investigators | business fraud | criminal defensecivil litigation
Private colleges, cross examination and sexual misconduct investigations
Dec.16.2019
To meet standard of “basic fairness” under state law, do private colleges have to provide opportunity for cross examination as part of a sexual misconduct investigation?
The 1st Circuit held: NO - Massachusetts Supreme Judicial Court has made it clear [Schaer v. Brandeis in 2000] that private colleges are not required to comply with federal due process to provide basic fairness to students in disciplinary investigations such as an opportunity to cross examine witnesses. Judge Lynch wrote: "BC is not a public university or a government actor and is not subject to due process requirements.”
The 1st Circuit held: NO - Massachusetts Supreme Judicial Court has made it clear [Schaer v. Brandeis in 2000] that private colleges are not required to comply with federal due process to provide basic fairness to students in disciplinary investigations such as an opportunity to cross examine witnesses. Judge Lynch wrote: "BC is not a public university or a government actor and is not subject to due process requirements.”
Privacy, surveillance & civil litigation: a Massachusetts guide for private investigators
Apr.05.2018
The Massachusetts Bar Association hosts a good summary of privacy laws as they apply to video surveillance in Massachusetts civil litigation, including insurance cases. One of the leading cases in Mass. is DiGirolamo v. D.P. Anderson & Associates, Inc., The court wrote that investigators may generally observe, or photograph a person in public places. A gray area arises when a person enters the privacy of their own home. The court looked at 4 scenarios as to whether a private investigator violates a person's statutory right to privacy:
~ the investigator looks through a window into an apartment with the naked eye;
~ the investigator looks with the naked eye when a person walks out onto a balcony;
~ the investigator photographs, or looks at the person on a balcony with enhanced vision;
~ the investigator photographs or looks at a person inside the home with enhanced vision.
The Mass. court concluded that only the fourth scenario would constitute an unreasonable and substantial interference with the plaintiff’s right to privacy.
The court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States. It also quoted a Second Circuit Court of Appeals’ case United States v. Taborda: “Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”
Written by lawyers Joseph M. Desmond & David Viens, this article has some good information on Massachusetts state laws applicable to video surveillance, audio recordings, pretext interviews and pretrial discovery.
~ the investigator looks through a window into an apartment with the naked eye;
~ the investigator looks with the naked eye when a person walks out onto a balcony;
~ the investigator photographs, or looks at the person on a balcony with enhanced vision;
~ the investigator photographs or looks at a person inside the home with enhanced vision.
The Mass. court concluded that only the fourth scenario would constitute an unreasonable and substantial interference with the plaintiff’s right to privacy.
The court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States. It also quoted a Second Circuit Court of Appeals’ case United States v. Taborda: “Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”
Written by lawyers Joseph M. Desmond & David Viens, this article has some good information on Massachusetts state laws applicable to video surveillance, audio recordings, pretext interviews and pretrial discovery.