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Proving a negative, Part II: Miami University Hearings

Chapter 2.1 of Miami University's Code of Student Conduct ("the Code") explains the standard used by the University to determine if an accused student is responsible for violating the Code. According to the Code, the standard of "preponderance" is satisfied "by the information that has the most convincing force," and that a student will be found responsible if he or she admits responsibility or if the information provided to the University demonstrates "by a preponderance of the available information that the person is responsible."

But the Code never states who bears the burden of proof. Is it the accuser or the accused? While the Code does state that a "presumption of responsibility should not be made as the result of allegations," the Code does not provide a presumption of innocence or "no responsibility" for the accused student. Instead the Code says the University should be neutral as to the level of responsibility of the accused student for the alleged misconduct. This is a very important distinction from the presumption of innocence that exists in American law. 

First, the Code does not prohibit Miami disciplinary hearing officers from assuming the accused student is responsible. The Code merely says that "a presumption of responsibility should not be made..."; in other words, the Code does not say that the hearing officers shall not presume responsibility. Rather the Code merely suggests that hearing officers not presume responsibility based on allegations. This is a stark contrast to the legal presumption that every defendant is not guilty or not liable until proven otherwise.

Second, because of the order of events in a disciplinary proceeding, the accuser "speaks" first (e.g. a police report is submitted describing an arrest, a complaint is read onto the record, a title IX complainant reads a narrative and offers witnesses, etc.), meaning that the hearing officers hear the side of the story most adverse to the accused student first. This creates a burden upon the accused student to prove that he or she is not responsible. Remember the standard at the hearing is "the information that has the most convincing force." So, unless the accused student can offer evidence (through documents and/or witness testimony) that has more credibility-or "more convincing force"-than the accuser's testimony, than the accused student will be found responsible. In other words, the result of the order of events at the hearing changes the burden to prove an accused is responsible into a burden for the accused to prove he or she did not violate any rules. It flips the presumption of innocence principle on its head.

Finally, when you the lack of a "presumption of no responsibility" for the accused student and the order of the proceedings, it creates a hearing that weighs in the favor of the accuser or complainant. Without a requirement for the accuser or complainant to prove that his or her allegations are true-and more importantly, overcome a presumption that the accused is not responsible for any violations-the accuser or complainant must only provide "information that has the most convincing force" and then wait to see if the accused can prove a negative-that he or she did not violate the rules despite the accuser's evidence or statements to the contrary. There is a substantial and very important difference between requiring the accuser to overcome a presumption that the accused did nothing wrong, and simply providing "information that has the most convincing force" as allowed under the Code.

And without the protections of the rules of evidence or legally-trained hearing officers, an accuser can offer testimony and evidence that would never be allowed to be considered by a jury or judge in a courtroom. In short, while a very structured procedure exists for disciplinary hearings, that does not mean that the procedure is simple to navigate, that it is created in a way that is fair, or that it relies on the same basic legal principles that have guided our courts for centuries.

Handling a university disciplinary hearing without the advice from counsel that is intimately familiar with the proceedings and how best to prepare a case to overcome the burden on the accused is a very risky decision. With immediate and long-term threats to a student's ability to stay on campus and/or complete his or her degree, university hearings should be taken very seriously. Consult with an attorney that has significant experience in handling University disciplinary procedures. 

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