Understanding Title IX Investigations and the Role of Evidence Collection

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Title IX Investigations
and
Relevance
 
Sarah G. Mudd
David W. Parrott
February 18, 2021
 
What is the
Purpose of an
Investigation?
 
 
For the institution
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Sufficient to permit an impartial  decision-
maker to determine
Whether or not the reported sexual
harassment occurred
 
From Husch Blackwell Presentation 2020
 
What are the
General
Principles of an
Investigation?
 
 
Parties must have sufficient notice to prepare and
meaningfully participate
Investigator has an independent duty to collect
relevant inculpatory and exculpatory evidence
Parties have an equal opportunity to present their
statements, evidence, and to identify witnesses
Parties have equal opportunity to review and
comment on evidence developed
Investigation is evidence-gathering; not fact-finding
 
From Husch Blackwell Presentation 2020
 
Burden of
Gathering
Evidence
 
The burden of gathering evidence must remain
on schools not the parties 
106.45(b)(5)(i)
 
• Both parties have the right to provide evidence
  and witnesses (both fact and expert),
  
106.45(b)(5)(ii) (
but it is not their responsibility
  to do so)
 
 
Role of the
University; Goal
of the
Investigative
Mission
 
It is the school’s job to conduct the investigation, track
down and gather all of the evidence possible and
interview witnesses…
 
The school is neutral during this process, they are not
focusing on gathering evidence to prove respondent
“guilty” or to prove respondent is not responsible; they
are not “building a case”
 
The goal is a truth-seeking mission; gather everything
relevant so that a neutral decision maker can reach an
accurate determination based on the information
presented during a hearing.
 
Investigation
Requirements
Right to Inspect
Evidence
106.45(b)(5)(vi)
 
Schools must send the parties and their advisors:
ALL evidence directly related to the allegations
will include relevant and irrelevant evidence including that which
   would  otherwise be excluded under the rape shield protections
includes evidence the school will not use/rely in making a
decision
includes inculpatory or exculpatory evidence whether obtained
from a party or other source
electronic format or a hard copy, otherwise, method and format
of delivery up to school
parties must have at least 10 days to submit a written response
the investigator will consider parties input prior to completion of the
investigative report
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Final
Investigative
Report
106.45(b)(5)(vii)
 
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Right to
Discuss
Allegations and
Gather
Evidence
106.45(b)(5)(iii)
 
Schools must not restrict the ability of the
parties to discuss the allegations or
gather evidence (no gag orders)
Parties have the right to discuss the
allegations with anyone they choose with
limited exceptions:
 
no-contact directive
retaliatory manner
 
Standards of
Proof
 
The following are the most common standards of proof from lowest to highest. The standard that applies
depends on the type of case. The more serious the consequences, the higher the standard of proof is likely to
be. Potential loss of liberty (jail or prison), for example, involves a higher standard of proof than a lawsuit for
money.
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This standard is most commonly utilized prior to a criminal trial and are most often at issue when responding to
motions to suppress evidence. Preliminary hearings also involve a determination of probable cause and search
warrants are issued using a probable cause standard.
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This standard falls between probable cause and preponderance of the evidence and requires more than a
“mere scintilla of evidence.” Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” (Richardson v. Perales, 402 U.S. 389 (1971).)
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The preponderance-of-the-evidence standard is utilized for most civil lawsuits.  Preponderance of the evidence
is met if the decision-maker believes the evidence shows the person charged is more likely than not—more
than 50% likely to be—responsible.
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The clear-and-convincing-evidence standard goes by descriptions such as “clear, cogent, unequivocal,
satisfactory, convincing” evidence. “Clear and convincing” means the evidence is highly and substantially more
likely to be true than untrue; the decision-maker must have an abiding conviction that the truth of the factual
contention is highly probable. This standard requires that the evidence show that it is highly probable or
probably certain that the thing alleged has occurred.
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”Beyond a reasonable doubt” is the highest legal standard. This is the standard the U.S. Constitution requires
the government to meet in order to prove a defendant guilty of a crime. (In re Winship, 397 U.S. 358, 364
(1970).) The evidence must be so convincing that no reasonable person would ever question the defendant’s
guilt. The standard requires that the evidence offer no logical explanation or conclusion other than that the
defendant committed the crime. This highest of standards requires—after consideration of all facts—only one
logical conclusion: that the defendant is indeed guilty. Courts sometimes describe this level of confidence in a
verdict as a moral certainty.
 
Relevance
Defined in
Legal Terms
 
 
Relevance, in the common law of evidence,
is the tendency of a given item of evidence
to prove or disprove one of the legal
elements of the case, or to have probative
value to make one of the elements of the
case likelier or not. Probative is a term used
in law to signify "tending to prove".
 
Relevance
Defined in
General
Terms
 
 
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:
it has any tendency to make an allegation
more or less probable than it
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be
without the evidence; and
It is
 of consequence in determining the
action.
 
What is
Inculpatory
Evidence?
 
 
 
Information tending 
to 
support 
the 
proposition 
a
respondent 
committed 
sexual 
harassment 
as
alleged
 
Example:  
A  
text 
message 
sent 
the 
day 
after 
an 
incident
from 
the 
respondent
 
stating: 
“I 
never should  
have 
forced
you 
to 
have 
sex 
with
 
me  
after 
you
 
said
 
‘no.  ’
I’m 
so 
sorry 
for
what 
I
 
did.”
 
From Husch Blackwell Presentation 2020
 
What is
Exculpatory
Evidence?
 
 
Information tending to support that the
respondent did not commit sexual
harassment as alleged
 
Example:  A text message sent the day after an incident
from the complainant stating:
“I know that I said ‘yes’ at the time.  And I knew what I was
doing.  But now I feel like you just used me as a one-night-
stand.”
 
From Husch Blackwell Presentation 2020
 
Who
determines
the facts of
the case?
 
 
Investigator?
Comp
lainant?
Respondent?
Witnesses?
Investigative Re
port?
Police Report?
All of the above???
 
Who
determines
the facts of
the case in
criminal
cases?
 
 
Criminal:
The jury is the 
fact
-
finder
, but it is left to
"find" 
facts
 only from the evidence which is legally
admissible. The judge instructs the jury on the legal
principles or rules that must be followed in
weighing the 
facts
. If the jury finds the accused
guilty, it is up to the judge to sentence the
defendant.
 
 
www.americanbar.org
 
Who
determines
the facts of
the case in
civil cases?
 
 
Civil:
 
 
… the jury is the “fact finder” who decides which
party's version of the facts to believe and who
ultimately wins or loses.
 
 
 
www.civillawselfhelpcenter.org
 
Who
determines
the facts of
the case in
Title IX
Student
Conduct
cases?
 
Student Title IX case:
 
The hearing board or hearin
g officer
 are
the 
fact
-
finders
, but they are left to
"find" 
facts
 only from 
relevant
 evidence
presented in a hearing.
 
There are two individuals who determine
relevancy:  the investigator and the Chair of the
Hearing Board or Hearing Officer
 
Relevancy
Determination
Process
 
How to determine relevancy:
 
1. Review the evidence being offered
 
2. Consider the allegations of the Title IX sex
    harassment complaint
 
3. Ask yourself whether the evidence being
   offered has the potential to prove/explain or
   disprove an incident under investigation
 
Relevancy
Determination
Process:
 
Pro
Tip
 
The Releva
ncy Determination Process
allows/requires you to apply your education,
experience, training, and expertise to your
decision-making process. 
When asked in an OCR
Complaint Investigation or in litigation about
how you reached a conclusion about relevancy
(or anything else for that matter), your ability to
demonstrate that you were reasonable (that is,
you reasoned your way to a decision) by
applying your education, experience, training,
and expertise will serve as a protection for you.
 
Applying the
Relevancy
Determination
Process
Scenario A
 
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Applying the
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Scenario B
 
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Title IX
Rape Shield
Protections
 
 
 
Every relevance analysis in a Title IX Sex
Harassment investigation 
must
 also include
a consideration of Title IX's rape shield
protections.
 
Title IX
Rape Shield
Protections
Continued
 
 
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Title IX
Rape Shield
Exceptions
 
Rape Shield Exceptions: Evidence/questions
regarding a Complainant’s sexual predisposition or
prior sexual behavior may be deemed relevant
only if:
 
1.
The questions and evidence are offered to
prove that someone other than the Respondent
committed the conduct alleged by the
Complainant; or
2.
The questions and evidence relate to specific
incidents of the Complainant’s prior sexual
behavior with respect to the Respondent and
are offered to prove consent
 
Title IX
Rape Shield
Protections
Relevancy
Analysis
Process
 
Review the evidence being offered
 
Consider the allegations of the Title IX complaint
 
Ask yourself whether the evidence being offered
has the potential to prove/explain or disprove an
incident under investigation
 
Consider whether evidence falls into rape shield
protections or rape shield exceptions
 
Applying the
Title IX
Rape Shield
Protections
Relevancy
Analysis
Process
 
 
Applying the
Relevancy
Determination
Process
Scenario C
 
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Applying the
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Determination
Process
Scenario D
 
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Why Does
Relevance
Matter?
 
The purpose of having restrictions
placed on evidence that can be
introduced is to prevent the fact finders
from making decisions based on
factors other than what is relevant. The
goal is a truth-seeking mission; gather
everything relevant so that a neutral
decision maker can reach an accurate
determination based on the information
presented during a hearing.
 
Summary
 
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106.45(b)(5)(i)
 
It is the school’s job to conduct the investigation, track down and
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The goal is a truth-seeking mission; gather everything relevant so that
a neutral decision maker can reach an accurate determination based
on the information presented during a hearing.
 
Evidence is relevant if it has any tendency to make an allegation
more or less probable than it would be without the evidence; and
   it is of consequence in determining the action.
 
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There are two individuals who determine  relevancy:  the investigator
and the Chair of the Hearing Board or Hearing Officer.
 
Determine relevancy by reviewing 
the evidence being offered; .
considering the allegations of the Title IX sex harassment complaint;
   
and asking  yourself whether the evidence being offered has the
   
potential to prove/explain or disprove an incident under investigation.
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Reason your way to a relevancy decision by 
applying your education,
experience, training, and expertise 
to your decision-making process.
.
 
 
Thank You
 
          Thank You!
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The purpose of a Title IX investigation is to collect relevant evidence, both inculpatory and exculpatory, to allow for impartial decision-making regarding reported sexual harassment cases. Parties involved must receive sufficient notice and have opportunities to participate, present statements, and review evidence. The burden of evidence gathering lies on schools, not the parties, with the goal being a truth-seeking mission for a neutral decision-maker to reach an accurate determination.


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  1. Title IX Investigations and Relevance Sarah G. Mudd David W. Parrott February 18, 2021

  2. For the institution To collect relevant inculpatory and exculpatory evidence Sufficient to permit an impartial decision- maker to determine Whether or not the reported sexual harassment occurred What is the Purpose of an Investigation? From Husch Blackwell Presentation 2020

  3. Parties must have sufficient notice to prepare and meaningfully participate Investigator has an independent duty to collect relevant inculpatory and exculpatory evidence Parties have an equal opportunity to present their statements, evidence, and to identify witnesses Parties have equal opportunity to review and comment on evidence developed Investigation is evidence-gathering; not fact-finding What are the General Principles of an Investigation? From Husch Blackwell Presentation 2020

  4. The burden of gathering evidence must remain on schools not the parties 106.45(b)(5)(i) Both parties have the right to provide evidence and witnesses (both fact and expert), 106.45(b)(5)(ii) (but it is not their responsibility to do so) Burden of Gathering Evidence

  5. It is the schools job to conduct the investigation, track down and gather all of the evidence possible and interview witnesses Role of the University; Goal of the Investigative Mission The school is neutral during this process, they are not focusing on gathering evidence to prove respondent guilty or to prove respondent is not responsible; they are not building a case The goal is a truth-seeking mission; gather everything relevant so that a neutral decision maker can reach an accurate determination based on the information presented during a hearing.

  6. Schools must send the parties and their advisors: ALL evidence directly related to the allegations will include relevant and irrelevant evidence including that which would otherwise be excluded under the rape shield protections includes evidence the school will not use/rely in making a decision includes inculpatory or exculpatory evidence whether obtained from a party or other source electronic format or a hard copy, otherwise, method and format of delivery up to school Investigation Requirements Right to Inspect Evidence 106.45(b)(5)(vi) parties must have at least 10 days to submit a written response the investigator will consider parties input prior to completion of the investigative report Relevant evidence must be made available at hearing

  7. Create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing (if a hearing is required under this section or otherwise provided) or other time of determination regarding responsibility, send to each party and the party s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. Final Investigative Report 106.45(b)(5)(vii)

  8. Schools must not restrict the ability of the parties to discuss the allegations or gather evidence (no gag orders) Parties have the right to discuss the allegations with anyone they choose with limited exceptions: Right to Discuss Allegations and Gather Evidence 106.45(b)(5)(iii) no-contact directive retaliatory manner

  9. The following are the most common standards of proof from lowest to highest. The standard that applies depends on the type of case. The more serious the consequences, the higher the standard of proof is likely to be. Potential loss of liberty (jail or prison), for example, involves a higher standard of proof than a lawsuit for money. Reasonable Suspicion and Probable Cause This standard is most commonly utilized prior to a criminal trial and are most often at issue when responding to motions to suppress evidence. Preliminary hearings also involve a determination of probable cause and search warrants are issued using a probable cause standard. Substantial Evidence This standard falls between probable cause and preponderance of the evidence and requires more than a mere scintilla of evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. (Richardson v. Perales, 402 U.S. 389 (1971).) Standards of Proof Preponderance of the Evidence The preponderance-of-the-evidence standard is utilized for most civil lawsuits. Preponderance of the evidence is met if the decision-maker believes the evidence shows the person charged is more likely than not more than 50% likely to be responsible. Clear and Convincing Evidence The clear-and-convincing-evidence standard goes by descriptions such as clear, cogent, unequivocal, satisfactory, convincing evidence. Clear and convincing means the evidence is highly and substantially more likely to be true than untrue; the decision-maker must have an abiding conviction that the truth of the factual contention is highly probable. This standard requires that the evidence show that it is highly probable or probably certain that the thing alleged has occurred. Beyond a Reasonable Doubt Beyond a reasonable doubt is the highest legal standard. This is the standard the U.S. Constitution requires the government to meet in order to prove a defendant guilty of a crime. (In re Winship, 397 U.S. 358, 364 (1970).) The evidence must be so convincing that no reasonable person would ever question the defendant s guilt. The standard requires that the evidence offer no logical explanation or conclusion other than that the defendant committed the crime. This highest of standards requires after consideration of all facts only one logical conclusion: that the defendant is indeed guilty. Courts sometimes describe this level of confidence in a verdict as a moral certainty.

  10. Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove". Relevance Defined in Legal Terms

  11. Evidence is relevant if: it has any tendency to make an allegation more or less probable than it would be without the evidence; and It is of consequence in determining the action. Relevance Defined in General Terms

  12. Information tending to support the proposition a respondent committed sexual harassment as alleged What is Inculpatory Evidence? Example: A text message sent the day after an incident from the respondent stating: I never should have forced you to have sex withme after yousaid no. I m so sorry for what Idid. From Husch Blackwell Presentation 2020

  13. Information tending to support that the respondent did not commit sexual harassment as alleged What is Exculpatory Evidence? Example: A text message sent the day after an incident from the complainant stating: I know that I said yes at the time. And I knew what I was doing. But now I feel like you just used me as a one-night- stand. From Husch Blackwell Presentation 2020

  14. Investigator? Complainant? Respondent? Witnesses? Investigative Report? Police Report? All of the above??? Who determines the facts of the case?

  15. Criminal: The jury is the fact-finder, but it is left to "find" facts only from the evidence which is legally admissible. The judge instructs the jury on the legal principles or rules that must be followed in weighing the facts. If the jury finds the accused guilty, it is up to the judge to sentence the defendant. Who determines the facts of the case in criminal cases? www.americanbar.org

  16. Civil: Who determines the facts of the case in civil cases? the jury is the fact finder who decides which party's version of the facts to believe and who ultimately wins or loses. www.civillawselfhelpcenter.org

  17. Student Title IX case: Who determines the facts of the case in Title IX Student Conduct cases? The hearing board or hearing officer are the fact-finders, but they are left to "find" facts only from relevant evidence presented in a hearing. There are two individuals who determine relevancy: the investigator and the Chair of the Hearing Board or Hearing Officer

  18. Relevancy Determination Process How to determine relevancy: 1. Review the evidence being offered 2. Consider the allegations of the Title IX sex harassment complaint 3. Ask yourself whether the evidence being offered has the potential to prove/explain or disprove an incident under investigation

  19. The Relevancy Determination Process allows/requires you to apply your education, experience, training, and expertise to your decision-making process. When asked in an OCR Complaint Investigation or in litigation about how you reached a conclusion about relevancy (or anything else for that matter), your ability to demonstrate that you were reasonable (that is, you reasoned your way to a decision) by applying your education, experience, training, and expertise will serve as a protection for you. Relevancy Determination Process: Pro Tip

  20. Initial Relevancy Analysis of Scenario A Step 1 (review the evidence): Applying the Relevancy Determination Process Step 2 (consider the Title IX complaint): Step 3 (assess whether evidence potentially proves/disproves an incident of the Title IX Complaint): Scenario A

  21. Initial Relevancy Analysis of Scenario B Step 1 (review the evidence): Applying the Relevancy Determination Process Step 2 (consider the Title IX complaint): Step 3 (assess whether evidence potentially proves/disproves an incident of the Title IX Complaint): Scenario B

  22. Title IX Rape Shield Protections Every relevance analysis in a Title IX Sex Harassment investigation must also include a consideration of Title IX's rape shield protections.

  23. Title IX Rape Shield Protections Continued Title IX's rape shield protections provide that questions and/or evidence about the Complainant s sexual predisposition or prior sexual behavior are presumptively not relevant, unless they are offered under two limited exceptions.

  24. Rape Shield Exceptions: Evidence/questions regarding a Complainant s sexual predisposition or prior sexual behavior may be deemed relevant only if: Title IX Rape Shield Exceptions 1. The questions and evidence are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant; or 2. The questions and evidence relate to specific incidents of the Complainant s prior sexual behavior with respect to the Respondent and are offered to prove consent

  25. Review the evidence being offered Title IX Rape Shield Protections Relevancy Analysis Process Consider the allegations of the Title IX complaint Ask yourself whether the evidence being offered has the potential to prove/explain or disprove an incident under investigation Consider whether evidence falls into rape shield protections or rape shield exceptions

  26. Applying the Title IX Rape Shield Protections Relevancy Analysis Process

  27. Initial Relevancy Analysis of Scenario C Step 1 (review the evidence): Applying the Relevancy Determination Process Step 2 (consider the Title IX complaint): Step 3 (assess whether evidence potentially proves/disproves an incident of the Title IX Complaint): Scenario C Step 4 (assess whether evidence meets exceptions under Rape Shield):

  28. Initial Relevancy Analysis of Scenario D Step 1 (review the evidence): Applying the Relevancy Determination Process Step 2 (consider the Title IX complaint): Step 3 (assess whether evidence potentially proves/disproves an incident of the Title IX Complaint): Scenario D Step 4 (assess whether evidence meets exceptions under Rape Shield):

  29. The purpose of having restrictions placed on evidence that can be introduced is to prevent the fact finders from making decisions based on factors other than what is relevant. The goal is a truth-seeking mission; gather everything relevant so that a neutral decision maker can reach an accurate determination based on the information presented during a hearing. Why Does Relevance Matter?

  30. The purpose of an investigation is to collect relevant inculpatory and exculpatory evidence sufficient to permit an impartial decision-maker to determine whether or not the reported sexual harassment occurred. The burden of gathering evidence must remain on schools not the parties 106.45(b)(5)(i) Summary It is the school s job to conduct the investigation, track down and gather all of the evidence possible and interview witnesses The goal is a truth-seeking mission; gather everything relevant so that a neutral decision maker can reach an accurate determination based on the information presented during a hearing. Evidence is relevant if it has any tendency to make an allegation more or less probable than it would be without the evidence; and it is of consequence in determining the action.

  31. The hearing board or hearing officer are the fact-finders, but they are left to "find" facts only from relevant evidence presented in a hearing. There are two individuals who determine relevancy: the investigator and the Chair of the Hearing Board or Hearing Officer. Determine relevancy by reviewing the evidence being offered; . considering the allegations of the Title IX sex harassment complaint; and asking yourself whether the evidence being offered has the potential to prove/explain or disprove an incident under investigation. Summary- Continued Title IX's rape shield protections provide that questions and/or evidence about the Complainant s sexual predisposition or prior sexual behavior are presumptively not relevant, unless they are offered under two limited exceptions. Reason your way to a relevancy decision by applying your education, experience, training, and expertise to your decision-making process..

  32. Thank You!

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