Evidence Question (8/13/2020)
Respondent tells her best friend Callie that she really did sexually assault the complainant, Julie, At the hearing, the decision-maker asks Callie about this. Callie confirms it. The decision-maker asks respondent about it, and respondent refuses to answer. The respondent then refuses to be subject to cross-examination, at all. Do we read page 1182 of the preamble (5/6/20 version, p. 1214 of the 5/19/20) to mean that because the respondent refused to answer the question of the decision-maker, the decision-maker is able to rely on the “confession” to the extent it is relevant, and the decision-maker finds Callie credible? The provision directing the decision-maker not to rely on the confession and not draw an inference solely from Respondent’s silence are no longer applicable, because the decision-maker posed the question?
The new Title IX Rule specifies that the prohibition against relying on a party’s statements applies in the context of a live hearing in the post-secondary context if the party “does not submit to cross-examination,” § 106.45(b)(6)(i), and the same provision describes “cross-examination” as being conducted by a party’s advisor (i.e., not by the decision-maker). Thus, a party’s failure or refusal to answer a question posed by the decision-maker is not covered by the provision prohibiting the decision-maker from relying on the party’s statements. See also Preamble at p. 1182 (“This provision requires a party or witness to ‘submit to cross-examination’ to avoid exclusion of their statements; the same exclusion of statements does not apply to a party or witness’s refusal to answer questions posed by the decision-maker. If a party or witness refuses to respond to a decision-maker’s questions, the decision-maker is not precluded from relying on that party or witness’s statements.”). However if a party’s advisor of choice asks a relevant question of another party or a witness, and that party or witness declines to respond to the question, then the decision-maker is precluded from relying on any statement made by that party or witness.