Background
The independent witness is a significant overhead associated with the Primary Hearing and historically has had marginal value. Far better is to stage the hearing via Zoom and let the video recording play the role of the independent witness. NOTE: The job of the independent witness is to take sufficiently detailed notes of the hearing so that subsequent disputes as to what transpired can be resolved. The independent witness is different from other witnesses that the student and faculty member may bring to the hearing to support their side of the case.
Details to think through:
- Should the Zoom approach be an option? Some faculty may prefer in-person when possible.
- Maintaining confidentiality requires exercising great care with the audio/video record.
- Is audio “good enough”?
Code Changes…
Current Text |
Proposed Text |
| 3. Composition. At the primary hearing the following shall be present: the faculty member concerned, the student in question, and a third-party independent witness. The independent witness shall be a faculty member or a student appointed by the Hearing Board Chairperson or the chairperson of the faculty member’s department. The student may also bring to the hearing an advisor and additional witnesses to testify to his or her innocence. | 3. Composition. The Primary Hearing shall be video recorded and archived by the instructor’s college. [Prose about how long it is kept.] The faculty member concerned and the student in question shall be present. The student may also bring to the hearing an advisor and additional witnesses to testify to his or her innocence. |
| (b) The function of the independent witness is to observe the proceedings impartially, and in the event of an appeal from the judgment of the faculty member, be prepared to testify as to the procedures followed. | (b) The video recording can be used during an appeal should there be questions about the conduct of the Primary Hearing or its contents. |
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COMMENTING CLOSED
I agree with #6 comment as it expresses my view exactly.
The idea of whether it might be a good idea to record Primary Hearings, independent of any “Independent Witness overhead,” arose some years ago. Below are a couple of things I recall from EPC discussions. The end result was that EPC decided then that recordings’ potential dangers outweighed their potential value. That’s not to say that present circumstances would lead to the same conclusion.
First of all, the Code isn’t a legal document, and the procedures it mandates aren’t legal procedures. It exists to educate and at the same time to protect the soundness of our noble academic enterprise. Does introducing recordings into the mix inch us into “legalistic” territory? For example:
1.. Is the AIHB at an appeal hearing entitled to hear the Primary Hearing recording? If so or if not, whose permission is required? Can a faculty complainant or accused student demand that the recording be played at the appeal hearing or veto its being played?
2. Might a “creative plaintiff’s attorney” later raise arguments about such a recording — chain of custody, authentication (e.g. Who made this recording? Who shepherded it to its archival home? What authority figure certified its authenticity? Was that figure present when the recording was made?), etc.
3. Might such an attorney cite a tiny recorded misstep on the part of the faculty complainant as grounds for overturning a case or worse? Might things ramify? Might the faculty member come under legal fire? Does this impose unreasonable expectations of legal savvy on a faculty complainant’s part?
4. If we record Primary Hearings, do we record appeal hearings or allow principals to a case to demand that such a recording be made?
The Office of the Judicial Codes Counselor supports the proposed change allowing for a video recording to take the place of an independent witness. As long as there is a mechanism by which questions or conflicting accounts about what occurred at the primary hearing can be fairly resolved, we think students will be able to benefit from a fair process.
Agree that having an independent witness as part of a Zoom process should be required, and their selection and role should be specified as it is currently
I support using Zoom as an option and having an independent witness as an option on Zoom.
I support using Zoom as an option and having an independent witness as an option on Zoom.
this will the the 3rd time I have tried to answer this using this program! I think there should be an independent witness even if on zoom to balance the situation and encourage the most civil representation of the case on both sides.
This sounds fine, perhaps keeping in the option of having a witness available on Zoom if available/preferred.