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University of Texas ‘Blueprint’ for Campus Police Raises Fairness Concerns

By March 11, 2016

As Inside Higher Ed reported last week, the University of Texas System has come out with a manual aimed at training UT campus police officers to respond to reports of sexual assault in a more “victim-centered” way:

Police officers at all 14 University of Texas campuses will soon be trained to follow new investigative protocols aimed at changing how campus law enforcement officers interview and support victims of sexual assault, the system announced today. A new 170-page manual, called “The Blueprint for Campus Police: Responding to Sexual Assault,” instructs the system’s 600 sworn police officers to replace “tradition with science” when investigating sexual violence.

It is important that UT envisions a substantial role for law enforcement in responding to and investigating claims of sexual assault on campus. Sexual assault is a serious crime, and FIRE has long argued that campus judiciaries are ill-equipped to handle it alone. We are happy to see that UT recommends memoranda of understanding (MOUs) between universities and law enforcement, which would “set forth a shared understanding about the roles and responsibilities” of each entity. (Of course, whether an MOU is helpful or insufficient depends on the content of the document, which cannot be evaluated until it is presented.)

However, parts of this blueprint raise serious concerns about exactly what the role of campus police will look like at UT institutions. In particular, Section 7 of the manual, billed as a “toolkit” for police investigators, warrants further discussion. Some of Section 7’s recommendations, such as the recommendation that police investigators ensure that they act with “patience and compassion” towards someone who may have just suffered serious trauma, are wholly reasonable. But FIRE is deeply concerned by the recommendation that police investigators—who even by the report’s own admission are supposed to serve as “neutral fact finders”—should deliberately conduct their investigations in such a way as to “anticipate” and “counter” possible defense strategies.

One of the most disturbing of these recommendations relates to the defense strategy of “impeachment by contradiction,” which happens when “[a] witness testifies to facts at the trial that are different from facts recorded in their case documentation.” To prevent the defense from being able to do this, the report essentially suggests that investigators avoid creating any record in which parties might make contradictory statements. So, investigators should “avoid repeating a detailed report” when conducting follow-up interviews, and they should “reduce the number of reports prepared by investigators,” all to limit the defense’s ability to challenge the prosecution’s case.

An investigator who is trying to anticipate and counter defense strategies in the course of his/her investigation is not acting as a neutral fact-finder—that is, someone who is trying to find out what actually happened. It’s one thing to expect investigators to take steps to ensure that relevant evidence will be admissible, such as ensuring that a suspect is properly Mirandized before questioning or that evidence is properly handled so as to avoid chain-of-custody questions. It’s quite another thing to ask that they refrain from documenting what could be characterized as relevant exculpatory evidence—inconsistencies in a party’s story—in order to help one party’s case. That isn’t the role of a neutral fact-finder.

FIRE is glad to see that UT envisions a substantial role for law enforcement in the handling of claims of sexual assault. But we must resist any recommendations that would encourage the unfair and biased investigatory procedures that currently plague so many campus judicial systems to bleed over into the criminal justice system.