Investigation of Academic Misconduct

Question

I'm not sure what to tag this question as, and I don't know if it should be on Law.SE.

If someone is being investigated for academic misconduct:

• accused of taking photos of tests and sharing it online, which is explicitly disallowed by the professor
• and during that investigation, there is no evidence of the tests on the person's cell/camera,
• but there is evidence of other crimes (completely unrelated to the university) on their cell/camera (e.g., video of this person bullying a child),

can the university/investigators take any action?

I think no, because the investigators were only to investigate academic misconduct and nothing else. But also yes, because they have evidence of improper behaviour.

Answer 1

University personnel will investigate whether the rules and norms of the university are being upheld. If an actual crime is suspected of having been committed, then in most cases they will contact the police or other authorities either in place of investigating or in parallel to their own investigation. For certain crimes they are legally obligated to do so.

I think no because the investigators were only to investigate academic misconduct and nothing else

Just because they are only there to investigate academic misconduct does not mean that they cannot report nonacademic misconduct to someone else. If they found evidence of a literal crime, I don't know why they couldn't report it to the police. (I'm not sure exactly what "Bullying a child" means, but if e.g. this included physical or sexual abuse I would certainly expect them to report it to the authorities.)

I think you are asking whether there is any covenant of confidentiality when you turn over your phone to them. That's a legal question and I'm not a lawyer, but unless explicitly agreed upon in advance I don't know why there would be. If your partner accuses you of cheating on them, you deny it, and they say, "Well then show me your phone," and upon searching your phone they find a video of you stealing a car, then your partner can certainly report you to the police even though that was not what they were expecting to find. To my mind, having your phone searched by university personnel is more like having it searched by your partner than by the police. In particular, university personnel cannot compel you to turn over your phone to them. They can ask you to, and there might be negative consequences for you if you don't (just like with your partner), but that's not the same thing at all.

Furthermore: as far as I know, university personnel may act on information they find on your phone that is unrelated to the academic honesty issue in question but otherwise violates the university's code of conduct. For instance if they found a video of you making racial slurs at a campus event, then that's not illegal but is (I hope) against their code of conduct, and so far as I know they could act on that. However I do not know exactly where to draw the line. For instance, if in an internet dating app you use language that would be disrespectful and inappropriate in university discourse, then presumably that is not their concern...but if that language involved another university official it might become more their concern, perhaps. I'm really not sure.

Let me say finally that I've heard a few times on this site from students who have had their phones searched by university officials, but as a university official (faculty member) that's something that I have never done and would not think to do in almost any situation. For instance, if during an exam I saw a student looking at their phone, then I would call attention to it, have them put their cell phone away, and pursue an academic honesty case against them. But I would not ask to see their phone: since I tell students before the exam starts what they can and can't have out during the exam (in particular, no phones), looking at their phone during the exam is cheating no matter what, and the implication that they are breaking the rules to gain an unfair advantage is more than plausible whether I see what's on the phone or not. (And what am I going to do, scream at the student to drop their phone immediately and run over to apprehend it before they can close an app? This seems silly at best.) I wonder though whether in other parts of the world academic culture is different: in the United States (and Canada; I spent 2.5 years as a postdoc there) at least, the idea that people do not have to casually turn over their personal property is quite strong.

Answer 2

A few basic legal points that apply in every jurisdiction I know of (within the Anglosphere countries):

• University powers and expectation of confidentiality: As a student, your relationship to the university is contractual. The university derives its investigative powers from its contractual relationship with you. Aside from cases of campus police who have actual police powers (which exist at a few larger universities), the standard investigative powers of university staff are based solely on your contractual relationship to the university.

• University personnel cannot compel you to turn over your phone or other personal property during their investigation; they may make an inference from your failure to do so, but they do not have the power to confiscate your property.

• If you give your phone to the university for an investigation, there would be an implied expectation of confidentiality with respect to the material on your phone and you would have some legal rights in relation to that expectation of confidentiality. If the university discloses information it shouldn't, you may have a cause of action for breach of confidence, breach of contract, etc.

• Inadvertent discovery of alternative (non-criminal) rule breach: If the university inadvertently comes across material that shows a different type of breach of their rules (that is not a crime) than the one they are investigating, this would give rise to a complicated argument over the proper scope of expectation of confidentiality when the phone was made available to them. You could mount an argument for breach of confidence in this circumstance; depending on the facts and circumstances it might or might not succeed. There is a complex set of case law on the proper scope of confidentiality in cases where an investigative body obtains information and inadvertently discovers other issues. This situation would require careful legal analysis and the result would probably depend on the specifics.

• Inadvertent discovery of a crime: If the university comes across material that shows an activity that is a crime in the course of their investigation, they can certainly report this to the police. Aside from some special cases such as lawyer-client privilege, religious-confessionals, etc., there is generally no legal recognition of any confidentiality restriction that can prevent a person from disclosing evidence of a crime to the police and other relevant government investigative bodies. In particular, if you have possession of a person's phone then you are legally entitled to report matieral on that phone that is evidence of a crime. This is such a broad power that it even applies even if you have possession of the phone illegally --- e.g., if a thief steals your phone and finds child-abuse material on it, there is no confidentiality restriction preventing them from reporting this to the police and then acting as a witness against you in a resulting prosecution.

• Admissibility of evidence of a crime: If university personnel were to find evidence of a crime on the phone then prima facie that would be admissible evidence in a resulting criminal prosecution. The only thing that might cause the evidence to be inadmissible is if the defendant could show that the discovery of the evidence came about through some unlawful search that can be considered to be an action of the government itself, such that it is considered to be "fruit of the poisoned tree". This could potentially occur in cases where campus police with actual police powers unlawfully obtain evidence from a phone.

Answer 3

This probably depends where you are but in the U.S.:

1) You are probably obligated to report crimes involving a minor as most U.S. university employees are mandatory reporters (I don't know the ins and outs of this though and maybe there's some variation regarding procedures).

2) From a legal perspective (i.e. if you were a cop or other law official), yes. I'm not sure how not being one changes things.

In the U.S., evidence one was not searching for is still considered legal if it was encountered during the legal execution of one's duties. E.g. If a police officer has a warrant to search a house for a fugitive and that officer opens a closet door to find bricks of cocaine, the home owner can be charged with possession and the cocaine would constitute legal evidence even though it was not what the cop was looking for. (The caveat being that if said officer found evidence of illegal activity in a place it would be unreasonable to search for a fugitive - say a hatbox - that evidence would be thrown out in court. This is the landmark supreme court case Mapp v. Ohio)

3) From a moral perspective, I think the university/investigators are obligated to take some action. If the student voluntary handed over their phone I don't see how you would be in the wrong. It's one thing if you explicitly said you'd fail them if they didn't hand the phone over but I imagine they willingly handed it over to avoid more drama. It would be very weird if a U.S. college student didn't know they had the legal right to not give you their cell phone.

Why don't you just contact your university's legal department?