UA Codes and Judicial Committee

Current practice in Krause Report

Stated as such.

Proposed practice in Krause Report

Phrase is a criminal law concept that is not appropriate to campus disciplinary proceedings. All campus members are obligated to cooperate with Office of Student Discipline. Cases may be decided on existing evidence if accused does not appear or answer.

Why should the accused be obligated to provide evidence against himself? Doesn’t the burden of proof lie with the accuser or prosecuting authority?

…can we legislate character? If so, how broad should be the responsibility to do the right thing?

Just how would this policy work? Does the Office of Student Discipline demand “CONFESS! CONFESS! CONFESS!” like the Spanish Inquisition?

Let’s suppose member of the campus declines to answer. “Cases may be decided on existing evidence if accused does not appear or answer. “

How is that different from the current policy of a right to remain silent? Are there extra penalties for failing to cooperate with the authorities?

This policy is requiring people to prove their innocence or to provide testimony for their accusers.

I once was proud of having gone to Cornell, but no longer.

I agree with the proposed changes set forth in the Krause report regarding ‘right to remain silent’. The new system is to be rooted in education. As such, its important that ‘the accused’ participate actively in the proceedings, input his/her opinion when necessary, and answer questions. “Pleading the fifth” seems contrary to the goals of an education-based judicial system. Input from the accused is necessary.

Removing the right to remain silent opens the door to coercive techniques. For example, the Office of Student Discipline could threaten to expell a student if s/he does not confess. That could cause an innocent student to give a false confession or falsely implicate others.

Even if the Office does not have the power to carry out such a threat, the student may not know that and still be intimidated into lying in order to accept a lesser punishment rather than risk a larger one.

Regardless of Cornell’s viewpoint on how likely that scenario is, the fact that it is possible makes the proposed changes unacceptable. Cornell may have good intentions today, but stripping individual rights is not the answer - it can lead to abuses tomorrow.

Further, I don’t know whether there is a Miranda-like warning in place today, but there should be, to prevent the coersive techniques described above.

While I agree that input from the accused is desirable for the sake of shedding light on whatever the issue in question, I fail to see how something that forms a cornerstone of the criminal law can be ‘not appropriate’ in campus disciplinary proceedings. I interpret this as an utterly despicable attempt of the authorities to install backdoors for coercion that have no place in any legal system, campus or otherwise.

Moreover, the proposed change fails to set forth the sanctions to expect from refusing to comply. The addendum that ‘Cases may be decided on existing evidence if accused does not appear or answer’ is completely superflous as well. On what other grounds than existing evidence should a case be decided? Hopefully not the fact that someone refused to comply.

I don’t believe the University should make any rule which contradicts the US Constitution or Bill of Rights. Obliging anyone to provide evidence against themselves seems a clear violation of any US citizen’s rights on US soil; I also feel we should extend that right to any non-US citizen who is a member of the Cornell community.

The right to remain silent is not “a criminal law concept”, it is a foundational human right enshrined in the Constitution. It is not restricted to citizens.

It is not acceptable for Cornell to set such a policy. I doubt that, on the statutory side, it is even enforceable (translation: it renders the university open to legal challenges). However, even on the private side, it contravenes the principles that we claim to stand for as a society.

I won’t repeat the points made by the previous three commentators, but I agree with them.

Suppose someone confesses to a crime while under the impression that they do not have the right to remain silent. Can the DA then subpoena Cornell for the minutes of the proceeding and use this confession against the accused in a court of law? In other words, could the procedures outlined in the Krause report lead to a backdoor loss of the Fifth Amendment rights in criminal court?

In reviewing the comments made in the Krause report, I feel that they are very sensible overall. Students are members of the Cornell community by choice. They should not simply have the ability to not show their faces when accused in order to prevent the trial from occuring. The changes to the code of conduct actually more reflect real law. The comments in the Krause report do not intend to prevent the student from being able to withhold their guilt, but force them to show up to trial.

However, again, I find that the Krause report does not do nearly enough research into the matter, to find ways in which the ruling can be abused. The common argument made here holds significant water. Comments made in the proceeding can be used by the DA in a real criminal court. This does not seem just, especially when the student is forced to go to a proceeding WITHOUT representation, a right at least afforded to them in the criminal court. This change, especially if taken out of its original context, results in a backdoor loss of Fifth Amendment rights and loss of the right to representation in a real court of law. Not only is that a moral problem, but no doubt will create significant legal trouble for the University as well.

I think, in order to alleviate this problem, the Krause report recommendations should be made but with a neccesary addendum that prevents the results and proceedings of the campus JA to be used in criminal court. Unfortunately, this may be outside the abilities of the University, but at the very least needs to be considered before implementation of the Krause report’s terminology. To do any less would only invite future trouble onto the University at a later date.

Furthermore, I want to reiterate the importance of the two limitations the Krause report effects on this change. One, that no inference of guilt can be drawn from the accused’s refusal to speak. And two, and that students can not be forced to speak against their will. An improperly worded change in the doctrine can very easily lead to both those situations occuring, and great attention must be made sure that this does not happen

Just simply to continue with my last point, the phrase ‘obligated to cooperate’ can easily be abused by a campus official to force the accused to speak against their will. This will most certainly come back to hurt the University later when a student is coerced by either the JA or campus police under guise of this new terminology. Again, much more research needs to be done before implementing the changes listed in the Krause report.

This change is one of a number of proposed changes all designed to make it easier to find a person guilty of alleged infractions of the Code. The intent is to reduce individual rights in favor of community rights. As others have noted, the Krause proposal conflicts with a right in the U.S. Constitution. So there is a very fundamental issue here that all of us should consider carefully.

This issue becomes all the more important when the changes intended to make Campus Code judgments ahead of criminal or civil trials. Currently we wait until the civil or criminal judgments are made for the specific purpose of limiting jeopardy of a Cornell community member charged with both campus and off-campus violations. The changes proposed by the administration, including the requirement to cooperate with campus judicial processes, will increase the risks faced by members of the Cornell community.

I find myself in hearty agreement with Brian Chabot (among others): “This change is one of a number of proposed changes all designed to make it easier to find a person guilty of alleged infractions of the Code … As others have noted, the Krause proposal conflicts with a right in the U.S. Constitution. So there is a very fundamental issue here that all of us should consider carefully.” The proposed change introduces great potential for abuse.

I strongly favor due process like most if not all of the posters here. I do see tough choices ahead.

Sachin Desai has an excellent point. The three issues of the right to remain silent, attorney representation at University hearings and delaying said hearings pending civil or criminal court judgments are closely linked.

Let’s keep in mind that the courts probably can and will force Cornell to turn over records of hearing proceedings, disciplinary conferences, etc. Any student subject to a disciplinary proceeding, knowing that civil and/or criminal proceedings can be pending, but that the University proceedings will not be delayed, faces a serious dilemma. S/he can refuse to participate, participate fully or participate only with an attorney’s on-the-spot advice.

Keep in mind that right now Ms. Krause is also recommending that delaying university proceedings pending civil or criminal proceedings become the exception, not the norm as it is now.

Refusing to participate will make it more likely the student will be held responsible by the university. The proceedings will go on without the respondent’s side of the story; in fact, the hearing body may even be more likely to believe the complainant since its members may presume that a respondent who doesn’t participate must have been responsible. And unless there is a specific right to remain silent (with or without such a presumption), the respondent may even also be sanctioned for another offense: failure to comply.

On the other hand, if s/he participates fully, s/he does so with the knowledge that anything s/he says may be used against him/her later on, in a civil or criminal trial.

However, if the accused has an attorney with him/her at a disciplinary meeting or hearing, s/he may feel better able to participate, make his/her side of the story heard and help the university judicial system do its job. The attorney will be able to advise the student on how best to participate without jeopardizing his/her standing in court later.

In fact, if the offense was a small one which may be related to a larger crime for which the student could be tried later, the attorney could even encourage the student (if responsible, of course) to accept responsibility and learn and grow from the experience.

For example, if a student is accused of causing a disturbance stemming from a loud public argument, and that argument might have included bias remarks, s/he can accept responsibility for the disturbance itself, without admitting to specific bias remarks. Without an attorney, the student may not have felt confident enough to participate in the process at all.

I do not agree with the idea of only permitting students who have already been arrested to have attorneys as advisors. A student could have good reason to fear a pending criminal - or civil - case even before being arrested. Especially serious cases can take a long time to proceed to an indictment or arrest - much more time than a university can take to start disciplinary proceedings.

I agree with Ms. Krause that the role of an advisor, attorney or otherwise, should be limited. I see no reason why an attorney or other advisor should question witnesses, address the hearing body, etc., in place of the student. The advisor should be there to give moral support, help the respondent focus on the proceedings and advise him/her on how best to proceed with regard to the university situation and possible subsequent trials.

If these protections are kept in place, I would in that case support expediting university proceedings even pending civil or criminal charges.

I support Ms. Krause’s other recommendations on the right to remain silent: that silence should not be grounds for presuming responsibility, and that if a respondent does not appear for a hearing, it should go on in his/her absence. (Though of course exceptions should be made to the latter rule on a case-by-case basis, such as for an emergency that keeps the respondent away.)

I also believe that students should be required to at least meet with the Judicial Administrator or similar official when charges are first brought, provided that the obligation is specifically worded to permit the student to do no more than indicate s/he has been informed about the procedures (eg, his/her rights, what will happen next and when, etc).

Last but not least, Ms. Krause says that arguably, permitting attorneys as advisors could give affluent respondents an unfair advantage over poorer respondents. By that logic, we shouldn’t allow criminal or civil defendants to have attorneys either.

In any case, that is balderdash: different respondents aren’t competing with each other, not to mention the fact that attorneys can always offer their services pro bono to poorer students facing university proceedings.

More broadly, most if not all rights can be exercised more effectively by wealthier people than by poorer people, and poorer people would probably be disproportionately hurt if they were abolished.

College students are adults and, more importantly, citizens, so they should not have the constitutional right of the right to remain silent stripped from them. How can constitutional rights be inappropriate, especially for a leading university such as Cornell?

I’m quite aware that the United States turns more to fascism everyday, but does that mean that Cornell has to follow? How could anyone in their right mind suggest that we curtail the fundamental right to remain silent? I’m not sure what is more disgusting, that someone actually suggested to remove this right, or that not that many people have become flabbergasted by this suggestion. How does removing this right make the process more “educational”? Krause’s argument that most other schools have adopted this “educational” judicial system and therefore Cornell should follow is outrageous. Do you think of Cornell as a blind follower or a leader? I certainly hope it does not become the former.

I’ve always found the Cornell judicial process to be a grave disappointment in what is supposed to be a school of high learning and lofty ideals. The idea that a student is presumed guilty unless he/she can prove otherwise is unjusted, and contrary to the legal system and constitution of this country. A Cornell student has far less rights then any other citizen.