The Importance of a Good Investigative Report (to accompany the Investigative Report format)

1. The Importance of a Good Investigative Report (to accompany the Investigative Report format) Melissa Flores, Associate General Counsel, Sr. Jessica Sherman, Policy Analyst, Sr. Office of the General Counsel Maricopa County Community College District

2. Key Takeaways • The report serves as a framework for all future proceedings. • This report should demonstrate the care and attention given to the factual findings and weighing of evidence. • This report shows that the institution reached a reasoned, good faith conclusion. • This report should not only reach a conclusion—it must show your work. This is especially true for credibility determinations.

3. Investigative Final Reports 1. Final Reports should be entered into Symplicity. 2. Final Reports should be reviewed, proofread, and all dates and spelling of names, use of pronouns, and policy quotes should be verified. Even small mistakes can call the report into question. 3. Prior to issuing the final report, it must be reviewed by legal.

4. Please use the following slides as a guide as you write your Title IX (and other investigation) final investigative report.

5. STEP I: Procedural History This section should outline the following: 1. How and when did the case come in? 2. What interim steps did the college take? 3. Was there any reason for investigative delays—college in between semesters, student out of town, etc.

6. STEP II: Summary of the Allegations • The summary guides the reader through what to expect in your report. • The summary should be precise and focuses on the allegations that, if true, would lead to a violation of policy. • Be clear about the individual allegations—who is making them (if multiple complainants) and quote the allegations as stated by the complainant. • Frame the allegation(s) within the context of the policy, and cite the specific policy sections that were allegedly violated. As you draft, remember that this is the framework for any judicial process that may occur.

7. STEP III: Applicable Policies/Procedures 1. List the applicable policies and procedures and use full copies of the policies as attachments. 2. Make sure the version of the policy is the one in place at the time of the alleged conduct. Policies change often. 3. What other policies might be implicated? There may be other policies that may apply. Consider Faculty/Staff Handbooks, Computer/Technology Use Policies, Minors on Campus Policies.

8. STEP IV: Information Considered • Remember the seriousness of these matters and the consequences that may come from them for all parties involved. • You must be able to show that you were fair, impartial, and thorough. • Include a summary of what you collected and reviewed (documents, texts, Instagram, FB posts, etc.) • It is generally better to be over-inclusive. When in doubt, include it.

9. Checklist for Information Considered List if you reviewed any of the following: - Complainant/Respondent correspondence with the college - Summary of interviews, by person and date • Text messages, tweets, Snapchats, Facebook Messenger, etc. • Emails between parties and between parties and witnesses • Video from Surveillance cameras • Floor plans of apartments • Phone logs—who did you attempt to reach, but couldn’t • Police reports • Medical reports • Class attendance logs • Other documents provided by the complainant, respondent, and/or witnesses

10. STEP V: Evidentiary Standard The standard is preponderance of the evidence. Every final report should list the following in this section: In order to determine that a student has violated the student code of conduct, the standard of proof required is a preponderance of evidence, i.e., the evidence demonstrates that it is more likely than not that the conduct occurred.

11. STEP VI: Undisputed Facts 1. What material and relevant facts are undisputed? Make sure they are really material and relevant facts. - What does it mean for a fact to be material and relevant? 2. How do we know these facts? • Who told us? How were the facts gathered (texts, emails, social media, etc.) 3. Why are we including these facts? - What point (regarding the charge) do they help us resolve? 4. Are they really undisputed? 5. Use witness quotes as much as possible—do not take statements out of the vernacular. (paraphrasing too much can make an undisputed fact very disputed.

12. STEP VII: Findings and Credibility Determination First, list the names and dates of the interviews you conducted. 1. It is just like doing math—you gotta show your work! 2. Quote the language used by the parties, even if it is offensive. 3. Group your findings by the allegation /issue. 4. For disputed key facts, credibility will be key. Go point by point. • What do you think happened and why? • On what evidence do you base your conclusion? • Was one party more/less credible than someone else? Why? You must make credibility determinations. • Is there corroborating evidence? Cite it! • Are there inconsistencies? • Behavior, affect, demeanor? But, careful—remember that parties don’t always act “normal.”

13. STEP VIII: Analysis 1. This is an analysis of undisputed facts and factual findings/conclusion. 2. Put it all together. 3. Looking for violations of policy, NOT LAW. 4. Take factual findings and analyze them under the applicable policy. 5. Address every allegation, one-by-one. 6. Explain your reasoning—HOW did you get “there?”

14. Application of STEP VIII (analysis and conclusion) Two major areas of dispute: • Consent • How was consent communicated? • Do the facts support consent as defined IN YOUR POLICY? • Intoxication v. Incapacitation • Consumption • Conscious • Coordinated • Communications • Corroboration

15. STEP IX: Recommendations and Sanctions • Know your role. Do not include your opinion unless you are required to do so by policy. • It is important to take an action sufficient to abate the behavior and improve the learning environment. • Act consistently with other actions taken by the institution for similar conduct. • Consider the wants/concerns of the Complainant, but make no promises.

16. Considerations in Writing this Report • Apply the correct version of the policy. • Document the institutional process. • Apply the correct standard of proof. • Recap the evidence considered and note if something wasn’t considered and why. • Use the interviewees’ words. • Cite evidence and attach them for key points. • Show your work! • Credibility determinations are hard, but necessary. • Write for an audience that knows nothing about the matter. • Proofread carefully and check dates—smaller inadvertent errors can undermine the report.

17. What are your questions?