Tuesday, March 31, 2009

Should I Confess at my College Disciplinary Hearing?

Last week I went to a Boston Bar Association conference on representing college and university students at disciplinary hearings. In attendance was one of the BU deans, and several lawyers experienced in this area.

The most challenging part about representing a college/university student is the tension between the school’s desire for contrition, and the criminal justice consequences of admitting to an illegal act. Typically criminal defense lawyers will advise against admitting anything, if the statement is admissible in court. Admissions at disciplinary hearings will usually fall into that category, so lawyers often reflexively advise silence. Given how much students invest in their education these days, I'm not sure playing it ultra-safe is the best approach.

So what would I do if I were representing a student who just got a DUI on campus? First, I would explain to the client the risk of admitting to a crime at the disciplinary hearing. Then I would seek assurances from the school that they will resist any attempts by prosecutors to use the disciplinary hearing transcript to prove guilt at trial. This might mean a quick call to the school’s chief counsel. Next I would have the client sign a waiver indicating he understood the risk of confessing at the school hearing. Finally, I would advise him to express remorse, and tell the school’s hearing officer the truth. Unlike in a courtroom, the student taking responsibility for his own actions will help him far more than anything a lawyer could say.

In reality (as opposed to theory), most prosecutors would not seek to admit evidence from the school’s hearing, unless it was a very serious crime such as rape, murder, or possibly aggravated assault and battery. Frankly, most district court prosecutors simply don’t have the time to chase down university transcripts, which may or may not contain useful information. This is especially true when the charge is fairly minor. The BU dean said that he has never received or even heard of such a request from a prosecutor.

At the end of the day, the student has much to gain from taking responsibility (and possibly admitting guilt) at the school hearing. It may allow him to avoid suspension, retain student housing, or minimize impact on his student record. No doubt there is a risk of the confession coming back to bite the student later in court. Yet in a misdemeanor case the chances are relatively slim. If the client understands and signs off on the risk, I think that the school's desire for contrition makes it a worthwhile gamble.

Friday, March 27, 2009

Reasonable Suspicion?

A case argued earlier this month in the S.J.C., Commonwealth v. Johnson, SJC-10267, puts a spotlight on police departments' double standard of "reasonable suspicion." When Springfield Police officers approached a group of teenagers standing under a tree at 10AM, they asked Mr. Johnson to take his hands out of his pocket. A minute or two later--perhaps as a nervous tick--he returned his hands to his pocket. At that point he was pat-frisked, and was arrested for drug possession.
The only justification for the pat-frisk was a concern for officer safety. That is to say that the pat frisk was justified on the "reasonable suspicion" that Johnson was armed and dangerous. The suspicion of weapons was based on (1) being in a "high crime/high drug activity" neighborhood, and (2) Johnson putting his hands in his pockets.
Mr. Johnson and his four friends are African Americans. One has to wonder weather the frisk would have happened if it had been a group of white teenage girls in an affluent neighborhood. It raises the question: Shouldn't a uniform standard of "reasonable suspicion" apply to all Massachusetts citizens equally? Should the S.J.C. reevaluate the constitutionality of using "high crime/high drug activity neighborhood" as a factor in determining whether a pat frisk is justified?See video of the oral argument here: mms://192.138.214.175/archives/SJC_10267.wmv