Assessing Evidence (Response 8/13/2020)

Evidence
Question:

Suppose the respondent’s advisor isn’t well-prepared and forgets to cross-examine the complainant during the hearing on a key statement related to credibility. What is the effect of this on the statement made by the complainant – may or may not the decision-maker consider it, and please explain why or why not?

Answer:

The new Title IX Rule requires that postsecondary institutions hold a live hearing at which each party has the opportunity to cross-examine other parties and witnesses, where such cross-examination is conducted by a party’s advisor and never by a party personally. § 106.45(b)(6)(i). If a party does not pose a cross-examination question to the other party, then the answering party cannot be said to have “not submitted” to cross-examination, and the provision of § 106.45(b)(6)(i) prohibiting the decision-maker from relying on the statements of a party who has not submitted to cross-examination would not apply.