Filed Under: Investigator Role
Can the investigator testify, either voluntarily or in response to a question from a party or from the decision-maker, about the investigator’s report or recommendations, at a Title IX grievance process hearing?
Yes. In the Preamble to the Title IX regulations at 30314, the Department contemplates that an investigator might be a witness: The Department further notes that § 106.45(b)(6)(i) already contemplates parties’ equal right to cross-examine any witness, which could include an investigator, and § 106.45(b)(1)(ii) grants parties equal opportunity to present witnesses including fact and expert witnesses, which may include investigators. Note, however, that in the context of a hearing held by a postsecondary institution or on behalf of a postsecondary institution by a consortium or other third party, an investigator may not testify as to statements made by others, including the complainant or respondent, if the individual who made a statement does not submit to cross-examination. 34 C.F.R. § 106.45(b)(6)(i).