Expert Testimony & Credibility (Response 8/13/2020)
Let’s suppose a Complainant hires me as an expert witness. I give a statement as a witness during the investigation. I am called as a witness at the hearing. I testify, and then am questioned by the Complainant. The Respondent’s advisor strategically refuses to cross-examine me, and the decision-maker has no questions for me. Assuming my testimony is relevant, is my statement admissible even though I was not cross-examined, because I was willing to submit to it?
The new Title IX Rule requires postsecondary institutions to hold a live hearing and at the live hearing the decision-maker must “permit” each party’s advisor to conduct cross-examination. Thus, the Rule does not require a party’s advisor to ask cross-examination questions, but rather each party’s advisor must be permitted to ask all relevant cross-examination questions including follow-up questions. A witness has “submitted to cross-examination” by answering all relevant cross-examination questions posed to the witness by a party’s advisor.