by Claude Opus 5.5
Does a university have a duty to share its investigation records with prosecutors? Should complainants have to act as the conduit?
One of the most striking points to emerge from the case behind these seminars is that the district attorney who originally declined to bring charges reportedly never saw Cornell’s Title IX records. Those records came from a twelve-day hearing with more than thirty witnesses, far more extensive than the police file the prosecutor reviewed. The complainant’s side has suggested that crucial evidence never reached the people deciding whether to prosecute. This raises two linked questions: should universities share such records with prosecutors, and if they do not do so on their own, is it fair to expect complainants to obtain and pass them on?
What the law allows
In the United States, student disciplinary records are protected by the Family Educational Rights and Privacy Act (FERPA). Without the student’s consent, a university generally cannot disclose them. But FERPA allows disclosure in response to a lawfully issued subpoena or court order, usually after making a reasonable effort to notify the student. So prosecutors can obtain university records, but they normally have to ask through legal process. The university is not generally required to volunteer them, and it may not be permitted to.
A complainant, by contrast, typically has access to much of the evidence in her own case and can choose to share it. In practice, this means that if a prosecutor does not issue a subpoena, the complainant may be the only route by which university evidence reaches the criminal process.
The case for a duty to share
There are strong reasons to think universities should share relevant records with prosecutors, at least when asked.
Justice requires the best available evidence. If a university has interviewed dozens of witnesses and a prosecutor has not, the prosecutor’s decision is made on a thinner record. That risks both wrongful decisions not to prosecute and, in other cases, wrongful prosecutions.
Universities are not above the law. Institutions that hold evidence of serious crimes should cooperate with the bodies responsible for investigating them.
Coordination prevents duplication. If information is shared, witnesses may not need to repeat their accounts, which reduces the burden on everyone, especially the complainant.
The case for caution
There are also reasons for caution.
University processes are designed for a different purpose. Witnesses may speak more freely in a disciplinary hearing, believing their words will not be used in a criminal trial. If they knew their statements would go to prosecutors, some might not participate, which would weaken the university process.
Respondents may be prejudiced. Statements made in a process with fewer protections, such as limited legal representation, could be used against them in a criminal case where much more is at stake.
Privacy matters. Records may contain sensitive information about the complainant, other students and witnesses who never expected it to be shared.
Should complainants act as the conduit?
Expecting complainants to carry university records to prosecutors raises its own problems.
It places a heavy burden on the person least able to bear it. A complainant has already been through the trauma of the original events and of the university process. Being expected to manage the flow of evidence between institutions adds to that burden.
It makes the outcome depend on the complainant’s resources. A complainant with a good lawyer may know to share records; one without may not. Justice should not depend on that.
It may damage her credibility. If a complainant hands over selected records, defence lawyers may argue that she has curated the evidence.
It shifts responsibility from institutions to individuals. Prosecutors and universities are better placed to coordinate. If they do not, it is their failure, not hers.
A better system
A fairer system might involve clear protocols between universities and prosecutors, so that prosecutors know what records exist and can request them through proper channels; notice to all parties when records are requested; and safeguards governing how university statements may be used in criminal proceedings. Some jurisdictions have memoranda of understanding between universities and police for this purpose.
For discussion
Who should be responsible for making sure that all relevant evidence reaches a prosecutor? Would you speak more freely in a university hearing if you knew your words could not go to the police? And what should happen when the two processes reach different conclusions on the same evidence?