Providing Evidence and Determining Witnesses

As part of the complaint resolution process, both parties will be asked to provide evidence and the names of potential witnesses to the investigator, in support of or adverse to the allegations of discrimination and harassment, including sexual harassment or sexual misconduct.  Below are some tips regarding gathering evidence and determining witnesses.

What type of evidence should I provide?
In order to share any evidence you believe is relevant with investigators, you should:

  • Take clear screenshots of texts, social media posts, and other communications
  • Download all emails as PDFs or print and scan them as PDFs
  • Download and save voicemails or voice recordings
  • Scan all handwritten documents as PDFs
  • Obtain signed and notarized witness statements from anyone you believe is unlikely to agree to participate in the complaint resolution process
    • If the complaint is being resolved under Title IX, these statements will not be considered unless the witness agrees to participate in the hearing
  • Request and provide any related police reports or medical records
    • Medical records will not be included as evidence without a party’s written permission; to grant this permission, please submit a Release of Medical Information (link).

Once you’ve collected all relevant evidence, provide it to the investigators by email, on an external drive, or by using a link to your cloud storage.  If you do not have access to a printer, scanner, or other necessary technology, inform the investigator so alternative arrangements can be made to share the evidence with our team.

When considering what evidence to provide, are there specific things I should be thinking about?
First, you should know that it may not be enough to simply gather and submit evidence as the other party will likely do the same, and typically, each party will attempt to strongly counter the other party’s evidence.  You must also be able to explain the reason(s) that the evidence you submit is relevant and important to the decision-maker in issuing their determination and be ready to indicate to the decision-maker the reason(s) you believe that the other party’s evidence is irrelevant or unimportant.  

Ultimately, a decision-maker is balancing probabilities, or determining whether it was more likely than not that the alleged conduct occurred.  This standard of evidence is known as a “preponderance” and requires only that one party is able to support their position with evidence and credible testimony “a feather” more than the other.  Think about it this way – let’s say you and the other party have presented all evidence and testimony at a hearing, and all witnesses have done the same.  Picture a person holding two shopping bags that are exactly equal in weight, with each party’s supporting evidence and testimony being contained separately in one of the bags; at this point, the parties are balanced at a 50/50 probability.  Then, before closing the hearing, a panelist asks a question of one of the parties to clarify a statement made earlier in the hearing.  The information provided in the response is relevant but only slightly important to the determination, contributing no more weight to one party’s bag than a feather.  However, once the information is added, the balance shifts and the bags are no longer equal.  The decision-maker bases their determination on this shift, which was caused by one piece of evidence or testimony that weighed just a feather but tipped the finding to “more likely than not” in favor of one party over the other.  This is known as “50 percent and a feather” and is the volume of relevant evidence required to meet the preponderance standard used under Equity and Title IX.

How do I determine what individuals “count” as witnesses?
Witnesses are any persons who have knowledge of facts or circumstances concerning the complaint and allegations being investigated. These individuals, called fact witnesses, can be:

  • Persons who were present at or near the time of the alleged incident(s)
  • Persons who observed the condition of the Complainant, the Respondent, or both at the time of the alleged incident(s)
  • Persons to whom the Complainant may have made statements or communicated with soon after the alleged incident(s) took place

Although it is best to have fact witnesses with first-hand knowledge, witnesses with only second-hand or “hearsay” knowledge are allowed and may provide relevant information as part of the investigation or complaint resolution.  You should document the names of all potential witnesses and any contact information you have available, especially email addresses and cell phone numbers, and provide to investigators as soon as possible, along with an explanation of the relevance of their testimony to the complaint.

Character witnesses, or those individuals whose testimony would be limited to how you typically interact with others or noting that you “would never” behave as alleged, are not allowed as part of the complaint resolution process.

I’m having trouble remembering who may be able to provide fact testimony.  What should I do?
Think about who may have been present when the alleged incident(s) occurred.  For example, who was at the party, lunch meeting, or concert?  Did anyone see, speak, or interact with you or the other party during the time surrounding the incident(s), including by phone, text message, email, video, or social media?  You may talk to these people about the complaint and investigation if you choose to do so, or the investigator can contact them to schedule an interview.