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THE SINGLE INVESTIGATOR MODEL VERSUS THE HEARING PANEL MODEL: PROS & CONS

By Jonathan Cook

I have been advocating for students, both complainants and respondents in campus sexual assault hearings (mini trials without sufficient evidentiary safeguards) on college and university campuses long enough to witness both procedures in practice at the same institutions. I cannot say I think one model leads to a more just outcome than the other, or that either typically produces just outcomes. This is because every college and university is unique in how their chosen model is implemented. Some are very fair and others are complete disasters. The Hearing Panel Model is the most common, though many universities are trending towards the Single Investigator Model as of late.

THE HEARING PANEL MODEL IN A NUTSHELL begins with an institution’s designated Title IX investigator (sometimes someone in-house/sometimes a contracted attorney from an outside firm) interviewing the complainant and respondent, interviewing witnesses with relevant information, collecting evidence, and concluding with an investigation report summarizing the witness interviews and containing descriptions of evidence collected. The investigation report his then handed over to the complainant, respondent, and hearing panelists a week or two before the hearing.

At the hearing, the complainant and respondent make statements, ask questions of each other and other witnesses via the hearing panel chairperson (similar to a cross examination). The hearing panelists then do the same. The complainant and respondent must answer questions posed to them by the panelists. Sometimes closing statements are allowed. Again, every school is unique. The panel deliberates from anywhere between an hour and weeks. The findings are produced. If a finding of “guilty” or “responsible” is rendered then sanctions are imposed. Both parties are allowed to appeal the finding. Grounds for appeals are limited at the vast majority of schools to 1) procedural error and 2) new evidence not available at the time of the hearing. Some schools go further and also allow appeals based on 3) the weight of evidence being inconsistent with the findings. Unfortunately, there are a few schools that do not allow appeals based on procedural error—largely the most unfair omission I have seen simply due to the litany of errors committed in almost every case. See Franklin Pierce University Student Code of Conduct at 21.

The benefit of a panel is that an experienced student defense attorney can read the panelists throughout the hearing and help guide the client’s case presentation accordingly. The weaknesses of a hearing panel setting are (1) panelists are almost always inadequately trained to resolve allegations of sex crimes; (2) panelists ask questions that illicit prejudicial testimony such as past sexual history, reputation, and character evidence, and (3) the panel chairperson is often similarly incompetent thus allowing the aforementioned improper questions to be answered.

THE SINGLE INVESTIGATOR MODEL IN A NUTSHELL begins exactly the same way as the hearing panel model with an institution’s designated Title IX investigator (sometimes someone in-house/sometimes a contracted attorney from an outside firm) interviewing witnesses with relevant information, collecting evidence, and concluding with an investigation report summarizing the witness interviews and containing descriptions of evidence collected. The big difference here is this is the end of the road. No hearing ensues. The designated investigator renders a finding and recommends a sanction. The investigator literally serves as the police, judge and jury. There is a reason the three are separated in the real world.

Like the hearing panel model, this model can be very fair or very unfair. The efficacy of the model depends wholly on the competence and objectivity of one person—the designated investigator. The primary con is one investigator with too much power may be biased for any of a number of reasons or simply incompetent.

A TALE OF TWO INVESTIGATORS. Same school, two vastly different results. American University used to use a hearing panel model, but within the last couple years has transitioned into the single investigator model. In my experience, AU panel hearings were the most flawed in terms of fair process as compared to other D.C. schools where I have represented several students including Georgetown University and George Washington University. I have represented two clients at AU since the transition to the single investigator model. The facts of the cases were very similar. The investigator designated for the first case was combative, far from impartial, with little understanding of what hearsay actually meant. This was a problem because hearsay evidence was included in the investigation report at that investigator’s sole discretion. That investigator ended up advocating on behalf of the opposing party in the hearing. Yes that really happened. The second case was vastly different. The designated investigator was kind, impartial, and keenly aware of how to best way different kinds of evidence for credibility. Temperament is really important because more often than not, Title IX cases involve survivors of sexual misconduct. I would like to see AU revert back to a hearing panel, but do a better job of keeping prejudicial testimony, particularly past sexual history and allegations of prior bad acts, out of hearings.

Remember: although it is extremely important to hire an experienced Student Defense Attorney as early in Campus Disciplinary Proceedings as possible (as soon as a notice of charges is received, if not before), it is never too late. Whether a student has already been sanctioned and is in the appeals stage or even after an appeal has been denied, a lawyer with extensive experience representing and defending college students can offer invaluable help.

Jonathan Cook at New England Student Defense has represented over 150 students at Colleges and Universities nationwide from Yale University and Georgetown University to the University of Houston and Tulane University.  

These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.

Jonathan Cook