Witnesses testifying in court have such "judicial immunity"; this is a longstanding principle, animated by a worry that otherwise angry litigants would otherwise routinely sue witnesses who testified against them, and that the threat of such lawsuits would deter witnesses from coming forward. (Prosecutors can of course still prosecute witnesses who they think were lying, but that requires an independent and generally disinterested judgment by the prosecutor; whether to file a civil lawsuit would be at the discretion of the litigant.) But does this apply to noncourtroom hearings, including ones in private organizations?
Friday's Second Circuit decision in Khan v. Yale Univ., written by Judge Reena Raggi and joined by Chief Judge Debra Ann Livingston and Amalya Kearse, has just certified that question to the Connecticut Supreme Court:
In 2015, while both were students at Yale University, defendant "Jane Doe" accused plaintiff Saifullah Khan of sexual assault. As a consequence, Yale initiated university disciplinary proceedings against Khan, and the State of Connecticut criminally charged him with sexual assault. Khan and Doe each testified at both proceedings—in each other's presence, under oath, and subject to cross examination at trial, but with none of those procedures at the university hearing. Holding the prosecution to a proof-beyond-a-reasonable-doubt standard at trial, a jury acquitted Khan of all criminal charges. Applying a lesser, preponderance standard of proof to its disciplinary proceeding, Yale found Khan to have violated its Sexual Misconduct Policy and expelled him.
Khan seeks to litigate Doe's sexual assault accusations for a third time, suing Doe in the United States District Court for the District of Connecticut … for defamation and tortious interference with contract, claims on which he would bear a preponderance burden at any trial. {In the same complaint, Khan also sued Yale and various of its employees for violating Title IX of the Education Amendments of 1972, as well as for state law breaches of privacy, contract, and the implied warranty of fair dealing, and for negligent and intentional infliction of emotional distress.}
