Why Is Cross So Feared?

John Henry Wigmore called cross examination “the greatest legal engine ever invented for the discovery of truth.” A non-lawyer partner of the disgraced Brett Socolow in TNG, a Title IX consulting business working for colleges to assure the conviction of males accused of sexual assault, Joseph Vincent, expressed a different view to the New York Times.

But Joseph Vincent, an advisory board member of the Association of Title IX Administrators, expressed skepticism about the value of adversarial cross-examinations in campus sexual assault hearings.

He said they are meant to test the credibility and demeanor of the accuser under pressure, but they are basically worthless at getting to the truth. The practice rewards those who can hire the “flashiest attack dog attorney money can buy,” he said.

Beyond the inanity of Vincent’s assertion, likely reflecting his utter ignorance of law, legal process and how cross happens, his nonsensical characterization does serve one critical purpose in the effort to have self-proclaimed “survivors” believed while denying their accuseds the opportunity to challenge their accusations: it’s a lot easier to win when the person accused can’t do anything to challenge lies, exaggerations and delusions.

One of the biggest shifts in the current Title IX rules is the requirement for a live hearing where the accuser is subject to cross-examination by the accused or his “flashy attack dog” lawyer, assuming a college student or his parents have enough money to buy one. The adamant refusal by universities to give the accused half a chance to defend himself has become one of the most critical battlegrounds in campus sexual assault hearings.

The Sixth Circuit in Doe v. Baum held that the denial of cross-examination violated due process.

Thirteen years ago, this court suggested that cross-examination may be required in school disciplinary proceedings where the case hinged on a question of credibility. Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 641 (6th Cir. 2005). Just last year, we encountered the credibility contest that we contemplated in Flaim and confirmed that when credibility is at issue, the Due Process Clause mandates that a university provide accused students a hearing with the opportunity to conduct cross-examination. Doe v. Univ. of Cincinnati, 872 F.3d 393, 401–02 (6th Cir. 2017). Today, we reiterate that holding once again if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder. Because the University of Michigan failed to comply with this rule, we reverse.

The point in Baum seems self-evident. If the issue is credibility, with one person claiming something happened and the other saying it didn’t, then the only way to decide which competing narrative is true is to test their claims by the crucible of cross examination. Is that a problem? For the accuser, you bet it is.

In the cross-examination, they asked questions such as: Why did her memory blank on certain details, but not others, like the assault itself? Why did she send Mr. Khan what they called flirty text messages before the alleged assault? And why did she wear a black cat costume for Halloween instead of a more modest one, such as “Cinderella in a long flowing gown”?

The woman, who has been called Jane Doe in the defamation case, did not respond to a request for an interview. But to women’s rights advocates, that cross-examination proves their point: The practice is used to intimidate and retraumatize victims.

Retraumatization is one of the linchpin tropes used to insulate the accuser from challenge. If she was, in fact, the victim, then to challenge her is to make her experience her trauma again, again harming the “survivor” by forcing her to relive it and demeaning her by questioning her “lived experience.” But the logical flaw is obvious. Unless and until her claims overcome scrutiny, assuming her to be the victim is to assume the outcome before the proof. Until her accusations are proven, she’s not a victim, but an accuser. Like any accuser, her claims are mere allegations until proved.

But aren’t there less onerous, less hurtful, alternatives to cross?

They also say that the hearings already have plenty of due-process rights, including the ability to respond to the investigator’s report and submit written questions to the hearing panel.

While it would be inadequate under any circumstances, this characterization is inherently disingenuous. Investigators, who are in the job because they’ve picked their side in this fight, provides conclusory reports, mischaracterizing or omitting anything that would put their conclusions in doubt. There’s no substantive response to “John Doe was not credible and did it.”

As for submitting questions to the hearing panel, assuming there is a hearing panel, the panel gets to re-write the questions to make them less “traumatizing,” or not ask at all if they don’t want to. Put aside that written advance questions don’t address lives or exaggerations that arise during testimony, submitting written questions is no assurance that any allegation is subject to challenge.

Andrew Miltenberg, a lawyer who usually represents the accused, said that cross-examination during Title IX hearings is necessary for fairness, because the proceedings are already tilted against the accused. Campus investigators are not always trained in evidentiary procedure. And there is a lower standard of guilt than in criminal proceedings.

Although the accused may submit written questions, that is insufficient, Mr. Miltenberg said, because they are vetted by a hearing committee and are sometimes reworked or not even asked.

In suing for defamation after his criminal acquittal was followed by expulsion from Yale where he was denied an opportunity to defend, it was the only way Saif Khan could challenge the story of his accuser by subjecting it to cross-examination. The reason it’s so feared by “survivors” and their army of activists, consultants and campus advocates is not that it isn’t the “greatest legal engine ever invented for the discovery of truth,” but because it is.

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