Last Updated on July 11, 2023 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
When preparing a discipline hearing defense, parents and students may wonder about witnesses and what they know. Can witnesses be contacted? What about “witness intimidation?” Will the accused student be charged with “witness intimidation” if potential witnesses are texted? What power do these witnesses have over an accused student just trying to gather evidence?
It is a bit tricky, but may depend on the purpose of the contact.
Witness Harassment and Intimidation are Prohibited
Per Education Code section 48900(o) students facing a disciplinary hearing, such as an expulsion hearing, cannot threaten, harass, or intimidate another student who may be a witness, to try to stop them from being a witness, or in retaliation for being a witness.
This section allows punishment if a student:
Harassed, threatened, or intimidated a pupil who is a complaining witness or a witness in a school disciplinary proceeding for purposes of either preventing that pupil from being a witness or retaliating against that pupil for being a witness, or both.
This has two main elements which must be met for the charge to exist:
- harassment, threats, intimidation, and
- to prevent a pupil from being a witness in or in retaliation for being a witness in a school disciplinary proceeding
Parents and students contacting witnesses must tread cautiously.
Students Contacting Students to Investigate
Element one is harassment, threats or intimidation by an accused student to a student witness. This involves the fact of what was done, and also the perception of the witness.
A tricky situation exists for a student trying to gather evidence to defend themselves in a pending expulsion matter. What if the student simply calls or texts a friend to ask what they will say at the expulsion hearing? Or, asks what they told the school? Is this witness intimidation?
This element may depend in part on the potential witnesses’ perception as well as the communication itself. Are they intimidated? Do they believe they are being threatened? Do they feel harassed? What was said?
It is possible a student witness contacted by an accused student, simply to say “Hi” or ask what they said can feel pressured, intimidated, scared or even threatened. What if the witness is the one who turned the accused student in? Their perception may be different from a neutral observer.
Most students and parents do not think about how witness contact may be perceived by the student witness or their family. However, they should, and should tread with caution.
The Purpose of the Witness Contact Also Matters
But is witness perception enough to equal witness intimidation? Not necessarily. The school also has to prove the harassment, threats or intimidation were because the student was trying to stop the student from testifying or due to the fact they testified.
In 2022, the California Court of Appeals, Third District, issued a decision which is relevant to student witness intimidation allegations. In this case, Natomas Unified School District versus Sacramento County Board of Education, which concerned an expulsion appeal, a student faced a charge of witness intimidation. This was due to the student and his parent going to a potential witnesses home to ask that witness to write a letter of support. That student and his parent refused.
When Natomas Unified found out, they charged the student already up for expulsion with an additional charge of witness intimidation. They also got the parent and potential student witness to write statements about the visit and to check a box stating they feared retaliation.
When the Court reviewed the charge of witness intimidation, it determined that the purpose of the contact was key. The Court rejected that this contact was witness intimidation as the purpose of the accused student going to the potential witnesses home was not to prevent the student from being a witness or to retaliate against that student for being a witness. Rather, it was simply to ask that witness to write a statement, which the Court said did not meet the requirements of section 48900(o).
The court indicated that a student had to have the specific intent to harass, threaten or intimidate to prevent witness testimony, or to retaliate for testimony, to find them guilty of witness intimidation. This was quite a great decision for students.
Names of Witnesses Usually Withheld So Intimidation May Be Unintentional
Often the names of the witnesses in student suspension or expulsion matters are not disclosed to the accused student or their family. So, a situation arises where unintentional contact could result in an allegation of witness intimidation.
For example, when an accused student randomly texts or messages a school friend to check in, the student may actually be texting a witness in the matter against them without knowing it. The student may then, unintentionally be perceived as intimidating that witness simply for reaching out.
If this contact is perceived as having breached section 48900(o) it due to the text or message, the student may be accused of witness intimidation and disciplined. The student will then have to defend themselves, using the fact that the student never had intent to intimidate anyone to stop them from being a witness.
It is tricky.
Social Media Witness Intimidation
What if students go on social media (Twitter, Facebook, etc.), or just talk amongst themselves, about how “bad” another student who “told” is and/or make threats to beat the student witness up (knowing or not knowing the witnesses identity)?
This could land the students talking in hot water with the school, and could create a hostile environment for the witness. The student who was suspended and who is degrading witnesses against them could be accused of bullying, threats, and witness intimidation, depending on the circumstances.
The police could even become involved, and the students may face arrest for threatening other students.
It is best not to degrade students who reported other students’ conduct, online or anywhere.
Parents Can Try to Politely Contact Witnesses Parents
Instead of a student texting a potential student witness, it is often best to leave the accused student out of investigations and evidence gathering.
Instead, if appropriate, parents should be the ones gathering evidence and potentially contacting the parents of witnesses (if appropriate). They can see if the parents would allow a student witness to speak with the parents or provide a statement. If the witnesses parents refuse, the matter is over as far as contact. Negative comments about them should not be made.
Parents can also seek witness subpoenas via the school district, for any expulsion hearing.
No student who provides information about a discipline matter should be threatened or intimidated and parents gathering evidence should tread lightly!
[originally written March 19, 2013]
Student expulsion, suspension and discipline lawyer Michelle Ball assists parents across California. An attorney located in Sacramento, she assists from Redding to Shasta, Elk Grove to Roseville, Los Angeles to Burbank, San Francisco to Santa Rosa, and all cities throughout the state.
