The Effect Given the Disposition of the Criminal Charges in the School’s Disciplinary Proceedings
The final question student defendant should consider carefully if he or she faces both campus disciplinary proceedings and a criminal prosecution is what effect the outcome of the first to be decided will have on the other.
If the campus proceedings go first, the technical answer is that their outcome will have no legal significance in a subsequent criminal proceeding. Whether the student defendant is found responsible for the disciplinary charges in the campus disciplinary proceedings or innocent of those charges, there seems to be no evidentiary principle that would allow the finding to be admitted into evidence at the criminal trial. It is a separate question, of course, whether the outcome may help counsel for the student defendant persuade a district attorney to exercise prosecutorial discretion—either on the ground that the campus discipline, if the student defendant has been found responsible, serves as an adequate punishment, or because acquittal of the campus charges demonstrates that the student defendant is in fact innocent.
When the criminal proceedings are completed first, as is the usual case when a school has a policy of deferring its disciplinary process until the criminal process is finished, a very different set of considerations applies. Cam- pus disciplinary proceedings are “not required to adhere to the standards of due process guaranteed to criminal defendants or to abide by rules of evidence adopted by courts.” Schaer v. Brandeis Univ., 432 Mass. 474, 482 (2000). Therefore colleges and universities are generally free to take into account the outcome of a student defendant’s criminal trial in deciding the responsibility of the student defendant for internal disciplinary charges brought against him or her.
The remainder of this section will consider the weight that a campus disciplinary board may give to various types of outcomes of the criminal process.
Pretrial Probation, Complaint Filed Without a Change of Plea and Without a Finding
Pretrial probation authorized by G.L. c. 276, § 87 (2006 ed.), and the filing of a complaint without a change of plea from not guilty and without a finding, all involve no admission by the student defendant of any guilt, and no finding of the court of either guilt or innocence that could be introduced in a campus disciplinary proceeding. None of these dispositions therefore should be considered by the school’s disciplinary authorities as having any evidentiary weight regarding the responsibility or lack of responsibility of the student defendant for the campus charges. The fact that such a disposition occurred, however, could presumably be introduced in the hearing, under the relaxed evidentiary standards referred to at the outset of this section, so that the disciplinary authorities are aware of the outcome of the criminal process.
Admission to Sufficient Facts and Continuance Without a Finding
When a defendant tenders an admission to sufficient facts (ASF), he or she acknowledges that the fact finder could determine the defendant guilty of the criminal charges based on the evidence that the prosecution offers to prove. An ASF is the “functional equivalent” of a guilty plea. Commonwealth v. Greene, 400 Mass. 144, 145–46 (1987). An ASF, if accepted by the court, is typically followed by a continuance without a finding (CWOF or CWF), by which the court continues the defendant’s criminal case without making any finding on the criminal charge. G.L. c. 278, § 18 (2006 ed.); Mass. R. Crim. P. 12(a)(2). The defendant is placed on probation for a certain period of time, after which, if the defendant meets the conditions of probation, the charges are dis- missed.
There are no reported Massachusetts decisions that consider whether an ASF may be considered in a college or university disciplinary hearing. But there are well-developed precedents in other contexts that allow the admission of an ASF in a civil court case or administrative proceeding.
An ASF may be introduced in civil litigation as an admission by the party. Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 613 (2000). An ASF is, however, evidentiary, rather than a finding by a court that would be given preclusive effect. The party against whom an ASF is entered is therefore allowed to explain the circumstances for having admitted to sufficient facts, and it is left to the fact finder to weigh the ASF, along with the other evid- ence, in reaching a decision. Hopkins v. Medeiros, 48 Mass. App. Ct. at 613.
Administrative hearings are by law not subject to judicial rules of evidence (State Administrative Procedure Act, G.L. c. 30A, § 11(2) (2006 ed.)), and in that respect are similar to campus disciplinary proceedings. Given the admissibility of ASFs in civil proceedings, it would seem a foregone conclusion that they could be admitted in administrative hearings (and, by logical extension, in campus disciplinary hearings). The Supreme Judicial Court initially declined to decide whether an ASF was admissible in an administrative hearing. Wardell v. Dir. of Div. of Employment Sec., 397 Mass. 433, 437 n.5 (1986). But the court subsequently decided a case in which it simply assumed that the ASF was properly before the administrative hearing board. Burns v. Commonwealth, 430 Mass. 444, 450–52 (1999).
As a result of these civil precedents, a student defendant must expect that campus disciplinary authorities will be allowed to take into account the student defendant’s ASF on criminal charges that are the same as the internal disciplinary charges against the student defendant.
It is a separate question, however, how much weight an ASF may be given by the campus disciplinary authorities. In the context of administrative hearings, Massachusetts courts have held that the standard of proof for taking the administrative action will determine whether an ASF by itself may be sufficient for a finding. Burns v. Commonwealth, at 430 Mass. at 452 n.16. When the standard is low enough, an ASF alone may be all that is needed to find against a party who, as the defendant in the criminal proceeding, admitted to sufficient facts. Commonwealth v. Villalobos, 437 Mass. 797, 800–03 (2002) (describing G.L. c. 278, § 29D and risk that an ASF may by itself be sufficient for a noncitizen’s deportation). Applying that same logic to campus proceedings, it follows that the effect to be given a student defendant’s ASF at a disciplinary hearing will depend on the standard of proof the school has adopted for deciding the case.
In college and university disciplinary hearings, the standard of proof is typically either the civil “preponderance of the evidence” test or a more stringent “clear and convincing evidence” test. Under the former standard, an ASF is probably not, and under the latter, is surely not, sufficient by itself to find a student defendant responsible on campus disciplinary charges. Wardell v. Dir. of Div. of Employment Sec., 397 Mass. 433, 436–37 (ASF alone is not “substantial evidence” on which a finding may be based). But an ASF could, under the analogous cases from administrative law, be introduced as evidence of responsibility and, if accompanied by further evidence, be sufficient for a finding against the student defendant.
Guilty Plea
Once again, there are no reported Massachusetts decisions that consider the impact of a guilty plea coupled with a guilty finding in a criminal proceeding on a college or university disciplinary hearing. However, several cases discuss the impact of a guilty plea on subsequent civil litigation, and the same principles would likely apply in a school setting.
”A plea of ‘guilty’ is an admission of the material facts alleged in the complaint or indictment,… and in so far as it amounts to an admission of facts material in the trial of a civil case in which the person so pleading is a party, it is admissible as evidence against him.” Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 747 (1985) (quoting Morrissey v. Powell, 304 Mass. 268 (1939)). While a guilty plea may therefore be considered evidence against a civil defendant, it is not conclusive as to the facts admitted in the plea. Nor, in Massachusetts, is a guilty plea followed by a conviction considered conclusive. Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. at 747. See gener- ally Costa v. Fall River Hous. Auth., 71 Mass. App. Ct. 269, 283 & n.12 (2008), aff’d, 453 Mass. 614 (2009). Other states treat a guilty finding after a guilty plea as conclusive. See, e.g., James v. Paul, 49 S.W.3d 678, 686–88 (Mo. 2001); State Farm Fire and Cas. Co. v. Fullerton, 118 F.3d 374, 380 (5th Cir. 1997). But in Massachusetts, the civil defendant is still given the opportunity to explain his or her reasons for entering the guilty plea.
These principles would presumably apply with equal force in college and university disciplinary proceedings: a guilty plea, as well as a conviction following it, could be admitted, but neither should be given preclusive effect. The student defendant in such a case should be permitted to offer testimony or other evidence to counter the weight to be given to the plea and conviction. At the same time, it would seem logical that the weight to be giv- en a guilty plea and subsequent conviction in a campus disciplinary hearing should be more than the weight giv- en an ASF. A guilty plea amounts to the student defendant admitting out of his or her own mouth that he or she committed the acts charged, while an ASF is, as explained in § 9.2.3(b), above, only an admission that a fact finder could so conclude. Whether such fine distinctions have any practical meaning for the laypersons who are typically the campus disciplinary authorities, however, will depend very much upon the particular people in- volved and how finely tuned their fact-finding skills may be.
Guilty Finding or Verdict After Trial
When a defendant is found guilty after a trial on the merits on a criminal charge, that finding or verdict may be used against a defendant to preclude a relitigation of the same issues at a civil trial. Aetna Cas. and Sur. Co. v. Niziolek, 395 Mass. 737, 742 (1985); Fid. Mgmt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 199 (1996). Given the case law in the context of civil litigation, it appears that a guilty finding or verdict after trial similarly could be treated by campus disciplinary authorities as sufficient to preclude a student defendant from relitigating the same issues at a college or university disciplinary hearing. In essence, as long as the criminal charges and the internal disciplinary charges are the same, the only evidence necessary for the campus disciplinary authorities to find the student defendant responsible on the internal disciplinary charges is proof of the out- come of the criminal case. (The conclusion may be different if the charges in the criminal and campus proceedings do not relate to on-campus behavior, at least at state institutions where constitutional due process guarantees apply. In Paine v. Bd. of Regents of the Univ. of Texas Sys., 355 F. Supp. 199, 205 (W.D. Texas 1972), aff’d per curiam, 474 F.2d 1397 (5th Cir. 1973), the court held that students could not be suspended for off-campus drug use simply upon a showing of a criminal conviction for such activity, but were instead entitled to a hearing at which they could show that the incident did not affect their fitness as students.)
Not Guilty Finding or Verdict
In the context of a civil proceeding, a finding or verdict of not guilty on a criminal charge has no preclusive effect on a subsequent civil trial, because of the different standards for proof: in criminal cases, a defendant may only be found guilty upon a determination beyond a reasonable doubt, while the civil burden of proof is the lower preponderance of the evidence test. Therefore the fact that a defendant was not found guilty of a crime beyond a reasonable doubt would not mean that he or she could not have been found to have been responsible under the lower civil burden of proof. In re Segal, 430 Mass. 359, 363 (1999), and cases cited.
As a result, in civil litigation, a party’s acquittal of criminal charges is not admissible. Terrio v. McDonough, 16 Mass. App. Ct. 163, 173 (1983). The question remains whether a finding or verdict of not guilty may be introduced as evidence at a college or university disciplinary hearing. No Massachusetts decision has addressed this issue. Given the relaxed evidentiary standard applicable to such proceedings, the campus disciplinary authorities could choose to allow evidence of acquittal (and the student defendant would certainly not object if they made that decision). But if the campus disciplinary authorities choose to exclude such evidence, their action would be difficult for a student defendant to challenge. The different standards of proof applicable to criminal and disciplinary proceedings, and the precedents developed in civil litigation, would certainly serve as legitimate grounds for a school’s decision not to admit evidence of acquittal in a campus disciplinary proceeding.