Reasoning for trial committee members being different from investigating committee

[Guest Ray E]

I am curious about the logic behind the statement in 63:22 that a trial committee "must be composed of persons different from those on the preliminary investigating committee".  

The specifics for our situation fall outside of much of RONR, since our society (membership in the thousands) does not hold mass meetings, but elects a Board of Directors and a Council by written ballot. Our bylaws have a general outline for discipline, and we are working on updating implementation details.  Our current procedures call for an investigating body, then for a trial to be held by a board of hearing; the board of hearing is not to contain any of the members of the investigating body, and I assume the logic would be the same as for 63:22, but that logic is not spelled out anywhere that I can find in RONR, which is usually pretty good at explaining the principles involved in various rules.

Edited May 14, 2023 at 03:20 AM by Shmuel Gerber
Typo in topic name

[Josh Martin]

On 5/9/2023 at 4:14 AM, Guest Ray E said:

I am curious about the logic behind the statement in 63:22 that a trial committee "must be composed of persons different from those on the preliminary investigating committee".  

The specifics for our situation fall outside of much of RONR, since our society (membership in the thousands) does not hold mass meetings, but elects a Board of Directors and a Council by written ballot. Our bylaws have a general outline for discipline, and we are working on updating implementation details.  Our current procedures call for an investigating body, then for a trial to be held by a board of hearing; the board of hearing is not to contain any of the members of the investigating body, and I assume the logic would be the same as for 63:22, but that logic is not spelled out anywhere that I can find in RONR, which is usually pretty good at explaining the principles involved in various rules.

This is all speculation on my part, but I believe the primary rationale is that it is desired to have "fresh eyes" look at the facts prepared by the investigating committee. I suspect it may also be loosely modeled after procedures in legal proceedings - a grand jury and a trial jury are composed of different persons. I would also note the role of the "managers" in a trial in RONR (see 63:27), who "have the task of presenting the evidence against the accused." Quite frequently, some or all of the members of the investigating committee will be the logical choices for this role, since they are familiar with the evidence. It would generally seem desirable, however, for the managers not to serve as members of the trial committee.

[Rob Elsman]

In a way that is analogous to a court of law, the members of the investigative committee are in the position of detectives and prosecutors, while the trial committee is in the position of judge and jury. If you were a defendant, you would not want the jury to consist of the detectives who built the case against you.

[Richard Brown]

I agree with both of my colleagues and especially like Mr. Elsman’s analogy. As a retired attorney, I was about to say the same thing until I saw that he had already said it.  

[Gary Novosielski]

On 5/9/2023 at 5:14 AM, Guest Ray E said:

I am curious about the logic behind the statement in 63:22 that a trial committee "must be composed of persons different from those on the preliminary investigating committee".  

I suppose for the same reason that the District Attorney is not allowed to be on the jury.

[Joshua Katz]

There was a case in the Virgin Islands in which the victim wound up on the grand jury, which was held to be a due process violation.

[Gary Novosielski]

On 5/9/2023 at 7:36 PM, Joshua Katz said:

There was a case in the Virgin Islands in which the victim wound up on the grand jury, which was held to be a due process violation.

Somewhat, yeah.

[J. J.]

I will note that the trial committee is an option, but is not required by RONR.  It may be be a very good option in some cases.

I will also note that there is no prohibition in RONR against members of an investigating committee serving on a trial committee and in cases where the assembly tries the case, the investigating committee does effectively serve on the jury (along with the prosecutor and, potentially, a victim). 

[Gary Novosielski]

On 5/10/2023 at 12:33 AM, J. J. said:

I will note that the trial committee is an option, but is not required by RONR.  It may be be a very good option in some cases.

I will also note that there is no prohibition in RONR against members of an investigating committee serving on a trial committee and in cases where the assembly tries the case, the investigating committee does effectively serve on the jury (along with the prosecutor and, potentially, a victim). 

What about:

63:22 ...
A special committee appointed to hear a trial must be composed of persons different from those on the preliminary investigating committee. This resolution can either be offered with the names of the members of the proposed trial committee specified as in the example, or it can contain a blank so as to leave the manner of their selection to the assembly

[Josh Martin]

On 5/9/2023 at 11:33 PM, J. J. said:

I will note that the trial committee is an option, but is not required by RONR.  It may be be a very good option in some cases.

I will also note that there is no prohibition in RONR against members of an investigating committee serving on a trial committee and in cases where the assembly tries the case, the investigating committee does effectively serve on the jury (along with the prosecutor and, potentially, a victim). 

I have no disagreement that when the trial is held before the full assembly, the investigating committee, the managers, and others will serve on the "jury."

But I am not certain as to your statement that "there is no prohibition in RONR against members of an investigating committee serving on a trial committee." The rule which gives rise to this question reads as follows:

"Resolved, That a trial committee consisting of Mr. H as chairman and members A, B, C, D, E, and F be appointed to try the case of J.M. and report its findings and recommendations. [A special committee appointed to hear a trial must be composed of persons different from those on the preliminary investigating committee. This resolution can either be offered with the names of the members of the proposed trial committee specified as in the example, or it can contain a blank so as to leave the manner of their selection to the assembly.]" RONR (12th ed.) 63:22, emphasis added

This certainly seems to provide some prohibition in regards to the membership of the trial committee and the investigating committee. Are you suggesting, perhaps, that the proper interpretation of this sentence is that there can be some overlap in membership between these committees, so long as the membership of the committees is not identical?

[J. J.]

On 5/10/2023 at 10:42 AM, Gary Novosielski said:

What about:

63:22 ...
A special committee appointed to hear a trial must be composed of persons different from those on the preliminary investigating committee. This resolution can either be offered with the names of the members of the proposed trial committee specified as in the example, or it can contain a blank so as to leave the manner of their selection to the assembly

I missed that; I think the rule could be suspended to permit it.  The reason may be that the investigators will likely be witnesses, though the could be managers in a full trial.  I would also note that in the case of Committee on Discipline, it would be standard practice 63:39.

 

[Gary Novosielski]

On 5/10/2023 at 1:18 PM, J. J. said:

I think the rule could be suspended to permit it. 

I'm not so sure.  Rule suspensions aren't supposed to last beyond adjournment.

[J. J.]

On 5/10/2023 at 5:08 PM, Gary Novosielski said:

I'm not so sure.  Rule suspensions aren't supposed to last beyond adjournment.

To appoint someone to a committee, that would be a rule of order that takes place within a single session. 

[Gary Novosielski]

On 5/10/2023 at 5:45 PM, J. J. said:

To appoint someone to a committee, that would be a rule of order that takes place within a single session. 

Yes, but the rule speaks not just of appointment but of "being composed", which continues beyond the current session.  It's similar to the distinction between running for office vs. holding office.

[J. J.]

On 5/10/2023 at 5:54 PM, Gary Novosielski said:

Yes, but the rule speaks not just of appointment but of "being composed", which continues beyond the current session.  It's similar to the distinction between running for office vs. holding office.

This is not an office.  That is where I draw the difference. 

The rules relating to the establishment of a committee are rules in the nature of a rule of order.  This particular is actually from a book with "Rules of Order" in the title and there is no requirement that this be established in the bylaws. 

[Gary Novosielski]

On 5/10/2023 at 7:41 PM, J. J. said:

This is not an office.  That is where I draw the difference. 

The rules relating to the establishment of a committee are rules in the nature of a rule of order.  This particular is actually from a book with "Rules of Order" in the title and there is no requirement that this be established in the bylaws. 

I didn't say it was an office, I said the distinction between appointing and serving was similar.  And the continuing nature of a committee is not a rule relating to the orderly conduct of business in the context of a meeting.

[J. J.]

On 5/10/2023 at 8:03 PM, Gary Novosielski said:

I didn't say it was an office, I said the distinction between appointing and serving was similar.  And the continuing nature of a committee is not a rule relating to the orderly conduct of business in the context of a meeting.

If we were referring to an office, I would agree.  We are not and I see a strong distinction.

A committee can be created by special rules of order, which, by definition, relate to the transaction of business within a meeting.