 00:22:55,509 --> 00:23:01,368 another obligations for schools is to 549 00:22:58,069 --> 00:23:03,470 create or audio or audio-visual 550 00:23:01,368 --> 00:23:05,418 recording or transcript of any live 551 00:23:03,470 --> 00:23:08,839 hearing and make it available for the 552 00:23:05,419 --> 00:23:11,090 parties for inspection so let's let's 553 00:23:08,839 --> 00:23:14,178 now talk about the rules for hearing so 554 00:23:11,089 --> 00:23:15,829 judge Shaw before we in the past couple 555 00:23:14,179 --> 00:23:19,399 slides we've discussed what the 556 00:23:15,829 --> 00:23:21,109 regulations require as a floor but the 557 00:23:19,398 --> 00:23:23,388 regulations in preamble also explain 558 00:23:21,109 --> 00:23:26,808 that that schools can institute certain 559 00:23:23,388 --> 00:23:29,538 rules and conduct that that kind of fill 560 00:23:26,808 --> 00:23:32,960 in some of the gaps for how a hearing 561 00:23:29,538 --> 00:23:35,960 should should commence what are some of 562 00:23:32,960 --> 00:23:40,369 the rules that institutions can adopt 563 00:23:35,960 --> 00:23:42,470 and and should they yes 564 00:23:40,368 --> 00:23:44,990 well Scott I mean I think it will be 565 00:23:42,470 --> 00:23:49,129 very important for schools to adopt 566 00:23:44,990 --> 00:23:53,028 rules of decorum and orderliness to 567 00:23:49,128 --> 00:23:56,329 avoid chaos and these include the order 568 00:23:53,028 --> 00:23:59,089 of the proceedings timing and length of 569 00:23:56,329 --> 00:24:01,759 breaks prohibition on disturbing the 570 00:23:59,089 --> 00:24:05,148 hearings and prohibition on badgering 571 00:24:01,759 --> 00:24:07,038 are arguing with witnesses and I think 572 00:24:05,148 --> 00:24:08,808 you know what when I reflect on my 573 00:24:07,038 --> 00:24:11,269 experience when I first started it how 574 00:24:08,808 --> 00:24:14,509 does the judge they start to kind of at 575 00:24:11,269 --> 00:24:16,460 the bottom of the totem pole and I had a 576 00:24:14,509 --> 00:24:19,640 lot of these hearings without lawyers 577 00:24:16,460 --> 00:24:21,860 present or very young or any 578 00:24:19,640 --> 00:24:23,750 perience lawyers but oftentimes they 579 00:24:21,859 --> 00:24:25,879 were pro se that is people who were 580 00:24:23,750 --> 00:24:29,150 unrepresented by lawyers and knew 581 00:24:25,880 --> 00:24:32,570 nothing about court proceedings and I 582 00:24:29,150 --> 00:24:35,509 heard small claims cases and like you 583 00:24:32,569 --> 00:24:38,269 see on People's Court and let me remind 584 00:24:35,509 --> 00:24:40,579 you though in real life people don't 585 00:24:38,269 --> 00:24:43,730 behave as nicely as they do won People's 586 00:24:40,579 --> 00:24:45,679 Court I had a lady hit a guy upside the 587 00:24:43,730 --> 00:24:48,110 head with a high-heeled shoe one time 588 00:24:45,680 --> 00:24:50,900 and another guy grabbed a folding chair 589 00:24:48,109 --> 00:24:53,179 and hit a guy once a man you may even 590 00:24:50,900 --> 00:24:56,870 want to consider having a security 591 00:24:53,180 --> 00:24:59,750 officer present because you know these 592 00:24:56,869 --> 00:25:04,189 are there is a potential for there to be 593 00:24:59,750 --> 00:25:06,170 high emotion in the room and you don't 594 00:25:04,190 --> 00:25:08,420 want the process to completely break 595 00:25:06,170 --> 00:25:10,460 down because someone has been so 596 00:25:08,420 --> 00:25:12,170 affected one way or another that is very 597 00:25:10,460 --> 00:25:15,470 difficult for them to control their 598 00:25:12,170 --> 00:25:18,410 emotions so to have rules of decorum and 599 00:25:15,470 --> 00:25:21,559 order that the parties understand that 600 00:25:18,410 --> 00:25:23,590 or explain that are repeated there is no 601 00:25:21,559 --> 00:25:27,409 reason for there to have this kind of 602 00:25:23,589 --> 00:25:30,259 unruliness and nobody can complain of 603 00:25:27,410 --> 00:25:31,910 any ambush they know what to expect 604 00:25:30,259 --> 00:25:34,910 what the process is going to look like 605 00:25:31,910 --> 00:25:37,430 and how they're going to proceed and and 606 00:25:34,910 --> 00:25:39,590 you know great points and just want to 607 00:25:37,430 --> 00:25:41,539 add that any rules you do adopt as an 608 00:25:39,589 --> 00:25:43,730 institution just getting back to that 609 00:25:41,539 --> 00:25:46,339 first key concept of fairness and equity 610 00:25:43,730 --> 00:25:48,019 bility need to apply equally to both 611 00:25:46,339 --> 00:25:50,269 parties yes 612 00:25:48,019 --> 00:25:53,240 so next let's let's move on to talk 613 00:25:50,269 --> 00:25:55,819 about advisers and we'll start with the 614 00:25:53,240 --> 00:25:58,750 requirements of the regulation with 615 00:25:55,819 --> 00:25:58,750 regard to advisers 616 00:25:59,799 --> 00:26:04,089 so first requirement is that schools 617 00:26:01,809 --> 00:26:06,339 must afford parties and people 618 00:26:04,089 --> 00:26:07,959 opportunity to have an advisor during 619 00:26:06,339 --> 00:26:10,089 any aspect of the formal complaint 620 00:26:07,960 --> 00:26:12,400 process so it's kind preview at the 621 00:26:10,089 --> 00:26:14,049 start of the presentation formal 622 00:26:12,400 --> 00:26:16,740 complaint processes to the term of art 623 00:26:14,049 --> 00:26:19,960 and once that process is initiated 624 00:26:16,740 --> 00:26:23,140 institutions have to afford the parties 625 00:26:19,960 --> 00:26:25,180 and ability advisor advisors maybe an 626 00:26:23,140 --> 00:26:27,100 attorney advisers may not be an attorney 627 00:26:25,180 --> 00:26:29,529 advisor could be a friend a family 628 00:26:27,099 --> 00:26:31,240 member of classmate there's no 629 00:26:29,529 --> 00:26:33,789 prohibition and there cannot be any 630 00:26:31,240 --> 00:26:37,539 prohibition on having an advisor also be 631 00:26:33,789 --> 00:26:40,029 a practicing attorney so as schools 632 00:26:37,539 --> 00:26:43,180 can't restrict the choice of advisor or 633 00:26:40,029 --> 00:26:45,910 the advisors presence so in certain 634 00:26:43,180 --> 00:26:48,640 situations you may be able to restrict 635 00:26:45,910 --> 00:26:50,200 the activity of an advisor which we'll 636 00:26:48,640 --> 00:26:52,090 talk about but the fact that the 637 00:26:50,200 --> 00:26:55,330 advisors presence is there can't be 638 00:26:52,089 --> 00:26:56,980 referred and that schools may restrict 639 00:26:55,329 --> 00:27:01,359 participation in the proceedings 640 00:26:56,980 --> 00:27:03,880 as long as those restrictions play so 641 00:27:01,359 --> 00:27:05,199 this is this is the the big topic of the 642 00:27:03,880 --> 00:27:07,060 new regulations I think we're going to 643 00:27:05,200 --> 00:27:09,039 spend a significant significant amount 644 00:27:07,059 --> 00:27:11,649 of time on that and really lean on judge 645 00:27:09,039 --> 00:27:13,440 Shaw's expertise here but but first 646 00:27:11,650 --> 00:27:17,009 let's get to cross-examination 647 00:27:13,440 --> 00:27:19,450 requirement so adjudicators 648 00:27:17,009 --> 00:27:22,750 decision-makers must permit each party's 649 00:27:19,450 --> 00:27:26,920 advisor to conduct process examination 650 00:27:22,750 --> 00:27:28,839 of any other party or any witnesses the 651 00:27:26,920 --> 00:27:31,300 rules specified that the 652 00:27:28,839 --> 00:27:34,419 cross-examination must be the live 653 00:27:31,299 --> 00:27:36,389 hearing and conducted orally directly 654 00:27:34,420 --> 00:27:39,690 and in real time 655 00:27:36,390 --> 00:27:41,790 never the rules make very clear can 656 00:27:39,690 --> 00:27:44,440 cross-examination be done by a party 657 00:27:41,789 --> 00:27:47,019 post examination always has to be done 658 00:27:44,440 --> 00:27:49,090 by the parties advised and if the party 659 00:27:47,019 --> 00:27:51,579 doesn't have an advice it's the 660 00:27:49,089 --> 00:27:54,879 obligation of the institution to provide 661 00:27:51,579 --> 00:27:56,409 one to the student free of charge to 662 00:27:54,880 --> 00:27:57,940 conduct that cross-examination 663 00:27:56,410 --> 00:27:59,980 now when the institution provides an 664 00:27:57,940 --> 00:28:03,730 advisor who can do it it can choose an 665 00:27:59,980 --> 00:28:05,289 advisory of the institution's choice but 666 00:28:03,730 --> 00:28:07,269 they still must provide an advisor 667 00:28:05,289 --> 00:28:09,879 because how else that student will not 668 00:28:07,269 --> 00:28:11,548 have the ability to to have to conduct 669 00:28:09,880 --> 00:28:12,690 cross-examination and when 670 00:28:11,548 --> 00:28:18,628 have the benefit of having someone 671 00:28:12,690 --> 00:28:22,590 advising and when is so the department 672 00:28:18,628 --> 00:28:25,428 here explains in the preamble why 673 00:28:22,589 --> 00:28:28,499 advisors are are necessary so 674 00:28:25,429 --> 00:28:33,179 cross-examination is a big touchstone of 675 00:28:28,499 --> 00:28:35,690 the regulations and it's many times 676 00:28:33,179 --> 00:28:38,220 discussed how it's the best engine of 677 00:28:35,690 --> 00:28:39,509 determining the truth at heating and 678 00:28:38,220 --> 00:28:43,950 that's why the department is very keen 679 00:28:39,509 --> 00:28:45,960 on having this process here at these 680 00:28:43,950 --> 00:28:48,659 hearings and the department makes very 681 00:28:45,960 --> 00:28:51,778 clear that this is an adversarial 682 00:28:48,659 --> 00:28:55,710 process it doesn't it doesn't have the 683 00:28:51,778 --> 00:28:57,210 the same impetus or ability to get the 684 00:28:55,710 --> 00:28:58,528 truth and point across if someone's a 685 00:28:57,210 --> 00:29:01,230 neutral official conducting 686 00:28:58,528 --> 00:29:03,028 cross-examination so so the department's 687 00:29:01,230 --> 00:29:05,220 saying this is adversarial we want an 688 00:29:03,028 --> 00:29:07,079 adversarial party conducting this 689 00:29:05,220 --> 00:29:08,239 cross-examination and as we'll talk 690 00:29:07,079 --> 00:29:10,798 about later that doesn't mean 691 00:29:08,239 --> 00:29:15,028 adversarial does not mean inappropriate 692 00:29:10,798 --> 00:29:17,128 or yelling or screaming or being rude it 693 00:29:15,028 --> 00:29:18,659 just means that the interests of the 694 00:29:17,128 --> 00:29:21,209 party conducting the cross-examination 695 00:29:18,659 --> 00:29:26,100 are not the same as the interest of the 696 00:29:21,210 --> 00:29:29,399 person on the receiving end um 697 00:29:26,099 --> 00:29:30,480 so judge Shaw taking from from your 698 00:29:29,398 --> 00:29:32,248 experience I think you give us a little 699 00:29:30,480 --> 00:29:34,528 taste of that with your with your high 700 00:29:32,249 --> 00:29:36,629 heel incident before but let me start 701 00:29:34,528 --> 00:29:40,919 with with a question about adversarial 702 00:29:36,628 --> 00:29:42,569 advisors so yep uh parties so if a 703 00:29:40,919 --> 00:29:45,480 complaint and respondents advisor of 704 00:29:42,569 --> 00:29:49,019 choice refuses to comply with the 705 00:29:45,480 --> 00:29:50,460 schools rules of decorum that we 706 00:29:49,019 --> 00:29:51,778 explained earlier so they're they're 707 00:29:50,460 --> 00:29:53,999 yelling the other part either they're 708 00:29:51,778 --> 00:29:57,118 being rude just things that aren't that 709 00:29:53,999 --> 00:29:58,679 are not helpful or conducted can the 710 00:29:57,118 --> 00:30:02,009 school require the party to use a 711 00:29:58,679 --> 00:30:04,379 different advisement yes and as you 712 00:30:02,009 --> 00:30:08,220 alluded to this guide I think this is 713 00:30:04,378 --> 00:30:10,069 probably the area where there is the 714 00:30:08,220 --> 00:30:12,899 greatest danger of loss of decorum 715 00:30:10,069 --> 00:30:16,829 because the the phrase adversarial 716 00:30:12,898 --> 00:30:19,288 proceeding can sometimes be mistaken by 717 00:30:16,829 --> 00:30:21,868 some lawyers and and others who are not 718 00:30:19,288 --> 00:30:25,109 lawyers to think that they this is the 719 00:30:21,868 --> 00:30:28,199 chance to holler and shout and argue 720 00:30:25,109 --> 00:30:29,638 with a witness what it means is that 721 00:30:28,200 --> 00:30:33,480 you're allowed to ask leading questions 722 00:30:29,638 --> 00:30:37,378 that is questions that suggest an answer 723 00:30:33,480 --> 00:30:39,899 or propose an answer but in order for 724 00:30:37,378 --> 00:30:44,538 the adjudicator to maintain decorum 725 00:30:39,898 --> 00:30:47,849 there must be some means by which an 726 00:30:44,538 --> 00:30:50,700 advisor who is completely out of control 727 00:30:47,849 --> 00:30:52,469 can be checked otherwise the proceedings 728 00:30:50,700 --> 00:30:54,509 fall apart and you never get anything 729 00:30:52,470 --> 00:30:57,929 done and you can't reach any resolution 730 00:30:54,509 --> 00:31:02,419 that way so I think this may be an 731 00:30:57,929 --> 00:31:05,639 important process and an opportunity 732 00:31:02,419 --> 00:31:09,629 coordinate an adjudicator to simply say 733 00:31:05,638 --> 00:31:10,979 we can't proceed with this adviser let's 734 00:31:09,628 --> 00:31:13,138 touch about that a little a little more 735 00:31:10,980 --> 00:31:16,558 so on the next slide we're here talking 736 00:31:13,138 --> 00:31:18,439 about assuming we have attorneys but 737 00:31:16,558 --> 00:31:22,168 really it could be anyone it could be a 738 00:31:18,440 --> 00:31:24,720 classmate or a parent that just is is is 739 00:31:22,169 --> 00:31:27,419 overzealous potentially in good faith of 740 00:31:24,720 --> 00:31:29,579 their of their potential advocacy on the 741 00:31:27,419 --> 00:31:31,830 part of their their party um it's in 742 00:31:29,579 --> 00:31:33,210 general how to how do you decision 743 00:31:31,829 --> 00:31:37,319 makers how to presiding officers 744 00:31:33,210 --> 00:31:41,399 maintain order well I think what happens 745 00:31:37,319 --> 00:31:44,028 is typically the adjudicator at the very 746 00:31:41,398 --> 00:31:48,209 outset of the proceedings when outlining 747 00:31:44,028 --> 00:31:50,398 what the order of proceedings is and but 748 00:31:48,210 --> 00:31:52,590 it will be and what is expected of the 749 00:31:50,398 --> 00:31:55,048 parties it might be important to simply 750 00:31:52,589 --> 00:32:00,888 point this out and judges often do this 751 00:31:55,048 --> 00:32:06,808 now I say that there is a certain I 752 00:32:00,888 --> 00:32:09,569 suppose a culture in certain courtrooms 753 00:32:06,808 --> 00:32:13,108 and in legal settings where lawyers can 754 00:32:09,569 --> 00:32:15,509 be very very aggressive and so this 755 00:32:13,108 --> 00:32:17,668 could be a big problem but I have more 756 00:32:15,509 --> 00:32:22,618 often seen in my experience from 757 00:32:17,669 --> 00:32:25,019 non-lawyers who simply don't know that 758 00:32:22,618 --> 00:32:27,269 it's inappropriate to become belligerent 759 00:32:25,019 --> 00:32:29,638 and badgering but then again you know 760 00:32:27,269 --> 00:32:32,009 there are lawyers who think this is a 761 00:32:29,638 --> 00:32:34,378 way to impress people and this is an 762 00:32:32,009 --> 00:32:37,259 opportunity for them to put on some kind 763 00:32:34,378 --> 00:32:38,558 of show so I think it's important at the 764 00:32:37,259 --> 00:32:40,210 outset 765 00:32:38,558 --> 00:32:42,849 for the adjudicator to explain to the 766 00:32:40,210 --> 00:32:46,210 parties that decorum will be maintained 767 00:32:42,849 --> 00:32:48,689 at all times and should one of the 768 00:32:46,210 --> 00:32:51,519 advisors for instance be incapable of 769 00:32:48,690 --> 00:32:54,940 conducting themselves in a professional 770 00:32:51,519 --> 00:33:00,429 way and while adversarial still with 771 00:32:54,940 --> 00:33:02,798 some degree of decorum and patience then 772 00:33:00,429 --> 00:33:05,798 they may have to be replaced because 773 00:33:02,798 --> 00:33:06,730 everything will have to be done in an 774 00:33:05,798 --> 00:33:09,190 orderly fashion 775 00:33:06,730 --> 00:33:10,360 judge Shaw I'm I'm curious cuz I've 776 00:33:09,190 --> 00:33:12,308 known you for a little while now and 777 00:33:10,359 --> 00:33:14,109 you're the kind of guy where you walk 778 00:33:12,308 --> 00:33:16,089 into a room and I think people behave 779 00:33:14,109 --> 00:33:22,298 just because judge Shaw has walked into 780 00:33:16,089 --> 00:33:25,178 the room was it always like that or or 781 00:33:22,298 --> 00:33:28,179 you know do you feel like over the years 782 00:33:25,179 --> 00:33:29,919 your ability to sort of maintain order 783 00:33:28,179 --> 00:33:33,490 in a courtroom but that was there was a 784 00:33:29,919 --> 00:33:35,288 gravitas and a style of maintaining 785 00:33:33,490 --> 00:33:36,999 order that you sort of developed and if 786 00:33:35,288 --> 00:33:39,069 the answer is yes how do you think you 787 00:33:36,999 --> 00:33:40,778 changed what what are the things you 788 00:33:39,069 --> 00:33:43,148 learned over twenty or thirty years that 789 00:33:40,778 --> 00:33:46,980 you might impart to someone who's doing 790 00:33:43,148 --> 00:33:50,498 this for the first time Aaron I think 791 00:33:46,980 --> 00:33:53,019 it's a combination of things but mostly 792 00:33:50,499 --> 00:33:56,798 what I learned is to be patient and the 793 00:33:53,019 --> 00:33:59,679 recognition that as an adjudicator my 794 00:33:56,798 --> 00:34:02,408 job was not only to be fair impartial 795 00:33:59,679 --> 00:34:05,590 but for the parties to feel that they've 796 00:34:02,409 --> 00:34:08,230 been treated fairly and impartial and so 797 00:34:05,589 --> 00:34:10,449 that I tried to be very patient with 798 00:34:08,230 --> 00:34:12,338 them but but sometimes you know the 799 00:34:10,449 --> 00:34:15,549 quorum can be a difficult thing for 800 00:34:12,338 --> 00:34:18,549 people particularly under very stressful 801 00:34:15,550 --> 00:34:20,740 circumstances where emotions or engine 802 00:34:18,550 --> 00:34:23,560 it's not like you have two businesses 803 00:34:20,739 --> 00:34:25,148 that have a conflict if someone feels 804 00:34:23,559 --> 00:34:29,588 that they have been personally wronged 805 00:34:25,148 --> 00:34:32,289 or mistreated then that those emotions 806 00:34:29,588 --> 00:34:34,358 can be right on the surface so I found 807 00:34:32,289 --> 00:34:38,500 that a number of things when we talked 808 00:34:34,358 --> 00:34:40,148 about this whole idea of decorum you 809 00:34:38,500 --> 00:34:42,429 have to even think about the physical 810 00:34:40,148 --> 00:34:45,489 space that you're in and how it's set up 811 00:34:42,429 --> 00:34:47,230 and arranged such that it gives the 812 00:34:45,489 --> 00:34:50,019 appearance of a certain degree of 813 00:34:47,230 --> 00:34:52,108 formality in the proceedings but I think 814 00:34:50,019 --> 00:34:54,929 the main thing 815 00:34:52,108 --> 00:34:57,900 that I've learned and what adjudicators 816 00:34:54,929 --> 00:34:59,818 need to practice is to simply be patient 817 00:34:57,900 --> 00:35:02,849 with people explaining the rules clearly 818 00:34:59,818 --> 00:35:06,150 to people and following those rules and 819 00:35:02,849 --> 00:35:07,890 being patient with yeah I think a lot of 820 00:35:06,150 --> 00:35:09,838 that certainly resonates and I'll just 821 00:35:07,889 --> 00:35:12,058 make three points and I completely agree 822 00:35:09,838 --> 00:35:13,619 with everything you said but the first I 823 00:35:12,059 --> 00:35:16,470 think you're right that the recognition 824 00:35:13,619 --> 00:35:18,210 that this could be the worst day of both 825 00:35:16,469 --> 00:35:21,419 the complainant and the respondents life 826 00:35:18,210 --> 00:35:23,249 and something they've never kind of been 827 00:35:21,420 --> 00:35:24,630 involved in so the recognition of that 828 00:35:23,248 --> 00:35:28,169 the compassion of that I think is 829 00:35:24,630 --> 00:35:30,420 extremely important the second is I 830 00:35:28,170 --> 00:35:32,579 think in the bench you you have the 831 00:35:30,420 --> 00:35:34,349 trappings of a courtroom to help you out 832 00:35:32,579 --> 00:35:36,839 and here you might just be in a 833 00:35:34,349 --> 00:35:38,430 conference room banquet hall or 834 00:35:36,838 --> 00:35:40,619 something like that so doing something 835 00:35:38,429 --> 00:35:43,048 to to kind of lend the degree of 836 00:35:40,619 --> 00:35:45,298 formality I think could absolutely be 837 00:35:43,048 --> 00:35:47,699 there to help you and last point um I 838 00:35:45,298 --> 00:35:49,980 mean to come from a pure legal 839 00:35:47,699 --> 00:35:53,639 standpoint the fact that someone feels 840 00:35:49,980 --> 00:35:54,989 heard and is able to to feel like the 841 00:35:53,639 --> 00:35:56,940 process kind of worked for them 842 00:35:54,989 --> 00:35:59,220 regardless of the outcome I think very 843 00:35:56,940 --> 00:36:01,710 frankly it could help lessen the appeals 844 00:35:59,219 --> 00:36:02,998 and litigation that could come versus if 845 00:36:01,710 --> 00:36:04,798 someone just feels like the school 846 00:36:02,998 --> 00:36:07,288 didn't listen you're railroaded dumber 847 00:36:04,798 --> 00:36:09,358 or something so there are all great 848 00:36:07,289 --> 00:36:10,950 points and I just wanna tell well I 849 00:36:09,358 --> 00:36:13,578 couldn't certainly tell you guys from 850 00:36:10,949 --> 00:36:16,159 the experience when when I first started 851 00:36:13,579 --> 00:36:18,989 they were in the process of 852 00:36:16,159 --> 00:36:21,328 rehabilitating the civil courts building 853 00:36:18,989 --> 00:36:24,239 downtown and some of our courtrooms were 854 00:36:21,329 --> 00:36:27,089 in the process of being reconfigured and 855 00:36:24,239 --> 00:36:30,749 for those and and and they were shifting 856 00:36:27,088 --> 00:36:32,748 personnel around so I did work in rooms 857 00:36:30,748 --> 00:36:35,699 from time to time that were not 858 00:36:32,748 --> 00:36:38,278 appropriately set up and where we did 859 00:36:35,699 --> 00:36:41,969 not have security and I can tell you 860 00:36:38,278 --> 00:36:45,480 that there was a very clear difference 861 00:36:41,969 --> 00:36:47,988 in behavior in the parties in those kind 862 00:36:45,480 --> 00:36:50,369 of setups where we didn't have it a 863 00:36:47,989 --> 00:36:53,699 formal set up and we did not have 864 00:36:50,369 --> 00:36:55,588 security interest very interesting very 865 00:36:53,699 --> 00:36:57,719 interesting and varied I just had very 866 00:36:55,588 --> 00:36:59,369 quickly along with security might also 867 00:36:57,719 --> 00:37:01,379 want to think about mental health 868 00:36:59,369 --> 00:37:03,088 resources and Student Affairs resources 869 00:37:01,380 --> 00:37:05,068 and all those things out for these 870 00:37:03,088 --> 00:37:05,849 situations but let's move on to a 871 00:37:05,068 --> 00:37:09,029 different 872 00:37:05,849 --> 00:37:11,519 cross-examination so what happens 873 00:37:09,030 --> 00:37:13,860 according to regulations if someone does 874 00:37:11,519 --> 00:37:18,509 not submit to cross-examination or 875 00:37:13,860 --> 00:37:21,120 refuses to so if that's the case the 876 00:37:18,510 --> 00:37:23,280 adjudicator cannot rely on any statement 877 00:37:21,119 --> 00:37:25,139 of that party or witness in reaching the 878 00:37:23,280 --> 00:37:26,490 determination responsibility there's a 879 00:37:25,139 --> 00:37:28,799 lot to unpack there and we're going to 880 00:37:26,489 --> 00:37:33,509 go through it in a few slides coming up 881 00:37:28,800 --> 00:37:35,960 next the one caveat to be aware of is 882 00:37:33,510 --> 00:37:38,090 the adjudicator can't draw an inference 883 00:37:35,960 --> 00:37:40,500 for the determination regarding 884 00:37:38,090 --> 00:37:42,930 responsibility based solely on a party 885 00:37:40,500 --> 00:37:44,880 or witnesses absence so just because a 886 00:37:42,929 --> 00:37:47,819 complainant or respondent does not show 887 00:37:44,880 --> 00:37:53,160 up you can't take that fact into account 888 00:37:47,820 --> 00:37:56,850 as you're reaching your determination so 889 00:37:53,159 --> 00:37:58,889 first question judge very basically for 890 00:37:56,849 --> 00:38:00,719 the purpose of these title 9 proceedings 891 00:37:58,889 --> 00:38:02,179 what does it mean to submit to 892 00:38:00,719 --> 00:38:05,009 cross-examination 893 00:38:02,179 --> 00:38:07,739 submit to cross-examination is simply 894 00:38:05,010 --> 00:38:11,430 that the person answered questions by 895 00:38:07,739 --> 00:38:13,500 the opposing party absolutely and 896 00:38:11,429 --> 00:38:15,329 there's the title 9 regulation state the 897 00:38:13,500 --> 00:38:16,889 only questions that you are able to 898 00:38:15,329 --> 00:38:21,539 answer our questions that are relevant 899 00:38:16,889 --> 00:38:26,029 so I think right and and just before we 900 00:38:21,539 --> 00:38:31,409 get into how the rules applied does this 901 00:38:26,030 --> 00:38:33,660 exclusion of statement rule apply when a 902 00:38:31,409 --> 00:38:35,609 part of your witness does not answer 903 00:38:33,659 --> 00:38:38,819 questions by the adjudicator by the 904 00:38:35,610 --> 00:38:42,930 decision no because the adjudicator is 905 00:38:38,820 --> 00:38:46,530 not cross-examining delays that's right 906 00:38:42,929 --> 00:38:50,909 simple is that oh you gotta give judge 907 00:38:46,530 --> 00:38:54,210 sho harder questions I mean not address 908 00:38:50,909 --> 00:38:56,269 with the simple stuff next one's a tough 909 00:38:54,210 --> 00:38:56,269 one 910 00:38:56,599 --> 00:39:00,299 this is an interesting one and this is a 911 00:38:58,769 --> 00:39:05,070 this is going to be a very new concept 912 00:39:00,300 --> 00:39:07,710 for for a lot of decision makers but the 913 00:39:05,070 --> 00:39:09,510 rule on the exclusion of statements is 914 00:39:07,710 --> 00:39:13,320 predicated on what a statement is Oh 915 00:39:09,510 --> 00:39:16,070 judge ah what's the statement well as we 916 00:39:13,320 --> 00:39:19,440 see here statement has Ordinary meaning 917 00:39:16,070 --> 00:39:21,630 but doesn't include evidence 918 00:39:19,440 --> 00:39:23,670 videos that did not constitute a 919 00:39:21,630 --> 00:39:25,980 person's intent to make factual 920 00:39:23,670 --> 00:39:28,230 assertions or to the extent that such 921 00:39:25,980 --> 00:39:30,568 evidence does not contain a person 922 00:39:28,230 --> 00:39:35,159 statement so a statement would be a 923 00:39:30,568 --> 00:39:38,550 power statement by that party so police 924 00:39:35,159 --> 00:39:41,039 reports sane reports medical reports 925 00:39:38,550 --> 00:39:43,050 other documents and records may not be 926 00:39:41,039 --> 00:39:45,659 relied upon to the extent they contain 927 00:39:43,050 --> 00:39:50,700 statements of a party or witness who has 928 00:39:45,659 --> 00:39:53,250 not submitted to cross examination yeah 929 00:39:50,699 --> 00:39:55,828 no absolutely and let me let me just 930 00:39:53,250 --> 00:39:59,789 follow up with that 931 00:39:55,829 --> 00:40:03,050 how would it how would an individual or 932 00:39:59,789 --> 00:40:05,730 a decision maker make a determination 933 00:40:03,050 --> 00:40:08,339 realistically if if they can't rely on a 934 00:40:05,730 --> 00:40:10,588 person's statements but there is video 935 00:40:08,338 --> 00:40:12,659 evidence or something that's not a state 936 00:40:10,588 --> 00:40:15,858 how would you as a decision-maker 937 00:40:12,659 --> 00:40:18,389 mentally kind of be able to segregate 938 00:40:15,858 --> 00:40:22,019 statements from from video evidence or 939 00:40:18,389 --> 00:40:24,358 things that you can consume right so if 940 00:40:22,019 --> 00:40:26,420 if a witness does not submit the 941 00:40:24,358 --> 00:40:30,000 cross-examination then you cannot 942 00:40:26,420 --> 00:40:33,269 consider their statements but video 943 00:40:30,000 --> 00:40:36,989 evidence that is video evidence does not 944 00:40:33,269 --> 00:40:39,449 that does not include a statement is 945 00:40:36,989 --> 00:40:41,848 perfectly fine and I assume did any 946 00:40:39,449 --> 00:40:44,669 other evidence regarding that witness 947 00:40:41,849 --> 00:40:46,109 would be fine but simply that their 948 00:40:44,670 --> 00:40:48,380 statements would be excluded because 949 00:40:46,108 --> 00:40:51,389 they did not submit to cross examination 950 00:40:48,380 --> 00:40:53,160 whereby the opposing party would be able 951 00:40:51,389 --> 00:40:55,789 to test the credibility of those 952 00:40:53,159 --> 00:40:58,559 statements so it just makes sense and 953 00:40:55,789 --> 00:41:00,389 this this seems to me to be one of those 954 00:40:58,559 --> 00:41:02,369 situations where adjudicators are 955 00:41:00,389 --> 00:41:04,078 potentially being asked to unring the 956 00:41:02,369 --> 00:41:05,730 bell right maybe you've heard those 957 00:41:04,079 --> 00:41:08,130 statements you watch the video and now 958 00:41:05,730 --> 00:41:10,079 you can't consider them you know 959 00:41:08,130 --> 00:41:12,180 following up on Scott's question 960 00:41:10,079 --> 00:41:15,450 I'm just curious just Shaw it has always 961 00:41:12,179 --> 00:41:18,029 struck me that as an adjudicator that 962 00:41:15,449 --> 00:41:20,219 notion that you have to set aside things 963 00:41:18,030 --> 00:41:22,589 that you may know you have to unring 964 00:41:20,219 --> 00:41:24,539 bells that you have heard and run has 965 00:41:22,588 --> 00:41:26,909 got it's got to be really hard in 966 00:41:24,539 --> 00:41:28,619 practice to do I would think even for 967 00:41:26,909 --> 00:41:31,859 someone who's a seasoned adjudicator 968 00:41:28,619 --> 00:41:35,490 like yourself any tips on 969 00:41:31,860 --> 00:41:38,160 as to how folks can try to do that well 970 00:41:35,489 --> 00:41:41,699 I think we have to go back what I talked 971 00:41:38,159 --> 00:41:44,579 about before Aaron about keeping an open 972 00:41:41,699 --> 00:41:47,009 mind and one keeps an open mind 973 00:41:44,579 --> 00:41:49,799 throughout the proceedings until 974 00:41:47,010 --> 00:41:53,760 everything has been seen in hurt and as 975 00:41:49,800 --> 00:41:56,340 the adjudicator is considering what if 976 00:41:53,760 --> 00:41:59,400 anything is being regarded as credible 977 00:41:56,340 --> 00:42:01,800 or not credible then you know the 978 00:41:59,400 --> 00:42:04,650 adjudicator has to be very conscious of 979 00:42:01,800 --> 00:42:07,350 the fact that certain items then cannot 980 00:42:04,650 --> 00:42:10,559 be considered whatsoever in the ultimate 981 00:42:07,349 --> 00:42:12,569 decision so did you the Judah cater you 982 00:42:10,559 --> 00:42:15,000 know it's it will not be an easy job I 983 00:42:12,570 --> 00:42:17,130 can tell you from my own experience you 984 00:42:15,000 --> 00:42:19,889 know this is why often times judges much 985 00:42:17,130 --> 00:42:22,320 prefer to have jury trials because the 986 00:42:19,889 --> 00:42:24,659 jury has in many ways the harder job 987 00:42:22,320 --> 00:42:26,550 which the adjudicator will have of 988 00:42:24,659 --> 00:42:29,639 determining credibility and the weight 989 00:42:26,550 --> 00:42:32,190 and value of the evidence judge often 990 00:42:29,639 --> 00:42:34,589 times in a in a jury trial you're just 991 00:42:32,190 --> 00:42:36,900 calling balls and strikes and in many 992 00:42:34,590 --> 00:42:38,460 ways that's that's an easier job but for 993 00:42:36,900 --> 00:42:40,500 adjudicators to have to determine 994 00:42:38,460 --> 00:42:44,269 credibility and weight of the evidence 995 00:42:40,500 --> 00:42:47,400 is a difficult job and so they 996 00:42:44,269 --> 00:42:49,050 constantly remind themselves to keep an 997 00:42:47,400 --> 00:42:51,300 open mind and what evidence am i 998 00:42:49,050 --> 00:42:52,830 considering and let evidence am I not 999 00:42:51,300 --> 00:42:55,740 allowed to consider in making my 1000 00:42:52,829 --> 00:42:58,500 ultimate determination so next next for 1001 00:42:55,739 --> 00:43:00,569 you judge shot just maybe maybe we 1002 00:42:58,500 --> 00:43:02,219 talked about this but but in these 1003 00:43:00,570 --> 00:43:04,530 proceedings canna decision-maker ask 1004 00:43:02,219 --> 00:43:07,500 questions and parties and witnesses yes 1005 00:43:04,530 --> 00:43:09,330 and of course that makes sense when I 1006 00:43:07,500 --> 00:43:11,250 was a judge in bench trials there are 1007 00:43:09,329 --> 00:43:15,809 often things that I had some concerns 1008 00:43:11,250 --> 00:43:17,880 about or no once the lawyers or advisers 1009 00:43:15,809 --> 00:43:22,739 ask their question if there is something 1010 00:43:17,880 --> 00:43:26,369 that before the witness leaves or is 1011 00:43:22,739 --> 00:43:28,859 concluded then perhaps the adjudicator 1012 00:43:26,369 --> 00:43:30,869 has a question that he or she wants to 1013 00:43:28,860 --> 00:43:33,059 know the answer to this material to the 1014 00:43:30,869 --> 00:43:35,429 decision the end of the adjudicator is 1015 00:43:33,059 --> 00:43:36,809 it's a perfectly appropriate for the 1016 00:43:35,429 --> 00:43:41,909 adjudicator to ask that question and 1017 00:43:36,809 --> 00:43:44,489 should ask and and to the extent and we 1018 00:43:41,909 --> 00:43:45,719 talked about earlier relevance one of 1019 00:43:44,489 --> 00:43:48,899 the concepts the Department 1020 00:43:45,719 --> 00:43:51,029 is that repetition of questions so ask 1021 00:43:48,900 --> 00:43:53,369 me question a second time even if the 1022 00:43:51,030 --> 00:43:55,050 first one was relevant second one is 1023 00:43:53,369 --> 00:43:57,030 considered irrelevant it was already 1024 00:43:55,050 --> 00:43:59,880 asked so to the extent that a decision 1025 00:43:57,030 --> 00:44:02,580 maker asks a question and it's repeated 1026 00:43:59,880 --> 00:44:07,530 by attorneys on cross-examination or 1027 00:44:02,579 --> 00:44:09,358 direct exam whatever examination that 1028 00:44:07,530 --> 00:44:11,310 might be irrelevant and something for a 1029 00:44:09,358 --> 00:44:13,858 decision maker and presiding officer to 1030 00:44:11,309 --> 00:44:19,710 be aware of so the next question for you 1031 00:44:13,858 --> 00:44:23,759 judge Shaw is about the what happens 1032 00:44:19,710 --> 00:44:26,039 when and advisor is is not there so a 1033 00:44:23,760 --> 00:44:27,840 party has the choice of an advisor if 1034 00:44:26,039 --> 00:44:30,019 that person does not choose an advisor 1035 00:44:27,840 --> 00:44:33,150 and the institution has to provide one 1036 00:44:30,019 --> 00:44:37,469 when is an advisors cross-examination on 1037 00:44:33,150 --> 00:44:40,230 behalf of that party well you know this 1038 00:44:37,469 --> 00:44:44,399 I think the purpose of this is to assure 1039 00:44:40,230 --> 00:44:47,010 that the party is satisfied that their 1040 00:44:44,400 --> 00:44:50,970 advisor has properly represented it and 1041 00:44:47,010 --> 00:44:53,760 so that if the party has a relevant 1042 00:44:50,969 --> 00:44:56,098 question and they've asked their advisor 1043 00:44:53,760 --> 00:44:58,290 to ask that question and the advisor 1044 00:44:56,099 --> 00:45:01,019 refuses to do so then the 1045 00:44:58,289 --> 00:45:02,670 cross-examination is not steps and so 1046 00:45:01,019 --> 00:45:04,800 this should be brought to the 1047 00:45:02,670 --> 00:45:07,230 adjudicators attention but I would have 1048 00:45:04,800 --> 00:45:10,440 to think that this would be a rare 1049 00:45:07,230 --> 00:45:12,570 circumstance where there is a relevant 1050 00:45:10,440 --> 00:45:15,000 question you know there may be some 1051 00:45:12,570 --> 00:45:18,330 conflict perhaps between the advisor and 1052 00:45:15,000 --> 00:45:23,460 the party the adviser says well it's not 1053 00:45:18,329 --> 00:45:24,598 relevant that maybe this person cheated 1054 00:45:23,460 --> 00:45:27,000 at marbles when they were in 1055 00:45:24,599 --> 00:45:28,260 kindergarten you know it's not going to 1056 00:45:27,000 --> 00:45:30,960 be something important to the 1057 00:45:28,260 --> 00:45:35,339 adjudicator so you know the further away 1058 00:45:30,960 --> 00:45:37,949 you get from the conduct complained of 1059 00:45:35,338 --> 00:45:40,170 involving the parties involved in this 1060 00:45:37,949 --> 00:45:43,319 particular complaint then it may not be 1061 00:45:40,170 --> 00:45:45,150 relevant and just just one thing going 1062 00:45:43,320 --> 00:45:47,760 on that is it's a fairly low standard 1063 00:45:45,150 --> 00:45:50,010 that the preamble is out cross 1064 00:45:47,760 --> 00:45:53,609 examination to be satisfied does not 1065 00:45:50,010 --> 00:45:55,700 require any advanced legal training to 1066 00:45:53,608 --> 00:45:58,069 do that institutions are thinking about 1067 00:45:55,699 --> 00:46:01,069 advisors to appoint they should keep 1068 00:45:58,070 --> 00:46:01,070 yeah 1069 00:46:01,710 --> 00:46:09,940 great so moving along so can a heart so 1070 00:46:07,030 --> 00:46:13,720 in the situation where a party doesn't 1071 00:46:09,940 --> 00:46:15,250 appear can a party's advisor still 1072 00:46:13,719 --> 00:46:17,859 appear and conduct cross-examination 1073 00:46:15,250 --> 00:46:21,250 even without their party yes yes and 1074 00:46:17,860 --> 00:46:23,680 that makes sense you know I can envision 1075 00:46:21,250 --> 00:46:28,269 circumstances where a party may not 1076 00:46:23,679 --> 00:46:31,449 appear but yet still the testimony of 1077 00:46:28,269 --> 00:46:34,989 the opponent can be tested by the 1078 00:46:31,449 --> 00:46:37,179 adviser so judge file last question here 1079 00:46:34,989 --> 00:46:39,549 before I give you a little break select 1080 00:46:37,179 --> 00:46:42,879 let's think of a situation where a party 1081 00:46:39,550 --> 00:46:47,019 complainant or respondent doesn't appear 1082 00:46:42,880 --> 00:46:49,480 but that person had recounted exactly 1083 00:46:47,019 --> 00:46:51,699 what happened at issue to a friend or 1084 00:46:49,480 --> 00:46:54,130 family member minutes after the incident 1085 00:46:51,699 --> 00:46:56,259 took place and that friend or family 1086 00:46:54,130 --> 00:46:58,960 member is more than willing to come and 1087 00:46:56,260 --> 00:47:02,530 provide testimony for exactly what they 1088 00:46:58,960 --> 00:47:04,900 were told by the respondent complaint is 1089 00:47:02,530 --> 00:47:07,630 that allowed under the rules no it's not 1090 00:47:04,900 --> 00:47:10,030 allowed under the rules Scott and that's 1091 00:47:07,630 --> 00:47:11,559 basically a rule of fairness if the 1092 00:47:10,030 --> 00:47:14,560 party did not submit to 1093 00:47:11,559 --> 00:47:16,150 cross-examination about the validity of 1094 00:47:14,559 --> 00:47:17,920 these statements and the truthfulness of 1095 00:47:16,150 --> 00:47:19,539 these statements and it simply would be 1096 00:47:17,920 --> 00:47:22,869 unfair to have a friend or a family 1097 00:47:19,539 --> 00:47:28,409 member come in and submit this for 1098 00:47:22,869 --> 00:47:31,119 evidence great thank you to Shawn yeah 1099 00:47:28,409 --> 00:47:34,509 so let's let's take it now into into 1100 00:47:31,119 --> 00:47:36,789 relevance and we introduced the concept 1101 00:47:34,510 --> 00:47:38,620 at the beginning with a few key concepts 1102 00:47:36,789 --> 00:47:40,480 and we went over the basic definitions 1103 00:47:38,619 --> 00:47:42,989 but we're gonna let's dive a little bit 1104 00:47:40,480 --> 00:47:46,869 more into into exactly what that means 1105 00:47:42,989 --> 00:47:48,099 so we forgot to cross-examination you 1106 00:47:46,869 --> 00:47:50,429 mention earlier only relevant 1107 00:47:48,099 --> 00:47:52,239 cross-examination and other questions 1108 00:47:50,429 --> 00:47:54,429 including those challenged to 1109 00:47:52,239 --> 00:47:57,219 credibility may be asked of a party or 1110 00:47:54,429 --> 00:47:59,230 witness so in terms of questions that 1111 00:47:57,219 --> 00:48:01,239 can or cannot be answered the one thing 1112 00:47:59,230 --> 00:48:06,219 to remember is is it relevant or is it 1113 00:48:01,239 --> 00:48:08,769 not a new interesting part of the rule 1114 00:48:06,219 --> 00:48:11,889 and one that that really presiding 1115 00:48:08,769 --> 00:48:13,690 officers need to understand depth and 1116 00:48:11,889 --> 00:48:15,609 we'll get judge Shaw's Apennines on this 1117 00:48:13,690 --> 00:48:17,500 is that before a party or witness 1118 00:48:15,610 --> 00:48:20,170 answers cross-examination or other 1119 00:48:17,500 --> 00:48:22,329 another question the adjudicator the 1120 00:48:20,170 --> 00:48:26,760 presenting officer must determine 1121 00:48:22,329 --> 00:48:29,319 whether the question is relevant and 1122 00:48:26,760 --> 00:48:39,580 explain any decision to exclude a 1123 00:48:29,320 --> 00:48:44,500 question is not relevant the weight on 1124 00:48:39,579 --> 00:48:47,079 that slide come in all right 1125 00:48:44,500 --> 00:48:49,900 so first well the one more thing so 1126 00:48:47,079 --> 00:48:52,150 questions and evidence about the 1127 00:48:49,900 --> 00:48:55,180 complainants sexual predisposition or 1128 00:48:52,150 --> 00:48:57,099 prior sexual behavior so here this is 1129 00:48:55,179 --> 00:48:58,839 for those familiar with legal concepts 1130 00:48:57,099 --> 00:49:01,269 this is this is a kind of rape shield 1131 00:48:58,840 --> 00:49:03,940 protection the rules say that those 1132 00:49:01,269 --> 00:49:07,690 those concepts are not relevant with two 1133 00:49:03,940 --> 00:49:09,159 exceptions so the first exception is the 1134 00:49:07,690 --> 00:49:11,050 questions or evidence about a 1135 00:49:09,159 --> 00:49:13,149 complainants sexual predisposition or 1136 00:49:11,050 --> 00:49:14,769 prior sexual behavior are offered to 1137 00:49:13,150 --> 00:49:16,420 prove that someone other than the 1138 00:49:14,769 --> 00:49:19,739 respondent committed the alleged condom 1139 00:49:16,420 --> 00:49:22,119 and second such questions are evidence 1140 00:49:19,739 --> 00:49:24,429 concerns specific incidents of the 1141 00:49:22,119 --> 00:49:27,069 complainants prior sexual behavior with 1142 00:49:24,429 --> 00:49:30,419 respect to the respondent and are 1143 00:49:27,070 --> 00:49:32,740 offered to prove consent so these are 1144 00:49:30,420 --> 00:49:37,329 concepts that decision makers need to be 1145 00:49:32,739 --> 00:49:38,769 aware of should they come up my 1146 00:49:37,329 --> 00:49:44,549 experience I wasn't too often but 1147 00:49:38,769 --> 00:49:46,599 they're they're very kind of nuance so 1148 00:49:44,550 --> 00:49:48,610 judge thought we mentioned one of the 1149 00:49:46,599 --> 00:49:52,989 new things for a presiding officer is to 1150 00:49:48,610 --> 00:49:55,599 make a relevance determination effort so 1151 00:49:52,989 --> 00:49:56,889 first can you explain what's required of 1152 00:49:55,599 --> 00:49:59,380 a decision-maker during the 1153 00:49:56,889 --> 00:50:01,960 determination and also just based on 1154 00:49:59,380 --> 00:50:04,809 your experience kind of handling these 1155 00:50:01,960 --> 00:50:07,230 in the courtroom but some advice or best 1156 00:50:04,809 --> 00:50:10,380 practices you can give for educators 1157 00:50:07,230 --> 00:50:14,230 well this is a very interesting 1158 00:50:10,380 --> 00:50:17,530 requirement because in a courtroom the 1159 00:50:14,230 --> 00:50:20,740 judge is only required to give 1160 00:50:17,530 --> 00:50:25,480 explanations went first of all there has 1161 00:50:20,739 --> 00:50:27,419 to be an objection and often then the 1162 00:50:25,480 --> 00:50:31,440 court simply says objection sustained 1163 00:50:27,420 --> 00:50:36,088 and doesn't even say why so this is a 1164 00:50:31,440 --> 00:50:40,048 very interesting requirement I think for 1165 00:50:36,088 --> 00:50:43,619 most jurors the the idea is when an 1166 00:50:40,048 --> 00:50:45,869 explanation is given is that the shorter 1167 00:50:43,619 --> 00:50:48,630 the explanation the better because it 1168 00:50:45,869 --> 00:50:53,099 does not invite argument by the other 1169 00:50:48,630 --> 00:50:55,769 side when I looked at this whole issue 1170 00:50:53,099 --> 00:50:59,130 girl I thought if it probably fit within 1171 00:50:55,769 --> 00:51:02,099 the whole concept here of badgering the 1172 00:50:59,130 --> 00:51:05,030 witness or as you sets that under rape 1173 00:51:02,099 --> 00:51:08,490 shield laws that prevent the kind of 1174 00:51:05,030 --> 00:51:12,450 character assassination based upon some 1175 00:51:08,489 --> 00:51:17,068 allegation of provocative conduct or 1176 00:51:12,449 --> 00:51:20,159 promiscuous panda in general but at any 1177 00:51:17,068 --> 00:51:24,869 rate I think that it should be enough 1178 00:51:20,159 --> 00:51:28,980 for the adjudicator to simply either say 1179 00:51:24,869 --> 00:51:32,519 that the evidence is relevant and and 1180 00:51:28,980 --> 00:51:35,760 again I would probably err on the side 1181 00:51:32,519 --> 00:51:38,539 of letting evidence in unless it is 1182 00:51:35,760 --> 00:51:42,000 totally and completely off the wall 1183 00:51:38,539 --> 00:51:43,980 irrelevant because I think again you 1184 00:51:42,000 --> 00:51:46,139 know you want to give the parties the 1185 00:51:43,980 --> 00:51:48,719 feeling that they have been fully heard 1186 00:51:46,139 --> 00:51:51,539 but if something is completely 1187 00:51:48,719 --> 00:51:54,719 irrelevant then I think it's the duty of 1188 00:51:51,539 --> 00:51:57,029 the adjudicator to say that the evidence 1189 00:51:54,719 --> 00:51:59,909 is not probative of any material fact 1190 00:51:57,030 --> 00:52:02,130 leave it at that I think that that's 1191 00:51:59,909 --> 00:52:04,828 that's a perfect point and we provided 1192 00:52:02,130 --> 00:52:07,108 the citation to the preamble that lists 1193 00:52:04,829 --> 00:52:09,450 exactly those words this is what the 1194 00:52:07,108 --> 00:52:12,509 department says it could be a sufficient 1195 00:52:09,449 --> 00:52:14,429 explanation so exactly is Judge shall 1196 00:52:12,510 --> 00:52:15,930 explain so it's not probed with any 1197 00:52:14,429 --> 00:52:17,519 material fact inserting the allegations 1198 00:52:15,929 --> 00:52:19,980 that's what the department said 1199 00:52:17,519 --> 00:52:21,179 sufficient so judge Shaw and the 1200 00:52:19,980 --> 00:52:25,019 department both think that's sufficient 1201 00:52:21,179 --> 00:52:26,699 and yeah consider it 1202 00:52:25,019 --> 00:52:29,608 yeah and I'll just add if you're an 1203 00:52:26,699 --> 00:52:31,769 adjudicator a potential adjudicator and 1204 00:52:29,608 --> 00:52:33,449 you're watching this and that didn't 1205 00:52:31,769 --> 00:52:35,579 make sense rewind it and watch it again 1206 00:52:33,449 --> 00:52:37,798 because the idea here is both the 1207 00:52:35,579 --> 00:52:39,390 department and judge are suggesting that 1208 00:52:37,798 --> 00:52:42,960 a simple approach 1209 00:52:39,389 --> 00:52:46,048 is not only allowed but appropriate and 1210 00:52:42,960 --> 00:52:48,630 in addition and I mean the natives could 1211 00:52:46,048 --> 00:52:50,869 simply derail the entire process you'd 1212 00:52:48,630 --> 00:52:52,829 be gone on and on because at each 1213 00:52:50,869 --> 00:52:55,019 cross-examination question particularly 1214 00:52:52,829 --> 00:52:58,528 in the adjudicator must make a 1215 00:52:55,018 --> 00:53:02,009 determination so if there is a lengthy 1216 00:52:58,528 --> 00:53:04,650 cross-examination you can exponentially 1217 00:53:02,010 --> 00:53:06,960 expand that cross-examination by giving 1218 00:53:04,650 --> 00:53:10,470 these lengthy explanations and there's 1219 00:53:06,960 --> 00:53:12,028 no purpose for doing great but that's a 1220 00:53:10,469 --> 00:53:14,189 great point and that leads I think 1221 00:53:12,028 --> 00:53:14,670 nicely into the next question so judge 1222 00:53:14,190 --> 00:53:17,670 Shaw 1223 00:53:14,670 --> 00:53:21,269 I'd assume an advisor that just had 1224 00:53:17,670 --> 00:53:24,180 their question deemed irrelevant by an 1225 00:53:21,268 --> 00:53:27,328 adjudicator presiding officer would want 1226 00:53:24,179 --> 00:53:30,480 to eject so the question here is can a 1227 00:53:27,329 --> 00:53:34,859 school adopt a rule apply directly for 1228 00:53:30,480 --> 00:53:37,858 both parties always that gives or does 1229 00:53:34,858 --> 00:53:40,528 not give advisors the right to to kind 1230 00:53:37,858 --> 00:53:45,838 of have those relevant discussions after 1231 00:53:40,528 --> 00:53:48,778 decisions well as you said Scott and I 1232 00:53:45,838 --> 00:53:52,048 think this leads directly from what I 1233 00:53:48,778 --> 00:53:56,130 just said I think it would be best to 1234 00:53:52,048 --> 00:54:00,028 not invite arguments by the parties over 1235 00:53:56,130 --> 00:54:01,528 these relevance determinations and I can 1236 00:54:00,028 --> 00:54:03,420 tell you from experience that when you 1237 00:54:01,528 --> 00:54:04,920 invite these kinds of arguments and 1238 00:54:03,420 --> 00:54:08,818 discussions they can derail the entire 1239 00:54:04,920 --> 00:54:11,670 process and now I was reminded the other 1240 00:54:08,818 --> 00:54:13,710 day about a particular attorney who 1241 00:54:11,670 --> 00:54:16,200 wanted to who would never give up 1242 00:54:13,710 --> 00:54:17,789 argument and almost to the point where 1243 00:54:16,199 --> 00:54:21,288 I've wanted to hold the lawyer in 1244 00:54:17,789 --> 00:54:23,819 contempt the court for this so I think 1245 00:54:21,289 --> 00:54:27,269 you know perhaps there are circumstances 1246 00:54:23,818 --> 00:54:31,380 under which the adjudicator may want to 1247 00:54:27,268 --> 00:54:33,449 exercise some discretion and ask why you 1248 00:54:31,380 --> 00:54:35,490 know maybe the adjudicator is not you 1249 00:54:33,449 --> 00:54:37,828 know there are circumstances that I'm 1250 00:54:35,489 --> 00:54:39,959 not anticipating here but where the 1251 00:54:37,829 --> 00:54:41,400 adjudicator feels well maybe I'd like to 1252 00:54:39,960 --> 00:54:44,579 hear from you why do you believe this 1253 00:54:41,400 --> 00:54:48,088 Israel but I think in most instances it 1254 00:54:44,579 --> 00:54:49,890 would be counterproductive to allow 1255 00:54:48,088 --> 00:54:52,078 there to be argument and discussion 1256 00:54:49,889 --> 00:54:53,359 about each of the adjudicator 1257 00:54:52,079 --> 00:54:56,190 determination 1258 00:54:53,360 --> 00:54:57,780 wavern yeah that's right I think that's 1259 00:54:56,190 --> 00:55:00,300 a great point and end to that to that 1260 00:54:57,780 --> 00:55:02,040 point according to the preamble here if 1261 00:55:00,300 --> 00:55:04,440 a school makes the determination that 1262 00:55:02,039 --> 00:55:05,550 they do not want these arguments they're 1263 00:55:04,440 --> 00:55:07,860 permitted to build that into their 1264 00:55:05,550 --> 00:55:09,360 process so just as in addition to the 1265 00:55:07,860 --> 00:55:12,750 rules of decorum and the rules of the 1266 00:55:09,360 --> 00:55:14,519 oral proceedings just explain that will 1267 00:55:12,750 --> 00:55:17,429 make it that judicata makes 1268 00:55:14,519 --> 00:55:19,710 determination and that's final final 1269 00:55:17,429 --> 00:55:22,769 word yeah I think that is the better 1270 00:55:19,710 --> 00:55:25,949 choice but I would I would pair that 1271 00:55:22,769 --> 00:55:29,840 with the idea that the adjudicator 1272 00:55:25,949 --> 00:55:32,939 should be fairly patient and if there is 1273 00:55:29,840 --> 00:55:37,050 a question in the adjudicators mind 1274 00:55:32,940 --> 00:55:39,480 about is this potentially relevant then 1275 00:55:37,050 --> 00:55:42,539 there should be the tendency that listen 1276 00:55:39,480 --> 00:55:46,050 to it and reject yeah helpful caveats 1277 00:55:42,539 --> 00:55:48,630 absolutely so one question quickly on 1278 00:55:46,050 --> 00:55:50,220 credibility and I think it goes into 1279 00:55:48,630 --> 00:55:52,230 managing the live hearing that we talked 1280 00:55:50,219 --> 00:55:54,059 about and we're getting a little bit 1281 00:55:52,230 --> 00:55:55,010 ahead of ourselves because in the next 1282 00:55:54,059 --> 00:55:57,150 section we're going to talk about 1283 00:55:55,010 --> 00:56:01,410 specific types of evidence including 1284 00:55:57,150 --> 00:56:02,789 character evidence bad acts but because 1285 00:56:01,409 --> 00:56:05,279 we're talking about relevance and alive 1286 00:56:02,789 --> 00:56:07,440 hearing - they're talking to give us a 1287 00:56:05,280 --> 00:56:09,660 little preview of what what character 1288 00:56:07,440 --> 00:56:13,880 evidence and evidence of prior bad acts 1289 00:56:09,659 --> 00:56:16,710 is and and then explain and relevance 1290 00:56:13,880 --> 00:56:18,750 character evidence and relevant evidence 1291 00:56:16,710 --> 00:56:22,619 and prior bad acts and cross-examination 1292 00:56:18,750 --> 00:56:25,559 be excluded by a presiding officer yeah 1293 00:56:22,619 --> 00:56:28,440 I mean prior bad acts on 1294 00:56:25,559 --> 00:56:30,269 cross-examination should not there is no 1295 00:56:28,440 --> 00:56:35,130 blanket rule excluding them and 1296 00:56:30,269 --> 00:56:39,539 typically in court we discuss what's 1297 00:56:35,130 --> 00:56:42,170 called other similar incidents and so it 1298 00:56:39,539 --> 00:56:48,659 is certainly relevant the closer the 1299 00:56:42,170 --> 00:56:51,900 prior bad act is to be to the allegation 1300 00:56:48,659 --> 00:56:54,779 or the complaint under consideration to 1301 00:56:51,900 --> 00:56:57,570 the extent that it involves the same and 1302 00:56:54,780 --> 00:57:02,220 party or parties and that's going to be 1303 00:56:57,570 --> 00:57:06,120 relevant but the further you move away 1304 00:57:02,219 --> 00:57:06,838 from the act or conduct complained of 1305 00:57:06,119 --> 00:57:08,548 here 1306 00:57:06,838 --> 00:57:11,219 the further away you move from the 1307 00:57:08,548 --> 00:57:14,579 parties involved here the more likely 1308 00:57:11,219 --> 00:57:18,088 its to be irrelevant in court 1309 00:57:14,579 --> 00:57:20,278 proceedings that are often hearings held 1310 00:57:18,088 --> 00:57:22,858 ahead of time to make a determination as 1311 00:57:20,278 --> 00:57:25,528 to whether or not some bad conduct or 1312 00:57:22,858 --> 00:57:28,438 so-called other similar conduct is 1313 00:57:25,528 --> 00:57:30,659 relevant and I think that's what the 1314 00:57:28,438 --> 00:57:32,938 adjudicator has to consider so there is 1315 00:57:30,659 --> 00:57:35,789 no blanket rule excluding it and to the 1316 00:57:32,938 --> 00:57:37,078 extent that the conduct is similar to 1317 00:57:35,789 --> 00:57:38,640 the conduct complained of and 1318 00:57:37,079 --> 00:57:40,229 particularly if it involves the same 1319 00:57:38,639 --> 00:57:43,078 parties then that's going to be relevant 1320 00:57:40,228 --> 00:57:45,328 evidence and I think that's that's a 1321 00:57:43,079 --> 00:57:46,619 perfect point and we provided you that 1322 00:57:45,329 --> 00:57:48,959 the preamble site really just to 1323 00:57:46,619 --> 00:57:50,789 emphasize that the touchstone here 1324 00:57:48,958 --> 00:57:53,278 whatever you're thinking about types of 1325 00:57:50,789 --> 00:57:56,549 evidence is is it relevant or is it not 1326 00:57:53,278 --> 00:57:59,188 and then the last judge our leader had a 1327 00:57:56,548 --> 00:58:01,349 way for advice on weighing different 1328 00:57:59,188 --> 00:58:04,288 types of evidence but for the purpose of 1329 00:58:01,349 --> 00:58:06,989 this slide and and this point just want 1330 00:58:04,289 --> 00:58:12,089 to re-emphasize that if the evidence is 1331 00:58:06,989 --> 00:58:15,778 relevant then it comes in needs to be 1332 00:58:12,088 --> 00:58:19,318 considered all right so the burden of 1333 00:58:15,778 --> 00:58:22,708 proof so moving right along so the 1334 00:58:19,318 --> 00:58:25,998 burden of proof and the burden of 1335 00:58:22,708 --> 00:58:28,348 gathering evidence by regulation 1336 00:58:25,998 --> 00:58:32,338 evidence sufficient to reach a 1337 00:58:28,349 --> 00:58:34,669 determination is on an institution so 1338 00:58:32,338 --> 00:58:39,179 this means it's not up to the respondent 1339 00:58:34,668 --> 00:58:40,469 to prove that they're to prove anything 1340 00:58:39,179 --> 00:58:43,639 that for the complainant to prove 1341 00:58:40,469 --> 00:58:46,918 anything so the institution can't access 1342 00:58:43,639 --> 00:58:49,318 consider disclose or otherwise use a 1343 00:58:46,918 --> 00:58:51,208 party's medical records about written 1344 00:58:49,318 --> 00:58:55,708 consent that's an important piece is a 1345 00:58:51,208 --> 00:58:57,408 lot of these potential offenses there 1346 00:58:55,708 --> 00:58:59,578 are medical records in follow and 1347 00:58:57,409 --> 00:59:02,278 especially does talk about treatment 1348 00:58:59,579 --> 00:59:03,778 records as such judge Shaw I think I got 1349 00:59:02,278 --> 00:59:06,289 a little ahead of myself in the next 1350 00:59:03,778 --> 00:59:09,418 question because this one's for you 1351 00:59:06,289 --> 00:59:10,890 but what does the burden of proof here 1352 00:59:09,418 --> 00:59:13,918 and I know it's different from your 1353 00:59:10,889 --> 00:59:15,418 experience in the legal sense but from a 1354 00:59:13,918 --> 00:59:16,978 title 9 perspective what does the burden 1355 00:59:15,418 --> 00:59:19,548 of proof mean in terms of reaching the 1356 00:59:16,978 --> 00:59:19,548 determination 1357 00:59:20,280 --> 00:59:28,150 well the burden of proof in in my 1358 00:59:26,230 --> 00:59:31,840 experience and of course it will be for 1359 00:59:28,150 --> 00:59:34,000 the adjudicators here is this is the 1360 00:59:31,840 --> 00:59:37,530 standard by which they determine whether 1361 00:59:34,000 --> 00:59:40,960 or not the complaint has been proven and 1362 00:59:37,530 --> 00:59:43,510 it's again as we discussed was there are 1363 00:59:40,960 --> 00:59:46,329 preponderance of the evidence it or is 1364 00:59:43,510 --> 00:59:49,110 the adjudicator required to find that it 1365 00:59:46,329 --> 00:59:51,759 was by clear and convincing evidence so 1366 00:59:49,110 --> 00:59:54,490 it's simply the standard by which the 1367 00:59:51,760 --> 00:59:57,660 adjudicator weighs the evidence and this 1368 00:59:54,489 --> 01:00:00,729 side this has there been more evidence 1369 00:59:57,659 --> 01:00:02,349 than the other side presented is it just 1370 01:00:00,730 --> 01:00:04,150 one person's word against the other and 1371 01:00:02,349 --> 01:00:06,880 these people are equally credible or 1372 01:00:04,150 --> 01:00:09,730 under the circumstances where there is a 1373 01:00:06,880 --> 01:00:13,599 clear and convincing evidence is the 1374 01:00:09,730 --> 01:00:17,380 adjudicator firmly convinced that the 1375 01:00:13,599 --> 01:00:18,730 complaint is true then it's it's what 1376 01:00:17,380 --> 01:00:22,210 the adjudicator to make that 1377 01:00:18,730 --> 01:00:23,909 determination and that's the standard 1378 01:00:22,210 --> 01:00:26,139 that they have to use you know 1379 01:00:23,909 --> 01:00:28,480 ultimately it falls on the school that's 1380 01:00:26,139 --> 01:00:30,250 the idea of these the title nine 1381 01:00:28,480 --> 01:00:33,210 obligations fall on the school and the 1382 01:00:30,250 --> 01:00:37,300 ultimate burden falls on the institution 1383 01:00:33,210 --> 01:00:39,940 yes yeah and important to treat the 1384 01:00:37,300 --> 01:00:42,070 parties as such that to not consider the 1385 01:00:39,940 --> 01:00:44,800 complainant is having to prove his her 1386 01:00:42,070 --> 01:00:47,260 case and not having to the respondent to 1387 01:00:44,800 --> 01:00:51,340 to prove his or her innocence or Nam's 1388 01:00:47,260 --> 01:00:54,820 breath so we previewed this a little bit 1389 01:00:51,340 --> 01:00:57,280 the the types of evidence 1390 01:00:54,820 --> 01:00:59,890 so I think just refresher from the last 1391 01:00:57,280 --> 01:01:02,110 slide we talked about evidence we 1392 01:00:59,889 --> 01:01:04,269 mentioned all relevant evidence to be 1393 01:01:02,110 --> 01:01:07,059 included but there's bring types of 1394 01:01:04,269 --> 01:01:09,550 evidence and some is actually more 1395 01:01:07,059 --> 01:01:11,980 valuable than the others so judge 1396 01:01:09,550 --> 01:01:13,950 talking just give us a brief explanation 1397 01:01:11,980 --> 01:01:17,590 of different types of evidence that 1398 01:01:13,949 --> 01:01:19,899 decision-makers may see and which 1399 01:01:17,590 --> 01:01:25,150 evidence how things should be weighed 1400 01:01:19,900 --> 01:01:29,260 and and which is more valuable of course 1401 01:01:25,150 --> 01:01:31,840 so you have direct evidence 1402 01:01:29,260 --> 01:01:32,920 circumstantial evidence hearsay 1403 01:01:31,840 --> 01:01:37,240 character 1404 01:01:32,920 --> 01:01:39,099 fire that axe so direct evidence the the 1405 01:01:37,239 --> 01:01:41,919 example that lawyers often talk about 1406 01:01:39,099 --> 01:01:44,230 and in law school is direct evidence is 1407 01:01:41,920 --> 01:01:46,690 a witness who is able to testify that 1408 01:01:44,230 --> 01:01:51,490 they actually saw between being 1409 01:01:46,690 --> 01:01:54,820 complained of so it's the cookie jar 1410 01:01:51,489 --> 01:01:56,469 example is the parent walks in and sees 1411 01:01:54,820 --> 01:01:56,980 the kid eating cookies from the cookie 1412 01:01:56,469 --> 01:02:00,489 jar 1413 01:01:56,980 --> 01:02:03,480 that's direct evidence I saw the person 1414 01:02:00,489 --> 01:02:06,489 doing the thing from blind up 1415 01:02:03,480 --> 01:02:09,969 circumstance to evidence though is not 1416 01:02:06,489 --> 01:02:12,879 seeing the actual thing complained of 1417 01:02:09,969 --> 01:02:15,099 that seeing evidence that indicates the 1418 01:02:12,880 --> 01:02:16,780 person did the same complained of so 1419 01:02:15,099 --> 01:02:19,089 this is where the crowd walks into the 1420 01:02:16,780 --> 01:02:21,910 room the kid has the empty cookie jar 1421 01:02:19,090 --> 01:02:24,730 sitting in the lab and there could be 1422 01:02:21,909 --> 01:02:26,440 problems around the child's mouth and in 1423 01:02:24,730 --> 01:02:29,110 their lap that would be circumstantial 1424 01:02:26,440 --> 01:02:31,510 evidence that the kid ate the cookies 1425 01:02:29,110 --> 01:02:33,670 but you know circumstantial evidence can 1426 01:02:31,510 --> 01:02:35,260 be more attenuated than that it could be 1427 01:02:33,670 --> 01:02:37,960 that there were cookie crumbs leading to 1428 01:02:35,260 --> 01:02:39,940 the kids room or whatever well it is 1429 01:02:37,960 --> 01:02:43,570 though is simply evidence that it's not 1430 01:02:39,940 --> 01:02:45,340 direct it is directly saw the person do 1431 01:02:43,570 --> 01:02:48,190 the thing complained of but 1432 01:02:45,340 --> 01:02:50,789 circumstances that tend to indicate that 1433 01:02:48,190 --> 01:02:54,700 the person did to think complained of 1434 01:02:50,789 --> 01:02:58,539 hearsay evidence is evidence offered by 1435 01:02:54,699 --> 01:03:01,509 a party who neither saw the thing 1436 01:02:58,539 --> 01:03:03,849 complained of or saw circumstances 1437 01:03:01,510 --> 01:03:07,450 leading to the thing complained of but 1438 01:03:03,849 --> 01:03:09,519 heard someone say something regarding of 1439 01:03:07,449 --> 01:03:12,129 the event that is it's evidence offered 1440 01:03:09,519 --> 01:03:14,949 by a third party not an actual witness 1441 01:03:12,130 --> 01:03:17,320 to be that but offered for the truth of 1442 01:03:14,949 --> 01:03:22,179 what they saw or what they heard 1443 01:03:17,320 --> 01:03:27,670 actually character evidence is evidence 1444 01:03:22,179 --> 01:03:31,389 regarding a person's prior character for 1445 01:03:27,670 --> 01:03:36,309 truthfulness and honesty and prior bad 1446 01:03:31,389 --> 01:03:39,639 acts I have to do with what was this 1447 01:03:36,309 --> 01:03:45,090 parties conduct with regard to relevant 1448 01:03:39,639 --> 01:03:46,809 evidence that had to do with them doing 1449 01:03:45,090 --> 01:03:48,730 something that is 1450 01:03:46,809 --> 01:03:52,779 would be similar to the event complained 1451 01:03:48,730 --> 01:03:55,360 of and typically involving the parties 1452 01:03:52,780 --> 01:03:59,950 in the case where the complaint is being 1453 01:03:55,360 --> 01:04:01,480 heard perfect and I think if you if I 1454 01:03:59,949 --> 01:04:02,529 had that explanation when I was taking 1455 01:04:01,480 --> 01:04:04,210 evidence I might have learned it a 1456 01:04:02,530 --> 01:04:06,910 little better I you know I was thinking 1457 01:04:04,210 --> 01:04:10,389 the same thing that's the cookie example 1458 01:04:06,909 --> 01:04:11,949 is so so apt I may use that with my kid 1459 01:04:10,389 --> 01:04:13,599 I have three middle schoolers and I feel 1460 01:04:11,949 --> 01:04:15,159 like we get a lot of circumstantial 1461 01:04:13,599 --> 01:04:17,259 evidence around the house definitely 1462 01:04:15,159 --> 01:04:20,710 some hearsay definitely some character 1463 01:04:17,260 --> 01:04:23,950 evidence so let me follow up though on 1464 01:04:20,710 --> 01:04:26,079 those great examples so institutions any 1465 01:04:23,949 --> 01:04:29,079 of those pieces of evidence you just 1466 01:04:26,079 --> 01:04:31,029 mentioned need to be considered if 1467 01:04:29,079 --> 01:04:33,730 they're relevant but institutions can 1468 01:04:31,030 --> 01:04:37,420 adopt rules that have different weight 1469 01:04:33,730 --> 01:04:40,650 for coming different so what's your your 1470 01:04:37,420 --> 01:04:44,400 sense of a kind of a 30,000 foot view of 1471 01:04:40,650 --> 01:04:47,139 how schools might want to weigh 1472 01:04:44,400 --> 01:04:50,950 different types of evidence direct first 1473 01:04:47,139 --> 01:04:52,690 at surface - versus the others well 1474 01:04:50,949 --> 01:04:53,710 there are a couple of ways to look at 1475 01:04:52,690 --> 01:04:58,480 this guy 1476 01:04:53,710 --> 01:05:02,949 typically fact finders whether they be 1477 01:04:58,480 --> 01:05:05,650 jurors or jurors are told that there a 1478 01:05:02,949 --> 01:05:10,869 variety of ways to weigh the evidence 1479 01:05:05,650 --> 01:05:14,320 and so we we learned that in considering 1480 01:05:10,869 --> 01:05:18,369 the weight and value of testimony of any 1481 01:05:14,320 --> 01:05:20,170 witnesses that the fact-finder in this 1482 01:05:18,369 --> 01:05:23,529 case the adjudicator can take into 1483 01:05:20,170 --> 01:05:25,869 consideration a number of things the 1484 01:05:23,530 --> 01:05:28,810 appearance attitude and behavior of the 1485 01:05:25,869 --> 01:05:31,630 witness the interest of the witness in 1486 01:05:28,809 --> 01:05:34,809 the outcome of the case the relation of 1487 01:05:31,630 --> 01:05:39,640 the witness to any of the parties in the 1488 01:05:34,809 --> 01:05:41,679 inka the nation of the witness to speak 1489 01:05:39,639 --> 01:05:44,259 truthfully or untruthfully the 1490 01:05:41,679 --> 01:05:47,889 probability or improbability of the 1491 01:05:44,260 --> 01:05:51,010 witnesses statements but ultimately the 1492 01:05:47,889 --> 01:05:53,049 fact-finder and in this case would be 1493 01:05:51,010 --> 01:05:58,000 the adjudicator should give any evidence 1494 01:05:53,050 --> 01:06:00,610 for a testimony such weight and value as 1495 01:05:58,000 --> 01:06:03,250 they believe the testimony is in 1496 01:06:00,610 --> 01:06:05,920 title to the sea it all comes down to 1497 01:06:03,250 --> 01:06:08,380 that so I think that if there if 1498 01:06:05,920 --> 01:06:11,110 institutions want to create rules it 1499 01:06:08,380 --> 01:06:13,599 should be a general rule to the effect 1500 01:06:11,110 --> 01:06:15,849 that the adjudicator shall give any 1501 01:06:13,599 --> 01:06:18,610 evidence or testimony of any witness 1502 01:06:15,849 --> 01:06:20,679 such great weight and value as they 1503 01:06:18,610 --> 01:06:23,170 believe the evidence the testimony is 1504 01:06:20,679 --> 01:06:25,389 entitled to receive because as we 1505 01:06:23,170 --> 01:06:27,430 discussed before there are always going 1506 01:06:25,389 --> 01:06:29,440 to be credibility determinations and so 1507 01:06:27,429 --> 01:06:32,829 whether evidence is direct 1508 01:06:29,440 --> 01:06:36,369 circumstantial hearsay character or bad 1509 01:06:32,829 --> 01:06:40,329 acts it depends on what that evidence is 1510 01:06:36,369 --> 01:06:41,799 and how credible it is so and only the 1511 01:06:40,329 --> 01:06:45,219 adjudicator can make that determination 1512 01:06:41,800 --> 01:06:47,019 I understood and I think those are those 1513 01:06:45,219 --> 01:06:49,209 are really important considerations to 1514 01:06:47,019 --> 01:06:50,889 have but based on your experience is 1515 01:06:49,210 --> 01:06:58,110 there one is there a type of evidence 1516 01:06:50,889 --> 01:07:00,969 that would be more useful adjudicator 1517 01:06:58,110 --> 01:07:03,130 than other types of evidence for sure 1518 01:07:00,969 --> 01:07:04,959 for sure and you know it's the kind of 1519 01:07:03,130 --> 01:07:09,099 evidence that common sense tells you is 1520 01:07:04,960 --> 01:07:12,639 going to be the most heavily weighted 1521 01:07:09,099 --> 01:07:18,639 evidence and that would be direct 1522 01:07:12,639 --> 01:07:21,009 testimony of direct evidence by a third 1523 01:07:18,639 --> 01:07:22,960 party who has no relation to any of the 1524 01:07:21,010 --> 01:07:27,490 parties and is a completely objective 1525 01:07:22,960 --> 01:07:29,320 observer that kind of evidence it's like 1526 01:07:27,489 --> 01:07:30,669 an eyewitness to an event who knows 1527 01:07:29,320 --> 01:07:32,260 neither of the parties and is not 1528 01:07:30,670 --> 01:07:35,530 affiliated with in the institution 1529 01:07:32,260 --> 01:07:38,110 whatsoever so that evidence obviously is 1530 01:07:35,530 --> 01:07:40,930 going to be the most credible and then 1531 01:07:38,110 --> 01:07:45,599 probably but see it all depends you know 1532 01:07:40,929 --> 01:07:51,819 but just as a general proposition if a 1533 01:07:45,599 --> 01:07:53,529 witness or the evidence submitted is in 1534 01:07:51,820 --> 01:07:55,059 relation to one of the parties or with 1535 01:07:53,530 --> 01:07:58,269 relationship to one of the parties 1536 01:07:55,059 --> 01:08:01,210 either personally or professionally and 1537 01:07:58,269 --> 01:08:04,119 it is either hearsay indirect or 1538 01:08:01,210 --> 01:08:08,280 circumstantial that evidence is probably 1539 01:08:04,119 --> 01:08:10,539 going to be less heavily weighted 1540 01:08:08,280 --> 01:08:13,060 understood yeah and I think that that's 1541 01:08:10,539 --> 01:08:14,369 a good point for adjudicators to to 1542 01:08:13,059 --> 01:08:18,130 realize that 1543 01:08:14,369 --> 01:08:19,960 there's a lot of factors that go into to 1544 01:08:18,130 --> 01:08:22,359 how you weigh evidence and it's it's 1545 01:08:19,960 --> 01:08:23,560 really kind of will be you and that 1546 01:08:22,359 --> 01:08:24,940 that's why it's important that the 1547 01:08:23,560 --> 01:08:27,039 adjudicators are the one that makes that 1548 01:08:24,939 --> 01:08:29,679 decision as they objectively evaluate 1549 01:08:27,039 --> 01:08:32,019 that relevant evidence let's move on to 1550 01:08:29,680 --> 01:08:35,319 talk about other pieces and access to 1551 01:08:32,020 --> 01:08:36,910 evidence so the rules explained that the 1552 01:08:35,319 --> 01:08:39,910 regulations explain that throughout the 1553 01:08:36,909 --> 01:08:42,608 hearing institutions must review and 1554 01:08:39,909 --> 01:08:44,588 afford to both parties equal and afford 1555 01:08:42,609 --> 01:08:46,779 both parties equal opportunity to review 1556 01:08:44,588 --> 01:08:48,939 and inspect evidence that was obtained 1557 01:08:46,779 --> 01:08:51,069 as part of the investigation and is 1558 01:08:48,939 --> 01:08:53,439 directly related to the allegation so 1559 01:08:51,069 --> 01:08:55,600 here one of the terms here is directly 1560 01:08:53,439 --> 01:08:57,068 related so here we're not talking about 1561 01:08:55,600 --> 01:08:58,719 relevant evidence I'm talking about 1562 01:08:57,069 --> 01:09:03,460 evidence related to the allegation 1563 01:08:58,719 --> 01:09:05,259 that's broader than potential and this 1564 01:09:03,460 --> 01:09:07,390 includes evidence that the school 1565 01:09:05,259 --> 01:09:10,119 doesn't intend to rely on including 1566 01:09:07,390 --> 01:09:18,250 irrelevant evidence and inculpatory and 1567 01:09:10,119 --> 01:09:21,699 exculpatory timing as this chart is 1568 01:09:18,250 --> 01:09:24,399 important for for institutions to keep 1569 01:09:21,699 --> 01:09:25,988 in mind because you will want to keep 1570 01:09:24,399 --> 01:09:28,059 these deadlines in mind so the extent 1571 01:09:25,988 --> 01:09:31,659 that there are deadlines and build them 1572 01:09:28,060 --> 01:09:33,460 into your process so generally the the 1573 01:09:31,659 --> 01:09:35,500 kind of the touchstone goal to keep in 1574 01:09:33,460 --> 01:09:38,770 mind is that institutions have to 1575 01:09:35,500 --> 01:09:41,259 provide access to evidence early enough 1576 01:09:38,770 --> 01:09:43,330 that each party can meaningfully respond 1577 01:09:41,259 --> 01:09:45,759 to the evidence prior to the conclusion 1578 01:09:43,329 --> 01:09:48,278 of the investigation so this makes this 1579 01:09:45,759 --> 01:09:52,270 makes sense if for asking people to to 1580 01:09:48,279 --> 01:09:54,430 react to respond to be judged upon this 1581 01:09:52,270 --> 01:09:57,310 evidence you want to make sure people 1582 01:09:54,430 --> 01:09:59,079 have access to understand it second so 1583 01:09:57,310 --> 01:10:01,719 prior to issuing the investigative 1584 01:09:59,079 --> 01:10:03,250 report the investigator would send all 1585 01:10:01,719 --> 01:10:05,469 parties evidence subject to review an 1586 01:10:03,250 --> 01:10:09,310 inspection and a four of these ten days 1587 01:10:05,469 --> 01:10:10,750 to submit a written response to review 1588 01:10:09,310 --> 01:10:12,670 from other presentations but helpful to 1589 01:10:10,750 --> 01:10:14,859 keep in mind and again ten days prior to 1590 01:10:12,670 --> 01:10:17,949 the hearing or other determination is 1591 01:10:14,859 --> 01:10:19,210 the investigative report must be sent 1592 01:10:17,949 --> 01:10:22,059 for the parties to review and provide 1593 01:10:19,210 --> 01:10:23,739 response and after during in the hearing 1594 01:10:22,060 --> 01:10:26,980 which is important for for here and for 1595 01:10:23,738 --> 01:10:28,539 the investigators all evidence available 1596 01:10:26,979 --> 01:10:31,029 to parties 1597 01:10:28,539 --> 01:10:33,340 must be made available parties and equal 1598 01:10:31,029 --> 01:10:36,659 opportunity to review that evidence 1599 01:10:33,340 --> 01:10:41,170 including for the purpose cross identity 1600 01:10:36,659 --> 01:10:44,649 and then that brings us to our last 1601 01:10:41,170 --> 01:10:48,130 topic here and another questioners for 1602 01:10:44,649 --> 01:10:50,439 judge Shaw so I think way back at the 1603 01:10:48,130 --> 01:10:52,690 beginning we talked about legal 1604 01:10:50,439 --> 01:10:56,439 privileges and how they have they may 1605 01:10:52,689 --> 01:10:58,389 arise in the presentation in the hearing 1606 01:10:56,439 --> 01:11:02,919 and regard to questionings by 1607 01:10:58,390 --> 01:11:06,190 adjudicators you just explained what are 1608 01:11:02,920 --> 01:11:10,210 what is a legal privilege and how and 1609 01:11:06,189 --> 01:11:14,679 why would it apply here a legal 1610 01:11:10,210 --> 01:11:18,730 privilege means that the law recognizes 1611 01:11:14,680 --> 01:11:21,449 that there was a communication made in 1612 01:11:18,729 --> 01:11:26,079 confidence and that confidence is 1613 01:11:21,448 --> 01:11:28,629 honored by the law and so the the law 1614 01:11:26,079 --> 01:11:32,529 recognizes that there are certain 1615 01:11:28,630 --> 01:11:34,420 relationships in which in order for 1616 01:11:32,529 --> 01:11:38,409 those relationships the function as 1617 01:11:34,420 --> 01:11:40,869 intended and as the law provides then 1618 01:11:38,409 --> 01:11:45,069 there must be some recognition that 1619 01:11:40,869 --> 01:11:47,050 those communications or remain or made 1620 01:11:45,069 --> 01:11:51,279 and remain confidential 1621 01:11:47,050 --> 01:11:54,869 so here we have attorney-client priests 1622 01:11:51,279 --> 01:11:59,198 penitent doctor-patient and spouses and 1623 01:11:54,869 --> 01:12:01,899 so in order for the attorney-client 1624 01:11:59,198 --> 01:12:05,229 relationship to function as it should 1625 01:12:01,899 --> 01:12:06,488 the client should be permitted to make 1626 01:12:05,229 --> 01:12:09,669 communication or enter into 1627 01:12:06,488 --> 01:12:12,009 communications with their attorney with 1628 01:12:09,670 --> 01:12:13,930 the understanding and assurance that 1629 01:12:12,010 --> 01:12:17,320 those communications will remain 1630 01:12:13,930 --> 01:12:19,949 confidential likewise with the priests 1631 01:12:17,319 --> 01:12:24,340 penitent statements made in 1632 01:12:19,948 --> 01:12:26,969 confidentiality with the priest are to 1633 01:12:24,340 --> 01:12:31,029 remain confidential 1634 01:12:26,969 --> 01:12:35,350 likewise with patient doctor likewise as 1635 01:12:31,029 --> 01:12:37,569 between spouses but I would point out to 1636 01:12:35,350 --> 01:12:41,829 you that the statements need be made 1637 01:12:37,569 --> 01:12:43,929 under circumstances indicating and 1638 01:12:41,829 --> 01:12:45,699 that they be made confidentially now 1639 01:12:43,930 --> 01:12:47,970 that's typically not going to be a 1640 01:12:45,699 --> 01:12:50,139 problem with attorney-client 1641 01:12:47,970 --> 01:12:53,530 circumstances but you may occasionally 1642 01:12:50,140 --> 01:12:57,490 hear of or encounter circumstances where 1643 01:12:53,529 --> 01:13:01,840 an individual made a statement and a 1644 01:12:57,489 --> 01:13:05,289 priest happened to be present or made a 1645 01:13:01,840 --> 01:13:08,050 statement to a group of people and a 1646 01:13:05,289 --> 01:13:09,579 spouse happened to be present if if this 1647 01:13:08,050 --> 01:13:12,460 statement is made under circumstances 1648 01:13:09,579 --> 01:13:13,989 not indicating an intent that the 1649 01:13:12,460 --> 01:13:16,989 statement be kept confidential 1650 01:13:13,989 --> 01:13:19,689 then the privilege does not apply now of 1651 01:13:16,989 --> 01:13:21,880 course this though the privilege can be 1652 01:13:19,689 --> 01:13:23,710 waived in that way if it's made publicly 1653 01:13:21,880 --> 01:13:25,900 and in front of others where there was 1654 01:13:23,710 --> 01:13:28,750 no indication that there was intent that 1655 01:13:25,899 --> 01:13:31,719 it was done with an expectation of 1656 01:13:28,750 --> 01:13:35,500 privacy but under any circumstances 1657 01:13:31,720 --> 01:13:38,380 though the client the penitent patient 1658 01:13:35,500 --> 01:13:40,270 or spouse can waive the privilege and 1659 01:13:38,380 --> 01:13:45,869 say I have no objection to that 1660 01:13:40,270 --> 01:13:47,980 statement being publicly divulged and so 1661 01:13:45,869 --> 01:13:49,779 you have to examine each of the 1662 01:13:47,979 --> 01:13:53,649 circumstances but as a general 1663 01:13:49,779 --> 01:13:57,579 proposition these kind of confidential 1664 01:13:53,649 --> 01:14:00,069 statements are inadmissible I think 1665 01:13:57,579 --> 01:14:02,470 those are great points let me ask you 1666 01:14:00,069 --> 01:14:07,359 one last question put yourself in the 1667 01:14:02,470 --> 01:14:09,280 shoes of an adjudicator and potentially 1668 01:14:07,359 --> 01:14:12,369 privileged information doctor-patient 1669 01:14:09,279 --> 01:14:14,079 information is disclosed at the hearing 1670 01:14:12,369 --> 01:14:17,380 and the holder of the privilege does not 1671 01:14:14,079 --> 01:14:20,319 want that information to be disclosed 1672 01:14:17,380 --> 01:14:23,100 but as adjudicated you've heard it what 1673 01:14:20,319 --> 01:14:26,409 what would you do in that situation 1674 01:14:23,100 --> 01:14:28,450 well let's I'm glad you raised that 1675 01:14:26,409 --> 01:14:33,489 because there are certain statements 1676 01:14:28,449 --> 01:14:34,899 that are made to a doctor that a patient 1677 01:14:33,489 --> 01:14:37,029 may make to a doctor that are not 1678 01:14:34,899 --> 01:14:41,589 considered to be privileged statements 1679 01:14:37,029 --> 01:14:44,679 and then patients often make statements 1680 01:14:41,590 --> 01:14:46,930 to their doctors that are offered for 1681 01:14:44,680 --> 01:14:50,770 here and treatment and that are vital to 1682 01:14:46,930 --> 01:14:52,750 care in treatment and those statements 1683 01:14:50,770 --> 01:14:55,270 the patient obviously knows are going to 1684 01:14:52,750 --> 01:14:57,069 be shared with nurses and 1685 01:14:55,270 --> 01:15:01,540 medical attendants and so forth and so 1686 01:14:57,069 --> 01:15:06,239 on and so those statements may not be 1687 01:15:01,539 --> 01:15:08,979 privileged statements and and so that's 1688 01:15:06,239 --> 01:15:10,869 assume for the purposes of this question 1689 01:15:08,979 --> 01:15:13,089 though that it is determined to be a 1690 01:15:10,869 --> 01:15:15,130 privileged statement and the adjudicator 1691 01:15:13,090 --> 01:15:16,989 has heard it and then ultimately 1692 01:15:15,130 --> 01:15:19,300 determines it's a privileged statement 1693 01:15:16,989 --> 01:15:21,639 the adjudicator must disregard that 1694 01:15:19,300 --> 01:15:23,710 statement is if it never existed and 1695 01:15:21,640 --> 01:15:24,820 with that Aaron I think I'll kick it 1696 01:15:23,710 --> 01:15:26,850 kick it over to you 1697 01:15:24,819 --> 01:15:29,559 Thank You Scott and thank you both for 1698 01:15:26,850 --> 01:15:31,210 taking the time to walk our viewers 1699 01:15:29,560 --> 01:15:34,360 today through what is really a difficult 1700 01:15:31,210 --> 01:15:36,909 concept just a reminder we have some 1701 01:15:34,359 --> 01:15:38,380 resources available to you the Office of 1702 01:15:36,909 --> 01:15:40,449 Civil Rights first of all it's actually 1703 01:15:38,380 --> 01:15:42,819 their resource has a blog you can click 1704 01:15:40,449 --> 01:15:44,199 on this picture of the webpage if you 1705 01:15:42,819 --> 01:15:46,090 have the actual slide deck but otherwise 1706 01:15:44,199 --> 01:15:47,739 you can probably just google office for 1707 01:15:46,090 --> 01:15:49,270 civil rights blog and I expect it will 1708 01:15:47,739 --> 01:15:51,279 pop right up this is where they've said 1709 01:15:49,270 --> 01:15:53,230 they're gonna put their guidance and any 1710 01:15:51,279 --> 01:15:55,449 further information on this rule as as 1711 01:15:53,229 --> 01:15:57,189 we move forward so if you are a title 9 1712 01:15:55,449 --> 01:15:58,539 coordinator or are someone who's trying 1713 01:15:57,189 --> 01:16:00,279 to keep up with changes in the rule you 1714 01:15:58,539 --> 01:16:02,079 want to be sure to keep an eye on this 1715 01:16:00,279 --> 01:16:04,059 particular website we have a comparison 1716 01:16:02,079 --> 01:16:05,649 document that should be available in the 1717 01:16:04,060 --> 01:16:07,780 same place where you find the slides for 1718 01:16:05,649 --> 01:16:10,119 these presentations and it just shows 1719 01:16:07,779 --> 01:16:12,159 you the changes the new rule made to the 1720 01:16:10,119 --> 01:16:14,019 existing rule and if you're like me or 1721 01:16:12,159 --> 01:16:15,909 your council or title 9 coordinator or 1722 01:16:14,020 --> 01:16:18,580 just curious you may really appreciate 1723 01:16:15,909 --> 01:16:20,979 this particular view we have a higher ed 1724 01:16:18,579 --> 01:16:22,869 webinar series these are free webinars 1725 01:16:20,979 --> 01:16:24,459 we do every year between August and May 1726 01:16:22,869 --> 01:16:26,079 we sort of track the academic year 1727 01:16:24,460 --> 01:16:28,720 they're all about topics in higher 1728 01:16:26,079 --> 01:16:30,189 education and they are free they are CLE 1729 01:16:28,720 --> 01:16:32,560 certified if you're an attorney and you 1730 01:16:30,189 --> 01:16:34,449 listen in live and if you can't listen 1731 01:16:32,560 --> 01:16:36,670 in live they are available after the 1732 01:16:34,449 --> 01:16:38,920 fact on demand you can go to our t CLE 1733 01:16:36,670 --> 01:16:40,329 website and all our webinars across our 1734 01:16:38,920 --> 01:16:42,699 firm are posted there and you just click 1735 01:16:40,329 --> 01:16:45,130 on the box and they pop right up we have 1736 01:16:42,699 --> 01:16:48,789 a blog that talks specifically about 1737 01:16:45,130 --> 01:16:50,650 higher education policy and regulation 1738 01:16:48,789 --> 01:16:51,939 and we're talking a lot about the cares 1739 01:16:50,649 --> 01:16:53,589 Act right now as you can see on the 1740 01:16:51,939 --> 01:16:55,569 screen but we also discuss matters 1741 01:16:53,590 --> 01:16:58,060 involving title 9 from time to time 1742 01:16:55,569 --> 01:17:00,579 and finally we periodically make 1743 01:16:58,060 --> 01:17:02,230 available various publications that are 1744 01:17:00,579 --> 01:17:04,210 really designed to be tools for the 1745 01:17:02,229 --> 01:17:05,859 community like our bar defense rule 1746 01:17:04,210 --> 01:17:08,109 reporting guide if you'd like to sign up 1747 01:17:05,859 --> 01:17:09,109 and get our alerts or information along 1748 01:17:08,109 --> 01:17:10,759 those lines regard 1749 01:17:09,109 --> 01:17:13,309 when we put out some new document or 1750 01:17:10,760 --> 01:17:15,860 white paper or tool just let me know and 1751 01:17:13,310 --> 01:17:19,159 we're happy to get you signed up finally 1752 01:17:15,859 --> 01:17:22,819 I will say on behalf of myself and Scott 1753 01:17:19,158 --> 01:17:24,229 and Booker we really appreciate you all 1754 01:17:22,819 --> 01:17:25,939 tuning in we hope if you've been 1755 01:17:24,229 --> 01:17:27,319 listening all along and you've gone 1756 01:17:25,939 --> 01:17:28,339 through the first several sessions that 1757 01:17:27,319 --> 01:17:29,689 you found them useful 1758 01:17:28,340 --> 01:17:31,100 we hope you'll stick around because 1759 01:17:29,689 --> 01:17:35,388 there are a couple more sessions here at 1760 01:17:31,100 --> 01:17:37,579 the end that are also quite good and I 1761 01:17:35,389 --> 01:17:39,289 will say at the very end here 1762 01:17:37,579 --> 01:17:41,719 understanding once again that we're in 1763 01:17:39,289 --> 01:17:45,529 the midst of the pandemic more than 1764 01:17:41,719 --> 01:17:47,630 anything from Booker and from Scott and 1765 01:17:45,529 --> 01:17:51,460 from myself we hope that you will be 1766 01:17:47,630 --> 01:17:51,460 safe and be well 1767 01:17:56,670 --> 01:17:58,730 you