For the Defense - Vol. 5, Issue 4 - 14

which means that the analysis may not rely on
a " generalized, hypothetical, or speculative
belief that the respondent may pose a risk to
someone's physical health or safety, " or be based
on " general assumptions about sex, or research
that purports to profile characteristics of sex
offense perpetrators, or statistical data about the
frequency or infrequency of false or unfounded
sexual misconduct allegations. " 28

Risk of Exclusion of Exculpatory Information
The exclusion of certain statements by
unavailable parties and witnesses could present a
pitfall for respondents seeking to rely on certain
aspects of those statements during a live hearing to
adjudicate responsibility. The regulations require
that colleges and universities offer live hearings
(which can be by video with participants in
different locations) where 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. " 29 The Department of Education
attempted to address a recurring unfairness in
disciplinary hearings by prohibiting a decisionmaker from resolving a credibility problem in favor
of the party whose statements remain untested
through cross-examination.30 The Department
concluded that the principle of cross-examining a
witness " before allowing statements to be used is
so deeply rooted in American jurisprudence that
ensuring that these final regulations reflect that
fundamental American notion of justice increases
party and public confidence in the legitimacy
of Title IX adjudications in post-secondary
institutions. " 31
Thus, the regulations warn that " [i]f 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. " 32
This rule may prove helpful in a scenario in which
a respondent chooses not to appear at the hearing
or answer cross-examination questions because of
his position in a concurrent criminal proceeding,
because his mere absence from the hearing or his
refusal to answer questions would not affect the
determination regarding responsibility in the Title
14

For The Defense l Vol. 5, Issue 4

IX grievance process.33
Section 106.45(b)(6)(i) directs a decision-maker to
reach the determination regarding responsibility
based on the evidence remaining even if a party
or witness refuses to undergo cross-examination
by the other party's advisor. So, even though the
refusing party's statement cannot be considered,
the decision-maker may reach a determination
based on the remaining evidence so long as
no inference is drawn based on the party or
witness's absence from the hearing or refusal to
answer cross-examination (or other) questions.
The Department of Education declined 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 decisionmaker-even when given training in how to
impartially conduct a grievance process-may not
be equipped to conduct the adjudication. " 34
The
Department
interprets
the
term
" statements " according to " its ordinary
meaning, " but clarifies that it " does 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. " 35 The Department does
not explain why it excludes videos from this
category, but states that documents such as police
reports, Sexual Assault Nurse Examiner (SANE)
reports, and medical reports cannot be relied on
to the extent that they contain statements of a
party or witness who has not submitted to crossexamination.36 As another example, consider
a scenario in which a complainant makes a
statement to her friend who then is interviewed
by the school's investigator, and the complainant
later refuses to submit to cross-examination at a
live hearing, but her friend agrees to appear. If
the friend's testimony consisted of recounting the
complainant's statements, then, according to the
Department of Education, it " would be unfair and
potentially lead to an erroneous outcome to rely
on statements untested via cross-examination.
Further, such a modification would likely operate
to incentivize parties to avoid submitting to crossexamination if a family member or friend could
essentially testify by recounting the party's own
statements. " 37



For the Defense - Vol. 5, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 4

Contents
For the Defense - Vol. 5, Issue 4 - 1
For the Defense - Vol. 5, Issue 4 - 2
For the Defense - Vol. 5, Issue 4 - Contents
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
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