Member Discipline Trial Supporting documentation

[Mary Ellen]

Our organization will be having a trial for a member.  We have received letters from members supporting the charges preferred on the the member.  Is it required that these letters be shared with the defendant during the trial?  If it is not necessary to share these letters, can the hearing committee use them when deliberating?  Thank you.

[Josh Martin]

23 minutes ago, Mary Ellen said:

Our organization will be having a trial for a member.  We have received letters from members supporting the charges preferred on the the member.  Is it required that these letters be shared with the defendant during the trial?  If it is not necessary to share these letters, can the hearing committee use them when deliberating?  Thank you.

RONR has no rules on this specific matter, however, RONR does have the following general rules concerning matters of trial procedure not addressed in RONR.

"At any time before the commencement of the trial with the first of the "preliminary steps" described below, the assembly may, by majority vote, adopt a resolution to govern the trial specifying details not inconsistent with the procedures described here." (RONR, 11th ed., pg. 664)

"Subject to the relevant rules and the provisions in any resolution governing the trial, the presiding officer, similarly to a judge at a trial, directs the proceedings and rules on all questions of evidence and any objections or requests by the managers or the defense, the merits of which may first be argued by the managers and the defense. From any such direction or ruling, a member of the assembly may take an undebatable appeal, or the presiding officer may in the first instance submit any such question to a vote, without debate, by the assembly. Any motion to alter a resolution previously adopted to govern the trial, which may be proposed only by the managers or defense, or a proposal by the chair to do the same, is submitted without debate to a vote by the assembly; its adoption requires the vote necessary to Amend Something Previously Adopted." (RONR, 11th ed., pg. 666)

[Mary Ellen]

Let me clarify my question a bit as after reading this I am still not clear. 

If the presiding officer decides not to mention or allow these letters to be admitted as evidence during the hearing/trial, therefore the defendant will know nothing about these letters or their content, can the members of the hearing panel who will decide the verdict use these letters when deliberating when the defense is not on the call or on the video conference?  I am struggling interpreting the general rule above relating to this circumstance.

Thank you.

[Josh Martin]

20 minutes ago, Mary Ellen said:

If the presiding officer decides not to mention or allow these letters to be admitted as evidence during the hearing/trial, therefore the defendant will know nothing about these letters or their content, can the members of the hearing panel who will decide the verdict use these letters when deliberating when the defense is not on the call or on the video conference?  I am struggling interpreting the general rule above relating to this circumstance.

The rules in RONR appear to generally assume that evidence is presented during the trial itself. With that said, no rule in RONR appears to specifically prohibit the introduction of new evidence during the assembly's deliberation's following the closing arguments.

Edited August 13, 2020 at 06:56 PM by Josh Martin

[Atul Kapur]

I don't have the book in front of me, but I would think this violates one of the elements of due process.

[Josh Martin]

5 hours ago, Atul Kapur said:

I don't have the book in front of me, but I would think this violates one of the elements of due process.

Nonetheless, no rule in RONR appears to specifically prohibit it.

RONR describes "due process" in quite general terms.

"If thus accused, he has the right to due process—that is, to be informed of the charge and given time to prepare his defense, to appear and defend himself, and to be fairly treated." (RONR, 11th ed., pg. 656)

RONR mentions "evidence" a few times in the context of a disciplinary trial. Most of these references are pretty generic. The two that are more specific are the rule that hearsay evidence is admissible and the rule that the presiding officer (subject to appeal) decides on "all questions of evidence." There is nothing directly pertaining to the question of whether evidence may be admitted after the trial. 

"To get at the truth under the conditions of such a trial, hearsay evidence has to be admissible, and judgment as to the best interests of the society may have to be based on it." (RONR, 11th ed., pg. 655)

"The "managers" at the trial—referred to in the fourth resolution of the complete set shown above—have the task of presenting the evidence against the accused, and must be members of the society." (RONR, 11th ed., pg. 662)

"At the trial, the evidence against the accused officer or member is presented by the managers for the society, and the officer or member has the right to be represented by counsel and to speak and produce witnesses in his own defense." (RONR, 11th ed., pgs. 663-664)

"Subject to the relevant rules and the provisions in any resolution governing the trial, the presiding officer, similarly to a judge at a trial, directs the proceedings and rules on all questions of evidence and any objections or requests by the managers or the defense, the merits of which may first be argued by the managers and the defense. From any such direction or ruling, a member of the assembly may take an undebatable appeal, or the presiding officer may in the first instance submit any such question to a vote, without debate, by the assembly. Any motion to alter a resolution previously adopted to govern the trial, which may be proposed only by the managers or defense, or a proposal by the chair to do the same, is submitted without debate to a vote by the assembly; its adoption requires the vote necessary to Amend Something Previously Adopted." (RONR, 11th ed., pg. 666)

"A member who votes for a finding of guilt at a trial should be morally convinced, on the basis of the evidence he has heard, that the accused is guilty." (RONR, 11th ed., pg. 668)

If an attempt was made to introduce evidence after the closing arguments, I think a member certainly could raise a Point of Order, followed by an Appeal if necessary, that this was prohibited on the grounds that it violates the "defend himself, and to be fairly treated" elements of due process in RONR, since the accused is not present in order to rebut the evidence. One might also argue that, although no rule in RONR explicitly prohibits the introduction of evidence after the conclusion of the trial, all of the references to evidence in this context refer to the introduction of evidence during a trial, and therefore the text implicitly prohibits the introduction of evidence after the trial. I think these are reasonable arguments and the chair and the assembly might well agree with them, or they might not. My understanding from other threads by the OP is that the society has its own rules pertaining to discipline, and those rules may (or may not) also be relevant to this question. There could also be relevant rules in any resolutions adopted to govern the trial's proceedings.

It seems to me that an Appeal raised regarding this subject after the trial had concluded would be debatable. My understanding is that the rule that such appeals are undebatable is connected to the fact that members are not generally permitted to speak during a trial. Since members are permitted to speak after the trial has concluded, I would think that the rules relating to whether an appeal is debatable are the same as they are generally.

Edited August 14, 2020 at 02:05 PM by Josh Martin

[smb]

"If thus accused, he has the right to due process—that is, to be informed of the charge and given time to prepare his defense, to appear and defend himself, and to be fairly treated." (RONR, 11th ed., pg. 656)

Allowing the hearing panel to consider the letters when they have not previously been shown to the charged party is hardly "fair" treatment.  If the letters contain evidence that the charged party may be able to rebut, she is being denied the opportunity to defend herself.  If they do not consist of evidence and simply argue that some disciplinary action be taken, showing them to the hearing panel would be an improper intrusion into their deliberative role.  They are supposed to determine whether the evidence presented supports the charges, not judge how popular or unpopular the charged party may be.

[Josh Martin]

10 hours ago, smb said:

"If thus accused, he has the right to due process—that is, to be informed of the charge and given time to prepare his defense, to appear and defend himself, and to be fairly treated." (RONR, 11th ed., pg. 656)

Allowing the hearing panel to consider the letters when they have not previously been shown to the charged party is hardly "fair" treatment.  If the letters contain evidence that the charged party may be able to rebut, she is being denied the opportunity to defend herself.  If they do not consist of evidence and simply argue that some disciplinary action be taken, showing them to the hearing panel would be an improper intrusion into their deliberative role.  They are supposed to determine whether the evidence presented supports the charges, not judge how popular or unpopular the charged party may be.

As I said, a member might raise a Point of Order, followed by an Appeal, arguing that the introduction of such letters after the trial has concluded violates the "appear and defend himself, and to be fairly treated" portion of this rule. Such a phrase, however, is certainly open-ended enough that it is open to interpretation, and it will ultimately be up to a particular society to determine what it means in a particular context.

[J. J.]

There are multiple questions:

1.  Must the managers use all evidence submitted?  My answer would be no.  The managers are effectively a committee and nothing requires that what the committee considered be shared with the assembly.

2.  May the triers consider something that was not presented at the hearing? 

I find this line controlling, "At the trial, the evidence against the accused officer or member is presented by the managers for the society, and the officer or member has the right to be represented by counsel and to speak and produce witnesses in his own defense(pp. 663-664)."  It further states, "A member who votes for a finding of guilt at a trial should be morally convinced, on the basis of the evidence he has heard, that the accused is guilty (p. 688, ll. 16-18, emphasis added)."

Based on that, I think that the triers may only consider evidence presented in a trial.  In other words, they should not be given evidence that was not presented.

If the managers wish to use this information to influence the triers, the must present it at the trial.

[Shmuel Gerber]

On 8/17/2020 at 11:41 AM, J. J. said:

There are multiple questions:

1.  Must the managers use all evidence submitted?  My answer would be no.  The managers are effectively a committee and nothing requires that what the committee considered be shared with the assembly.

2.  May the triers consider something that was not presented at the hearing? 

I find this line controlling, "At the trial, the evidence against the accused officer or member is presented by the managers for the society, and the officer or member has the right to be represented by counsel and to speak and produce witnesses in his own defense(pp. 663-664)."  It further states, "A member who votes for a finding of guilt at a trial should be morally convinced, on the basis of the evidence he has heard, that the accused is guilty (p. 688, ll. 16-18, emphasis added)."

Based on that, I think that the triers may only consider evidence presented in a trial.  In other words, they should not be given evidence that was not presented.

If the managers wish to use this information to influence the triers, the must present it at the trial.

I agree.

[Gary Novosielski]

On 8/17/2020 at 11:41 AM, J. J. said:

on the basis of the evidence he has heard,

And RONR (12th ed.) 63:34