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No “Due Process” for University of Virginia student’s accused of sexual misconduct

No “Due Process” for University of Virginia student’s accused of sexual misconduct:

I have been seeing a lot of sexual misconduct cases out of UVA lately. The procedures followed in those hearings are not fair, and not what we are accustomed to in judicial proceedings in this country.

  1. Right to be Silent: Your “right to be silent” is otherwise known as your 5th amendment privilege against self-incrimination. The UVA proceedings are separate from any criminal charges. That means if you defend yourself in the UVA case (which almost always boils down to he said/she said), then anything you say can be used against you in criminal court. If you don’t defend yourself, then there is no he said/she said. There’s just she said.

HOW TO DEAL WITH IT:  Don’t make any statements at the beginning of the case.  You know only the barest outline of what you’re being accused of at that point. A good attorney can listen to your version of events, and identify witnesses and evidence to point the Investigators to WITHOUT your being interviewed by the Investigators.  Then once the Draft Report is released, you and your attorney can review it, along with all of the exhibits — and make an informed decision as to whether or not you want to submit to an interview, at which your attorney can be present to advise you.

  1. Right to Counsel: Sure, you can have an attorney at the UVA proceedings. I can sit right at the table beside you — I just can’t SAY anything. Literally — I can’t SPEAK (aside from whispering in your ear) during the proceedings. “While the advisor may provide support and advice to a party at the Hearing, the advisor may not speak on behalf of the party or otherwise participate in, or in any manner disrupt, the Hearing. The University reserves the right to remove any individual whose actions are disruptive to the proceedings.” The Policy, page 15.

HOW TO DEAL WITH IT: A good attorney can educate you about what to expect, marshal the evidence in your favor, and consult with you throughout the process, including helping you prepare your statements and arguments.

  1. Cross-Examination: Sure, you can cross-examine witnesses at your hearing. Of course, your attorney can’t say anything — so you have to do it yourself. What’s that? You want to ask the Complainant a Question? Oh, no no no. You get to write down your “suggested” questions, and submit them to the hearing chair, and he or she will decide whether or not to ask them. “The parties may not directly question one another or any witness, although they may proffer questions for the Review Panel, who may choose, in their discretion, to pose appropriate and relevant questions of the Investigator, the parties or any witnesses.” The Policy, Page 15.

HOW TO DEAL WITH IT: Having thoroughly reviewed the Draft and Final Investigation Reports, talked with you at length, reviewed any evidence you have, and spoken with any additional witnesses, your attorney will know how to recognize the weaknesses in the case against you, both in terms of technical defenses, and in terms of good common sense.  Having experience with cross-examination, your attorney can help you prepare questions for the witnesses and your accuser which are based on their own recorded statements, with references to specific portions of the transcripts, to bring the most important issues to the attention of the panel, and to highlight any bias on the part of the Investigators.

  1. Presumption of Innocence: Did I mention you are found guilty BEFORE the hearing? That’s right. A “report” is issued by the “Investigator” that says you’re guilty first, and then you get to decide if you want to “appeal” it. The appeal is your first opportunity for a “hearing”. With the lawyer who can’t speak. And the chair who decides whether or not to ask your questions. But, hey — you can testify, right? Oh, wait — see #1. “When the Investigator determines that there is sufficient information, by a Preponderance of the Evidence, to support a finding of responsibility … the Respondent may accept or contest such recommended finding(s) …If the Respondent contests one or more of the recommended finding(s) … [t]he Title IX Coordinator will provide the Final Investigation Report, together with any statements by the parties, to the Review Panel for further proceedings…” The Policy pages 12-13.

HOW TO DEAL IT: This is why it is vitally important that you not make any statements at the beginning of the investigation, but carefully consider whether or not to speak to the Investigator after the Draft Report comes out.  The Draft Report will contain information from which you can sometimes infer how the Investigator is going to decide the case without your statements.  You can usually also get an idea whether or not anything you say to that Investigator is likely to help or hurt — before you open your mouth.  You always have the option to testify at the panel hearing, whether or not you talk to the Investigators.

  1. Jury of your Peers: Come right in and sit down in front of the special panel of “trained” members of the UVA Community. I’ll bet none of them are in your Government class… But hey, if you don’t like the result of this Star Chamber process, surely you can appeal it at the end to a REAL court, right? Oops. No, you can’t. “The decision of the Review Panel is final, without further recourse or appeal by either party”. The Policy, Page 18.

HOW TO DEAL WITH IT: The people who sit on the UVA Panels tend to cycle through many cases over time.  Since the “new” Title IX process has been going on for a few years now, the panelists have gained experience and even witnessed some abuses of the system by Complainants.  When the evidence is questionable, and the case is well-presented, the panelists can sometimes be critical of the Investigators’ findings, and may even reverse a finding of responsibility.  The important thing is to be thoroughly prepared for the hearing, and take it seriously.  You don’t get a second bite at the apple.

  1. Standard of Proof: Surely they have to prove you did whatever you’re accused of “Beyond a Reasonable Doubt”, right? Nope. The standard that applies is “Preponderance of the Evidence”. That’s not even “Clear and Convincing” — it’s just basically 51%. More likely than not.

HOW TO DEAL WITH IT: Get a good lawyer, early on, and fight strategically.  If you are, or in the future could be, facing criminal charges, that should have an impact on how you approach the UVA case.  Assessment of the situation as it develops, anticipation of potential problems before they arise, and preparation are crucial.

I’m not a fan of the Good Ol’ Boy system, but as an attorney, I am a fan of Constitutional Due Process. We are ruining kids’ lives here – and surely given the DNA exonerations in the criminal process, which HAS all these protections — surely SOME of the kids whose lives we are ruining are innocent.

Moreover — we are debasing ourselves as a society, and systemically degrading our own cultural notions of Justice by allowing this to persist. I, too, have worn the Honors of Honor — and this is just beneath us. 

Contact us today for a Consultation.

André Hakes, Criminal Defense Attorney

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Charlottesville, VA (434-973-7474)
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Andre A. Hakes

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