The Standard and Best Advice. Here's the first and best piece of common, standard, sound, wise, and critical advice for any college or university student facing misconduct allegations and charges: don't speak to misconduct officials without first consulting a skilled and experienced academic misconduct defense attorney. Don't talk without counsel. You have far too much riding on the outcome of those misconduct charges to make your first step a big misstep. Instead, promptly locate, call, consult, and listen to the informed and helpful advice of an academic misconduct defense attorney. That attorney is only a telephone call away. Consult and retain premier national academic misconduct defense attorney Joseph D. Lento and the Lento Law Firm. Call 888.535.3686 or go online.
Mistaken Assumptions. Some accused students and their friends and family advisors assume that to not talk, out of hand and uninformed, to school and other misconduct officials is to hide things, manipulate the truth, and cheat the system. They assume that a responsible accused student would talk early, often, openly, and freely, telling the truth to anyone who would listen. They also assume that to not talk suggests guilt rather than innocence. They assume that by talking, an accused student can dispel the cloud of suspicion that the allegations and charges hung over the accused student's head. They assume that if the accused student can just get the full story out in the open, the misconduct charges will go away. Experience, though, shows the fallacy of every one of those assumptions. Those assumptions are not only wrong. Those assumptions imperil the accused student.
Many Better Reasons Not to Talk. The reasons are many for consulting an academic misconduct defense attorney before speaking with school personnel or other officials about the misconduct allegations or charges. The reasons for not talking are also sound, legitimate, fair, moral, and otherwise appropriate. The reasons for not talking rest in part on the demonstrably imperfect nature, conflicting goals, political biases, ideological prejudices, and rank corruption of many misconduct officials and systems. But the reasons for not talking also rest on important rights, privileges, and principles that preserve the civility, justice, fairness, and order of American society.
Who Benefits from Not Talking. The explanations below make it obvious why consulting an attorney advisor before talking benefits the accused student. No one considering those reasons should have any doubt about that. But the accused student does not just benefit himself or herself by not talking without first consulting. The accused student benefits everyone by consulting an attorney advisor. The accused student benefits the school accusing the student of misconduct, the school's misconduct officials, the accused student's friends and family, and any involved professors or academic advisors. The accused student also benefits campus or local police and prosecutors if those officials are involved or may become involved. And perhaps most of all, the accused student benefits the accuser or accusers. No one truly gains when the accused student talks out of hand before an attorney advisor consultation informs the accused student, as the following explanations show.
The Conflicting Interests of Misconduct Officials
When an accused student answers questions, gives statements, or submits to an interview or interrogation, the role and interests of the investigator soliciting the information is absolutely critical to how the student's information gets interpreted and misinterpreted, construed and misconstrued, used, twisted, distorted, and abused. Communication, especially oral communication, is never truly a one-way street. The speaker's assumptions about the listener's competence, fairness, interest, motives, and intent all affect how the speaker presents the information. The listener's questions, comments, demeanor, body language, and subtle or not-so-subtle encouragement and discouragement also greatly influence the content, quality, and even the accuracy of the speaker's words.
These insights lead to the first good reason for an accused student not to talk without first consulting an academic misconduct defense attorney: the accused student needs to know the questioner's role and interest for the accused student to give accurate and reliable information. Before speaking, you'd better know who is asking you the questions and what they're going to do with your answers. Misconduct proceedings aren't always fair and balanced. Everyone, even school officials and police, comes to misconduct proceedings with their own hidden biases and agendas. Consider the role and interest of each of the following actors often involved in student discipline matters.
Professors. Professors can be the first person with whom an accused student wishes to speak, especially when the accusations have to do with cheating or with classroom misconduct like drunkenness, harassment, bullying, and disorderly conduct. The accused student often wants to speak to the professor to get the professor's information, observations, and evaluation. The accused student wants to find out what the professor knows and believes, including whose side the professor is on. The accused student may also speak to the professor to get the professor's candid advice about what the accused student should do. The accused student may also speak to the professor to attempt to influence the professor's view.
Professors, though, have several conflicting roles beyond being a reliable student advisor or reporter of facts. In many schools, professors are the first-line decision-maker on misconduct involving their course and classroom. Professors aren't advising. They're deciding. Professors also have an interest in classroom and course control, including authority over students and their conduct. Professors also have a reputation and standing to maintain, not just with students but also with colleagues, administrators, misconduct officials, and other constituencies in and outside the school.
These concerns grow when the professor is the one who made the accusation of student misconduct. If the professor made the accusation, the professor may prefer that the accusation stick, even if information comes to light that the accusation was erroneous. That interest presents a rank conflict for the professor giving the student any reliable advice. It also creates an interest for the professor to ignore or even twist the student's information. It sounds harsh, but students whom a professor accuses of misconduct should be wary of trusting the professor with the student's information. Don't talk to professors without first getting the advice of an independent academic misconduct defense attorney.
School Advisors. Students accused of misconduct also often wish to speak with school advisors. An accused student facing cheating charges may, for instance, seek advice and information from an academic advisor who knows academic expectations and rules. Likewise, an accused student facing behavioral misconduct charges for things like alcohol abuse, misuse of school computers, or vandalism may seek advice and information from a student dean or other support staff who interpret the school's conduct code and know common violations.
But once again, school advisors have several roles and interests beyond giving an accused student sound information and independent advice. Academic advisors ordinarily help students with academic skills and resources, course selection, major and minor selection, and other academic interests. Academic advisors aren't generally trained, equipped, and devoted to academic misconduct dispute resolution. An academic advisor may give the accused student short shrift rather than thoughtful advice because of the advisor's lack of skill and experience with academic misconduct or time and effort to devote to the subject. Academic advisors just may not be that helpful with things like cheating charges. Their lack of responsibility and interest may lead them not only to give uninformed advice but also to misreport information that the accused student shared.
Student deans and other support staff have similar role and interest conflicts. They may have little or no institutional responsibility for misconduct matters and thus have training or experience and no time and effort to devote to advising an accused student reliably. If they do have misconduct roles, though, then those roles are usually in even clearer conflict with the accused student's interests. Their employment by the institution, long-term relationships with faculty members and administrators, and institutional responsibility in misconduct matters would pit those interests against the accused student's interest in sound advice and fair reporting. Given those conflicts, a student dean or support staff member could easily misremember, misreport, and distort material information that the accused student shared. Don't talk to school advisors without first getting the advice of an independent academic misconduct defense attorney.
School Misconduct Officials. The conflicts of interest are most clear when an accused student considers speaking with school misconduct officials and investigators. Students accused of misconduct often wish to speak with school misconduct officials and investigators. Speaking with misconduct officials and investigators is especially tempting to an accused student because those officials and investigators often invite and advise the accused student to do so. They may even subtly pressure the accused student to do so, inferring if not outright stating that refusing to talk may harm the accused student.
Yet speaking to school misconduct officials, including school investigators, can be the most hazardous of all because those officials can have the strongest conflicts of interest. At many schools, misconduct officials have multiple roles. They may have the duty to protect the accuser or purported victim by issuing and enforcing no-contact orders, restrictions, and suspensions. That duty stands directly against the accused student's interest in continuing school as usual. Misconduct officials generally have the duty to gather information and evidence for the charge. That duty stands directly against the accused student's interest in disproving the charge. Misconduct officials also play the prosecutorial role. Whatever information is out there, they need to use it to prove the charge. Once again, that interest stands in direct opposition to the accused student's interest in defense, dismissal, and exoneration of the charge.
School misconduct officials may also be preliminary or final decision-makers on whether the charge is valid and reliable. Their decision-making role may include whether to dismiss or advance the charge, what findings to make supporting the charge, and even what sanctions to impose based on misconduct findings. Those decision-making roles and interests once again conflict with the student's interest in sound, independent, and candid advice in defense of the charge. Above all, misconduct officials are responsible for advancing and resolving the charge, clearing the school's docket of the matter in an efficient, expeditious, and resource-preserving manner. That docket-clearing interest once again stands directly opposed to the accused student's interest in a fair and deliberate procedure that reaches a just outcome on the charge. School misconduct officials may, for instance, advise the accused student to admit to misconduct the student did not, in fact, commit, simply to clear their docket of another time-consuming matter. Don't talk to school misconduct officials without first getting the advice of an independent academic misconduct defense attorney.
Campus Police. Students whom the school accuses of misconduct also sometimes wish to speak with campus police, local police, sheriff's officers, detectives, prosecutors, or other law enforcement officials. Speaking to police can be tempting because that's what police want those accused of misconduct and crimes to do. Don't misunderstand the constitutional privilege against self-incrimination discussed further below. That privilege does not prevent police detectives and investigators from contacting the accused student, asking, and encouraging the accused student to speak. The privilege only prevents police from interrogating a suspect when the suspect affirmatively asserts the privilege. If the student faces allegations of school misconduct that also violated criminal laws, then the police may contact and attempt to question the student.
When the police question an accused student, they have direct conflicts of interest against the student's own interest. Police may tell the student that speaking with them will help the student disprove the allegations, which is the student's interest and goal. But disproving the allegations is not the police role. Just the opposite: the police's role is instead to gather evidence of a crime. When a suspect speaks to the police, the suspect is sharing information with officials who have the opposite interest from the suspect's interest. Miranda rights tell it all: anything you say can and will be used against you. Don't talk to campus or local police, or other law enforcement officials, without first getting the advice of an independent academic misconduct defense attorney. Consult and retain premier national academic misconduct defense attorney Joseph D. Lento and the Lento Law Firm. Call 888.535.3686 or go online.
The Unreliable Quality of Unadvised Speech
Conflicts of interest are just one big reason for an accused student not to speak about the accusations without first consulting with an independent academic misconduct defense attorney. Another big reason is the unreliable quality of unadvised, uninformed, ill-considered, unprepared speech. Consider which speech is more comprehensive, complete, trustworthy, and accurate: (1) spur-of-the-moment, spontaneous, off-the-cuff conversation with a person whose interest and expertise the speaker does not know before the speaker has complete and reliable information about the facts, context, and circumstances, while the speaker is mentally and emotionally unprepared, remembered and later shared by the listener without recording or notes; or (2) well-thought-out, deliberate, informed, and advised answers, based on available documentation and evidence, given to specific, well-formed, and fair questions from a trained and independent official, seeking relevant and material information, captured and recorded by reliable means. The answer is obvious: the latter speech, which is what consulting with an academic misconduct defense attorney produces.
The Foundation for Sharing Information. Attorneys with dispute-resolution training and hearing or trial experience know that information is only as good as its foundation. A witness, even a defendant party witness like an accused student in a school misconduct proceeding, can only accurately say what they know. Witnesses must have observations supporting what they relate. Uninformed and unadvised witnesses are only too happy to speculate about things they don't know. The first advice an academic misconduct defense attorney may give an accused student before the accused student speaks is not to guess, conjecture, or speculate. If you don't know, just say you don't know. Skilled investigators are good at getting accused students to speculate, meaning saying things that the accused student doesn't really know. That's why investigators use suggestive, leading questions.
The Hazard of Speculation. The reason that an accused student should not speculate is that speculation is unreliable, often later proved to be inaccurate. When an accused student assumes that something that an investigator suggests must be true, the accused student may have admitted to things that are not facts. Worse still, the accused student may have admitted to things that implicate the student in misconduct. Investigators ask questions not just to get information, like “What happened?”, but also to gain admissions to information that the accused student doesn't know, like “Isn't it true that she didn't know what you were up to?” An academic misconduct defense attorney helps an accused student stick to the facts, sharing only what the student knows.
Reliable Recording and Reporting of Shared Information. Another hazard of speaking without attorney advice is that the accused student may share information with officials and others who are not reliable recorders and reporters. When, for instance, a student speaks informally to a professor or advisor, the professor or advisor may not audio record or even take accurate notes of the conversation. But later, the same professor or advisor may attest to admissions the accused student supposedly made when the accused student said nothing of the sort. It's the jail snitch problem. Jail cellmates are notorious reporters of false admissions. When an accused student orally shares material information about the misconduct charges, the accused student should ensure that the information gets accurately and reliably recorded and reported. An academic misconduct defense attorney will advise the accused student only to speak when having good reason to trust the listener's recording and reporting.
Multiple Conflicting Records. Another reason why an academic misconduct defense attorney would advise an accused student client not to speak frequently, freely, and indiscriminately is so as not to create multiple conflicting records. One way that prosecutors undermine the credibility of a defendant's testimony is to show that the testimony has changed with each relating of it. Repeated accounts of the same event inevitably lead to small and innocent differences in the accounts. That's the nature and hazard of communication and its subtleties. It can sound like the story has changed, suggesting fabrication, when instead, the speaker is just telling different details in different ways. But misconduct officials may construe those differences to mean that the accused student is lying. The general rule for a suspect accused of a serious wrong is to speak only when adequately prepared to speak, before a reliable recorder and reporter, and just once.
The Use of Speech Against You. Another reason why an academic misconduct defense attorney would advise an accused student client not to speak other than with a firm factual foundation, to reliable recorders and reporters, and just once, is because school misconduct officials will routinely use the accused student's speech against the accused student. Students often assume the best of school misconduct officials, as if those officials have the accused student's interest at heart. But, as indicated above, Miranda rights prove the opposite of official intentions: anything you say can and will be used against you. Accused students thus cannot and should not rely on giving multiple uninformed accounts freely to unreliable recorders and reporters. What the accused student says in that manner, school officials will use against the accused student. An academic misconduct defense attorney will advise the accused student as to when the accused student can reliably and helpfully tell the accused student's side of the story.
Constitutional and Procedural Rights
Another reason that students accused of school misconduct should consult an academic misconduct defense attorney before speaking with school officials is that accused students have constitutional and procedural rights. The key constitutional right is the Fifth Amendment privilege against self-incrimination. The Fifth Amendment privilege against self-incrimination prevents police, prosecutors, and courts from compelling a criminal defendant to implicate himself or herself in crime. It's up to the government to prove the crime, not up to the individual to admit to a crime that the government cannot prove. The privilege against self-incrimination is a safeguard against interrogation abuses. Aggressive interrogators can get an individual to admit to anything the interrogator wishes, depending on the interrogator's means. Torture, sleep deprivation, food and water deprivation, threats, and other coercive means produce results, although false or unreliable results. The Fifth Amendment rightly doesn't allow it.
A corollary of the Fifth Amendment privilege against self-incrimination is that the government cannot use the defendant's exercise of the privilege and refusal to testify against the defendant in the criminal case proceeding. Under Griffin v. California, 380 U.S. 609, 615 (1965), the prosecutor cannot argue that the defendant's silence means the defendant's guilt. Indeed, constitutional law requires the judge to tell the jurors that they may not use the defendant's silence against the defendant because the defendant has that Fifth Amendment right. Another corollary of the Fifth Amendment privilege is that the prosecution cannot use against the defendant, testimony, or other evidence that the prosecution received from police violation of the defendant's right.
Under United States v. Balsys, 524 U.S. 666, 672 (1998), an accused student may assert the Fifth Amendment privilege not only in a criminal case but also in a civil case or administrative proceeding. Under Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), an administrative body may draw an inference against the accused student who refuses to testify. But many colleges and universities maintain in their misconduct policies and procedures that the school will not construe a refusal to testify against the accused student. Indeed, Title IX regulations currently specifically grant students accused of Title IX sexual misconduct the privilege against self-incrimination. And the question here doesn't involve refusing to testify. The question instead involves declining to speak to every school official or investigator who happens to ask the accused student for information. In most instances, the accused student can rely on the privilege against self-incrimination and related regulatory and administrative procedural rights to speak only after consulting an academic misconduct defense attorney.
Privacy, Privileges, and Confidential Information
Another reason why an accused student should not speak with school or other officials about misconduct allegations until after consulting with an academic misconduct defense attorney is that students have privacy rights, rights to maintain certain information as confidential, and certain other state law privileges. Those privacy and confidential rights, and privileges, can protect the accused student and others from shame, embarrassment, ridicule, lost reputation, damaged relationships, and other harm. Avoiding those harms is why the law recognizes those rights and grants those protections. An academic misconduct defense attorney can help an accused student preserve the student's privacy and confidentiality rights and privileges.
Privacy Rights. Students and others have limited statutory and common law rights to prevent the disclosure of private and confidential information and observations about their conduct, appearance, finances, employment records, medical records (under HIPAA and other law), educational records (under FERPA), computer or other electronically stored records, social media accounts, and other communications, transactions, conditions, and matters. Violations of those rights can lead to statutory fines, penalties, and liability, or tort liability for intentional infliction of emotional distress and for various forms of invasion of privacy, including intrusion on the seclusion of persona, appropriation, false light, and public disclosure of private facts.
How those privacy rights work in student misconduct proceedings can be complex. School officials may have lawful access to educational and other records or private information to carry out their official responsibilities in the misconduct proceeding. But the rights can keep school officials, investigators, and others from fishing expeditions into the accused student's other private matters that have no relevance to the misconduct charges. And the privacy rights can also prevent school officials from disclosing the accused student's private records and information to others who have no need to know.
For instance, school officials may ask for the accused student's private medical records or information, private financial records, and private social media, computer files, social media accounts, and cell phone records. But school officials may have no material interest in, lawful use for, or legal right to some or all of those records and that information. The accused student's consultation with an academic misconduct defense attorney before speaking with school or other officials about the misconduct may prevent unwise, unnecessary, and embarrassing disclosure of those private records and that private information.
Discovery of the School's Information and Evidence
Reciprocal Exchanges. Another reason why an accused student should consult with an academic misconduct defense attorney before speaking with school or other officials is that misconduct proceedings should involve two-way exchanges of information, not one-way disclosures of information. When an accused student speaks with school or other officials about the accusations before consulting with an academic misconduct defense attorney, the student is likely thinking primarily about disclosing the student's information, not getting the school's information back. Yet, an investigation should not be a one-sided affair or one-way street. The accused student has just as much of a need for investigation, if not a greater need, than the school has.
Who Goes First. When an accused student consults with an academic misconduct defense attorney before meeting and speaking with school misconduct officials, the defense attorney can help the student make reciprocal demands and requests for the school's disclosure of witnesses, statements, exhibits, and other evidence. Indeed, fairness usually dictates that the school disclose the details of its charges and evidence before the accused student first speaks with school officials so that the accused student is reasonably informed and can speak accurately to the charges and evidence. If you face accusations of school misconduct and school demands that you speak with school officials in answer to those allegations, then consult an academic misconduct defense attorney so that you have the school's information and evidence before you speak. Consult and retain premier national academic misconduct defense attorney Joseph D. Lento and the Lento Law Firm. Call 888.535.3686 or go online.
The Costs of a Misstep
Another reason why a student accused of misconduct should consult an academic misconduct defense attorney before speaking with school or other officials about the charges is the high cost of a misstep. The above discussion has shown how hazardous it is for an accused student to speak early, unadvised, uninformed, and unprepared, to an official with conflicting motives and interests, under a setting where the official may not accurately record and report the student's statements. The accused student's ill-advised and unprepared disclosures and their distortion by biased school officials, can easily undermine the student's otherwise credible and strong defense. Put simply, the accused student could readily lose the misconduct case just because the student gave an ill-advised statement. Consider, though, the high costs of that hazard.
Losing a school misconduct case can obviously hurt the accused student. Reprimands, reduction of grades, loss of course credit, probation, restriction of privileges, required remediation, suspensions, dismissal, and even the withholding or revocation of a degree are all potential and common misconduct sanctions. Any of those sanctions can cause the student to lose time, money, effort, investment, graduate or other educational opportunities, jobs, and careers. But the damage to the accused student increases when the student loses the misconduct case because of ill-advised, ill-timed, speculative, and inaccurate admissions. Losing a contested case is bad enough, although the student may continue to maintain the student's innocence and may even later prove the accuser's false testimony or fabrication of evidence. But losing by foolish admission firmly establishes the charges, without credible question. Don't speak to school or other officials without first consulting an academic misconduct defense attorney.
The Role of an Attorney-Advisor
An academic misconduct defense attorney has several important roles when an accused student consults the attorney before speaking with school or other officials about the charges. The first role is educating the accused student. Students accused of misconduct need to know what's coming if they are going to aid in their own defense. Early education of the accused student can be critical to a successful outcome.
A second role for the attorney advisor is to build the accused student's communication skills before the student speaks with school or other officials. Students have natural, informal, conversational habits of communicating. Students rarely have skills communicating factually in formal and adversarial settings. Students accused of misconduct need an academic misconduct defense attorney's advice on how to communicate with misconduct officials without volunteering, speculating, opining, exaggerating, or omitting material information.
An academic misconduct defense attorney also plays an important role in monitoring the accused student's communication and interaction with school or other officials, taking the student's statement, or questioning the student. When the attorney advisor is present during a student's conversation, discussion, questioning, or interview, the attorney can ensure that the questions are fair and appropriate and that the student's answers are responsive, complete, and accurate. The attorney can correct or object to compound questions, misleading questions, questions that assume facts that no evidence has established, and questions that call for the accused student to opine and speculate. The attorney advisor can also monitor the accused student's mental, physical, and emotional condition to ensure that the student is able to give accurate, reliable, complete, responsive, and logical answers. If you face meeting and speaking with school officials about misconduct allegations, then retain a skilled and experienced academic misconduct defense attorney.
When and How to Talk
The time for the accused student to speak will come in most misconduct cases. You need not and should not rush to get your side of the story in for your school's consideration. You have a right time and a wrong time to share your side of the story. If your school has accused you of misconduct, then you should expect the right time and full opportunity to share your side of the story. The school will hear you. Its procedures guarantee you that opportunity. To refuse you that opportunity would violate due process and other rights that the school must afford you. You need not rush or force your information on school officials early in your misconduct proceeding.
The only questions are when and how to talk. If you retain an academic misconduct defense attorney before speaking with school officials, then the attorney is likely to help you speak with school or other officials only at the following time, under the following conditions, and in the following manner:
- only one time, not multiple times
- only to an unbiased and independent school official
- only with the information reliably recorded
- only on the condition that the information gets accurately reported
- only after receiving from the school any evidence supporting the charges
- only after having your attorney's education and advice on the charges
- calmly and deliberately rather than emotionally
- only in response to fair questions
- only when you have a factual foundation for your information
- never when speculating, guessing, conjecture, or opining
- only without the violation of any privacy right or privilege
If your college or university has accused you of misconduct, and school or other officials have required or requested your interview and information, then retain an academic misconduct defense attorney before speaking or sharing information. The most significant impact of speaking with school misconduct officials only after consulting an attorney-advisor is that the quality, accuracy, reliability, and utility of your information improves. Attorney consultation helps everyone, not just the accused student. Consult and retain premier national academic misconduct defense attorney Joseph D. Lento and the Lento Law Firm. Attorney Lento has helped hundreds of college and university students nationwide successfully defend and defeat false, exaggerated, or unfair misconduct charges. Call 888.535.3686 or go online.