The introduction and consideration of evidence during the hearing is subject to the following procedures and restrictions:

1. (1) Relevance: The hearing chair shall review all questions for relevance and shall explain on the record their reasons for excluding any question based on lack of relevance.
2. (2) Relevance means that information elicited by the question makes facts in dispute more or less likely to be true.

3. (3) Questions or evidence about a complainant's sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:

   1. (a) Is asked or offered to prove someone other than the respondent committed the alleged misconduct; or
   2. (b) Concerns specific incidents of prior sexual behavior between the complainant and the respondent, which are asked or offered on the issue of consent.
4. (4) Cross-examination required: If a party or witness does not submit to cross-examination during the live hearing, the hearing panel must not rely on any statement by that party or witness in reaching a determination of responsibility.
5. (5) No negative inference: The hearing panel may not make an inference regarding responsibility solely on a witness's or party's absence from the hearing or refusal to answer questions.

6. (6) Privileged evidence: The hearing panel shall not consider legally privileged information unless the holder has effectively waived the privilege. Privileged information includes, but is not limited to, information protected by the following:

   1. (a) Spousal/domestic partner privilege;
   2. (b) Attorney-client and attorney work product privileges;
   3. (c) Privileges applicable to members of the clergy and priests;
   4. (d) Privileges applicable to medical providers, mental health therapists, and counselors;
   5. (e) Privileges applicable to sexual assault and domestic violence advocates; and
   6. (f) Other legal privileges identified in RCW 5.60.060.
7. (7) Recording of live hearing: The live hearing will be audio-recorded, and copies may be provided to the parties, upon written request.

[Statutory Authority: RCW 28B.40.120(12). WSR 21-10-022, § 174-123-420, filed 4/26/21, effective 5/27/21.]