NY Punts On Substantially Hearsay

The best part of the New York Court of Appeals memorandum opinion in Haug v. SUNY Potsdam is that it’s thankfully short. A wag might contend that its brevity is due to the fact that the rationale was so thin, so shallow, that there were simply no more words to offer.

Then again, the Court of Appeals, New York’s highest court because somebody totally screwed up the names, is a court of limited jurisdiction to address only law, not facts. Thus, the facts can only be found in the Appellate Division, Third Department, opinion.

Petitioner was a freshman at respondent State University of New York at Potsdam (hereinafter SUNY) in September 2014. In the early morning hours of September 7, 2014, he ran into a female student (hereinafter the complainant) with whom he had been friends for several years, and the two had sex in her dormitory room. The complainant reported to campus police shortly afterward that, while she had not declined to engage in sex and gave no “gesture saying that [the sexual encounter] wasn’t welcome,” she had been sexually assaulted.

The female student didn’t name her “perp,” nor appear for a hearing. That didn’t stop the inquisition.

The complainant’s account was set forth by others who had conversed with her, with the  Hearing Board considering written notes prepared by respondent Annette Robbins, SUNY’s director of student conduct and community standards, and the hearing testimony of a campus police officer. The complainant told Robbins that petitioner was a friend and that, after running into him on the night in question, she invited him to her dorm room. Petitioner tried in some manner to touch her once they got to the room, then locked the door and led her to bed. The two began “making out” on the bed and, while the complainant stated that she did not verbally consent when petitioner suggested that they have sex, she did take her shirt off. Petitioner took the complainant’s pants off and had relations with her without wearing protection. The complainant indicated that she “froze up” and did “not respond” to petitioner’s advances, although the record does not reveal how this inner turmoil was manifested or whether petitioner was or should have been aware of it. The Hearing Board found from this that the complainant did not affirmatively consent to having sex and that, as a result, petitioner engaged in sexual misconduct.

The evidence against Haug was comprised solely of hearsay, the “complainant’s” story as repeated by a college administrator and campus police officer. It’s impossible to question hearsay, as the story is what it is and the person repeating it can’t do more than shrug and say “that’s what she said.” And that, to the Court of Appeals, was close enough.

As we said in Matter of Pell, “neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; * * * the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence.”

The “law question” was whether there was “substantial evidence” such as to allow a rational trier of fact to reach the conclusion it reached, even if the conclusion wasn’t the best or right conclusion. It’s a matter of deference to the administrative body.

Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, “irrespective of whether a similar quantum of evidence is available to support other varying conclusions.” Moreover, hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds. (Emphasis added, citations omitted.)

That hearsay is admissible in administrative hearings is nothing new. That hearsay is sufficient, when contradicted by live testimony, on the other hand, is a bridge too far. The court tries to bolster its shortfall with some non-hearsay evidence.

The hearing board also could have reasonably interpreted some of petitioner’s conceded behavior as consciousness of guilt and concluded that his version of the events was not credible. Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations.

In other words, while the affirmative evidence of misconduct sucked, Haug’s live testimony could have been the basis for finding him incredible. It’s possible, provided he was a godawful witness, which happens. But there are two things lurking below the surface of this decision that need to be considered as well.

First, the vast majority of administrative proceedings that come before New York courts aren’t campus sex adjudications, but parole and probation proceedings, which are almost invariably grounded in hearsay, where the P.O.’s repeat the reports of arresting officers who never appear, and hearing officers nod their bobble heads in understanding. If hearsay wasn’t good enough to expel a student, can it be good enough to put a guy in prison for the rest of his life?

Second is the problem of letting a college kid defend himself.

Finally, we agree with the Appellate Division that petitioner’s due process arguments were not preserved at the administrative level.

Gee whiz, you mean some kid at SUNY Potsdam wasn’t a good enough lawyer to make and preserve arguments pursuant to the state and federal Constitution? No doubt future changes to entitle the accused to conduct cross-examination will remedy this skill gap in legal acumen and provide for a competent defense to an accusation that will almost certainly destroy his life.


7 thoughts on “NY Punts On Substantially Hearsay

  1. Jeffrey Gamso

    A not-quite irrelevant anecdote:

    A couple of decades ago, I had a case where the prosecutor argued that although there was no evidence of an element of the offense, and the only evidence was that the element had not occurred (the alleged victim testified that it didn’t happen), the court should find the evidence sufficient anyway.

    After all, the jury had a right to believe or disbelieve any part of what a witness said. So they could have thought she was lying when she denied having been touched. And since she lied about it not having happened, the prosecutor argued, it must have occurred.

    The court pretty much blew me off for fussing about something as trivial as convicting a guy based on evidence that he was innocent. Bullshit hearsay, even contradicted, would have been a step up.

  2. MonitorsMost

    The preservation trap for administrative hearings is a dirty procedural feature (not a bug). You argue Constitutional defenses and the administrative tribunal yells at you because they don’t have the jurisdiction to address constitutional defenses. You don’t argue constitutional defenses and you’ve failed to preserve the issue for review by a real judge.

      1. MonitorMost

        And unsurprisingly the ALJs don’t take it too kindly when you say “I know you don’t have jurisdiction, but I need to preserve this for when you inevitably screw this hearing up.” Doesn’t matter how diplomatically you say it, that is how they interpret it (in their defense, they are interpreting it correctly).

          1. MonitorsMost

            In my jurisdiction, the appellate procedures for public universities is the same as that out of an administrative adjudicator proceeding. So regardless of whether the tribunal is an ALJ or an administrative board or a college tribunal, the preservation/jurisdiction trap exists, at least for me.

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