Public Policy Sources 25:
Conclusions

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One possible benefit from this study is to learn not to make the sort of mistakes that were made in the Donnelly case. Accordingly, I am setting forth some basic principles that could prevent future disasters. This is not a full prescription, but a list of necessary safeguards suggested by the Donnelly case. This list could be useful in evaluating existing policies at many universities.

Basic principles

1. A basic premise of all discipline policies should be that protection of the rights of accused persons is a core value, not to be subordinated to other values.

2. The scope of policies should be well-defined and properly limited, with personal matters and criminal offenses left to the police and the courts.

3. Individual justice should be paramount and must not be corrupted to "send messages" or advance social agendas.

4. The policy should recognize that false accusations are both possible and dangerous and need to be discouraged with appropriate deterrents for false charges.

5. Administrator responsibilities for due process should be defined with appropriate penalties for malfeasance, including severe penalties for wilful malfeasance.

6. Implementation of severe punishments (e.g., suspension or dismissal) should require high standards of proof, such as clear and convincing evidence.

7. Standards and procedures should protect defendants from prosecutorial misconduct. This probably implies strict limitations on private prosecutions.

Selection and training of Panel

1. Panels should be selected according to procedures that do not select for particular ideologies, either through deliberate choice or through self-selection.

2. Selection for competency should be encouraged, provided that competency is defined in an ideologically neutral way.

3. Prospective panelists should successfully complete a training course on the principles of evidence.

4. The training should be ideologically neutral with properly mixed examples and viewpoints.

Preliminary arrangements

1. Charges must be set in advance, with no significant changes or new charges allowed.

2. Rulings on such matters as jurisdiction, adequacy of allegation, and timeliness should be made in advance and in writing by an independent legal authority.

3. The Panel deciding the case must be given a clear mandate as to what must be proved in order to find the defendant guilty.

4. The basic scope of the inquiry must be mandated according to policy, not left to the tribunal.

5. The tribunal must be clearly instructed that the burden of proof is on the accusers, and that the benefit of the doubt goes to the accused.

Trial or hearing procedures

1. Sound rules of evidence should be followed. Standards should be close to those used in courts, or at least at the same level used in serious cases of labour grievance arbitration.

2. Prejudicial material should be strictly excluded.

3. Opinions of witnesses as primary evidence should be excluded (except for properly qualified experts).

4. There should be penalties for false testimony, which are made known to all witnesses. Further, it should be a duty of the University to proceed against false witnesses.

5. Hearings should be recorded and transcribed with transcripts freely available to defendants appealing adverse findings.

6. Accusing witnesses should be strictly barred from having access to or listening to each other’s testimony.

7. In any trial in absentia a "friend of the tribunal" should be appointed to act for the defendant.

8. Evidence on alleged suffering of complaining witnesses should be excluded from the trial of the accused. (If necessary for damage awards, a later hearing should be held.)

Decision and writing of report

1. The Panel must not communicate with either party or administration officials or lawyers except through written communications supplied to both parties.

2. The actual scope of the investigation must be clearly stated, with all documents used properly listed, and any important limitations properly noted.

3. The Report must discuss all significant issues and give adequate reasons for the opinions given. This includes adequate treatment of any challenges to the views taken.

4. The Report must be linked to the evidence with appropriate citations.

Review standards

1. Findings of innocence by the Panel should be final; further complaints by accusers should be directed to the University.

2. The review must be independent in appearance and fact, which among other things implies lack of previous involvement in the case.

3. If the reviewer is assisted by a lawyer, the lawyer must be identified and must meet all independence standards required of the reviewer.

4. Review standards must be clearly stated and followed. Limitations must be known and impose acceptable risk.

5. The Review must include some checking of accuracy of the Report’s representations of evidence.

6. In replying to the Panel Report, the rights of the accused should be at least equal to the accusers, and perhaps greater since if item 1 in this list is followed, the accused is the appellant.

7. Significant problems discovered in the review should be adequately investigated, even if it means that more elaborate procedures are needed.

8. In any key witness case, the testimony and representations of the key witness should be carefully reviewed for consistency and plausibility.

Review report standards

1. At a minimum, the Review should express and support opinions on the scope of the review, the competency of the procedures, the fairness of the procedures, and the adequacy of the conclusions.

2. Any substantive questions raised by an appellant must be candidly, fairly, and adequately answered.

3. Even when accepting the Report on balance, the Reviewer should candidly discuss any significant known problems with the Report.

4. Rejection of findings of guilt should be regarded as a legitimate event, provided adequate reasons are given. Such rejection should never be equated with being soft on harassment.

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