Cross Exam (Response 8/13/2020)
On the assumption that a witness must be questioned thoroughly about their statements at the hearing for those statements to be considered by the decision-maker, we pose this question:
If a party truly has no questions to ask via their advisor in cross-examination, can they ask something to the effect of “Is everything in your statement in the report accurate?” If the answer is yes, is the statement then able to be considered? If no, then follow-up questions can be asked. Or do they still need to ask questions based on key facts to allow credibility to be fully assessed about each individual statement?
The new Title IX Rule requires, for a postsecondary institution, that “At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This contradicts the assumption in your question – that a witness “must be questioned thoroughly.” Under the Rule, each party’s advisor must be permitted to conduct cross-examination. Thus, the Rule permits a party’s advisor (but never a party personally) to ask the question you pose in your hypothetical, and if that is the only relevant cross-examination question posed by the party’s advisor to the witness then there would be no basis for the decision-maker not to rely on the witness’s statements because the witness has “submitted” to cross-examination. See also Preamble to the Rule at p. 1181 (“to ‘submit to cross-examination’ means answering those cross-examination questions that are relevant”).