We know that a decision that is biased, arbitrary, or capricious will not meet the test of fundamental fairness. We know that procedures and decisions must be reasonable. What is too often left unsaid is that there will be instances in which the admission and consideration of irrelevant evidence, hearsay evidence, illegally obtained evidence, or evidence lacking in credibility will violate fundamental fairness. There are two basic rules of evidence that should be observed in the campus hearing: the rule of relevance and the rule of credibility of witnesses/testimony (Sokolow, 2004).
The Rule of Relevance:
Judicial decision-makers should only deliberate upon evidence that is relevant to the issue being tried in the hearing. Otherwise, the hearing could degenerate into a confusing barrage of unrelated facts and character assassination. How do you recognize irrelevance when you hear it? To test for relevance, ask yourself, “Is the fact or information that is being offered likely to prove/disprove an issue in the hearing?” If it is likely to lead to proof/disproof, it is relevant. If it is not likely to do so, it should be inadmissible (Sokolow, 2004). Test your familiarity with this concept in the following examples:
- Is the fact that a boyfriend failed to heed a campus no-contact order relevant in a later hearing in which he is charged by his girlfriend (who requested the order) with a violent attack?
Yes. It tends to prove that he had violent inclinations toward her.
- The complainant wants to testify that on the night of the sexual assault, she observed stacks of pornographic magazines, centerfold posters on the walls, and pornographic DVDs on the bookshelf of the respondent’s room. Is this relevant?
No. The existence of pornography does not make it more or less likely that there was or was not consensual sex.
Variation: What if the complainant wants to testify that after the assault, the respondent went to the bathroom to take a shower. At that time, she observed stacks of pornographic magazines, centerfold posters on the walls, and pornographic DVDs on the bookshelf and around the DVD player in the respondent’s dorm room. While the respondent was in the bathroom, the complainant played the DVD that was in the DVD player. The complainant wants to testify that the way the respondent raped her was identical to a rape depicted on that DVD. Is this relevant?
Yes. At this point, pornography becomes relevant. If the respondent re-enacted a scene he had seen on a DVD, it might help to establish that the respondent planned the assault, which is indirectly, but clearly related to the issue of consent.
- In the same case, the roommate of the complainant wants to testify that since the assault, the complainant has suffered from terrible nocturnal nightmares, often waking up screaming and that complainant never acted this way before the incident in question. Is this relevant?
Yes. The matter at issue in the case is whether the complainant is suffering from rape trauma syndrome. This testimony does not directly prove consent, if that is the matter in issue, but it may help to contribute to evidence to that determination. This information is relevant to whether or not the complainant is suffering from rape trauma syndrome. If she is, this testimony is evidence that the complainant is suffering from a trauma that may have been triggered by an assault. Testimony from a treating counselor or psychologist might be used to confirm this.
- Is what the complainant was wearing on the night of the alleged assault relevant?
No. What the complainant was wearing has no relevance.
- Is it relevant who or how many other people the complainant has had sex with in the past?
No. Sexual history of the complainant has nothing to do with the issue of whether the accused had her consent on the date of the incident in question. In addition, whether the victim has ever consensually slept with the accused before is not relevant to whether there was consent on the date of the incident in question.
The Rule of Credibility:
This rule of evidence requires the judicial body to consider only evidence that is credible, and from credible sources. Included under the rubric of credible evidence is the interrelation of credibility with evidence that contains rumor, conjecture, and hearsay. Best practices suggest that such evidence should not be considered by the judicial body because it can prejudice the fairness of the process. Rumors should not be admissible because be definition they lack a factual basis. Conjecture involves guess work by the witness, and the offering of an opinion that the speaker may not be qualified to make. Hearsay is, for the purpose of a campus hearing, testimony of suspect origin because it is not firsthand, or because the speaker lacks personal knowledge of the circumstances of the statement. A judicial body will recognize rumor, conjecture, or hearsay when a witness uses words like, “I heard that,” “It’s my opinion that,” “I guess that,” or “It seems that,” among others (Sokolow, 2004). Test your familiarity with this concept in the following examples:
- The complainant wants to testify that she has heard that the respondent has raped other women. May she?
No. This is hearsay/rumor and ahs no basis for credibility. It casts doubt on the character of the respondent without sufficient evidence to support it.
- The respondent’s fraternity brother wants to testify that he has heard around that the complainant is “any easy lay.” May he?
No. This is also based on hearsay/rumor AND is it irrelevant.
- The respondent wants to testify that he heard that the complainant is only pressing charges against him because her parents are upset that she is not a virgin anymore. May he?
No. There is nothing to convince us of the credibility of this information. Secondhand information should not be considered unless other evidence and circumstances lend credence to the hearsay evidence that persuades you that there is good reason to believe the rumor. Too many times, evidence of this nature finds its way into campus hearings and colors the decision-makers process. Judicial decision-makers must strive to minimize this type of collateral dubious evidence.