Evidence (Response 5/27/2020)

Evidence
Question:

I understand that the regs say that the decision-maker shall not rely on statements from a party or witness who does not participate in the hearing. Does this refer to the original source of the statement or evidence, or the source at the hearing? Put more precisely, if Rob the respondent tells Walter the witness that he raped Veronica, can Walter testify to what Rob told him if Rob does not participate in hearing, but Walter does? And, another variation: if Rob the respondent tells Ivan the investigator that he raped Veronica, can Ivan testify to what Rob told him if Rob does not participate in hearing, but Ivan does (as a witness)?

Answer:

The new Title IX Rule, at § 106.45(b)(6)(i), requires postsecondary institutions to hold a live hearing with opportunity for each party (through party advisors) to conduct cross-examination. That provision also states: “If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.”

At page 1179 of the preamble to the Rule, the Department explains:

Because party and witness statements so often raise credibility questions in the context of sexual harassment allegations, the decision-maker must consider only those statements that have benefited from the truth-seeking function of cross-examination. The recipient, and the parties, have equal opportunity (and, for the recipient, the obligation) to gather and present relevant evidence including fact and expert witnesses, and face the same limitations inherent in a lack of subpoena power to compel witness testimony. The Department believes that the final regulations, including § 106.45(b)(6)(i), strike the appropriate balance for a postsecondary institution context between ensuring that only relevant and reliable evidence is considered while not over-legalizing the grievance process. (emphasis added).

At page 1181 of the preamble to the Rule, the Department states:

The prohibition on reliance on “statements” applies not only to statements made during the hearing, but also to any statement of the party or witness who does not submit to cross-examination. “Statements” has its ordinary meaning, but would not include evidence (such as videos) that do not constitute a person’s intent to make factual assertions, or to the extent that such evidence does not contain a person’s statements. Thus, police reports, SANE reports, medical reports, and other documents and records may not be relied on to the extent that they contain the statements of a party or witness who has not submitted to cross-examination. While documentary evidence such as police reports or hospital records may have been gathered during investigation and, if directly related to the allegations inspected and reviewed by the parties, and to the extent they are relevant, summarized in the investigative report, the hearing is the parties’ first opportunity to argue to the decision-maker about the credibility and implications of such evidence. Probing the credibility and reliability of statements asserted by witnesses contained in such evidence requires the parties to have the opportunity to cross-examine the witnesses making the statements. (emphasis added); (internal footnotes omitted).

At page 1168 of the Rule, the Department notes that it is declining to embrace certain exceptions to evidentiary rules commonly found in the rules of evidence that apply in criminal or civil courts of law, such as “statements against self-interest”: “The Department declines to add exceptions to this provision, such as permitting reliance on statements against a party’s interest. Determining whether a statement is against a party’s interest, and applying the conditions and exceptions that apply in evidentiary codes that utilize such a rule, would risk complicating a fact-finding process so that a non-attorney decision-maker – even when given training in how to impartially conduct a grievance process – may not be equipped to conduct the adjudication.