Purpose of Evidentiary Hearings
The purpose of an Evidentiary Hearing is to ensure that no legitimate concern, with sufficient weight of evidence to warrant a charge, is prevented from being heard by a Judicial Panel upon the decision of a single individual – the Judicial Officer.
An Evidentiary Panel has the responsibility, “To hear evidence and argument[s] of the reporting party and the responding student in cases in which no formal charges (were) filed by the Judicial Officer." The Panel has the authority to instruct the Judicial Officer to file appropriate charges in such cases.
Guidelines for Proceedings
At least four of the six panelists must agree that there is sufficient evidence to warrant a formal charge for the Panel to instruct the Judicial Officer to charge.
The Charter specifies that in order to find a student responsible for a violation, five of the six panelists must agree. The Charter specifies that in an appeal the burden is on the appellant to demonstrate error, but the burden of proof is reduced to “substantial probability” and only four panelists must agree in order to uphold the appeal. The Board has determined the appropriate vote for an Evidentiary Panel should be consistent with an appeal – thus only requiring four of the six panelists to find there is sufficient evidence to charge the case. When the case is charged, the burden of proof and vote required revert to those outlined in the Charter for a Judicial Hearing Panel.
Requirements for Evidence
All documentary evidence and witness testimony considered by the Judicial Officer when s/he made the decision not to charge the case should be made available to the Evidentiary Panel. New information (discovered or presented after the “no charge” decision) may be considered, or excluded, at the Panel’s discretion. On that issue, the Board cautions reporting parties, responding students, and witnesses alike that fairness of the judicial process requires that all adhere to deadlines provided by the Office of Community Standards so that all parties have sufficient time to respond to new information and so that the Judicial Officer can verify information whenever possible.
Note: The Board on Judicial Affairs agrees with the assessment of a previously convened Evidentiary Hearing Panel that one “component of due process is the right to an Evidentiary Hearing and (thus) the time between the reporting party’s request for an Evidentiary Hearing and the date of that hearing should not accrue against the statute of limitations.”