Due Process & Cross-Examination

“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” So wrote the legal theorist John H. Wigmore, in a remark favorably quoted in by the Supreme Court in California v. Green. The Obama-era Office for Civil Rights, on the other hand, suggested that at least in some formats, cross-examination of campus sexual assault accusers could, in and of itself, provide grounds for a Title IX complaint against a university. And, quite apart from OCR’s improper pressure, most universities—institutions ostensibly committed to pursuit of truth as their reason for existence—have declined to allow meaningful cross-examination in campus sexual assault cases.

Two decisions in the past week pushed back against this system.

The University of Cincinnati has seemed particularly eager to position itself as among the most ardent defenders of unfair campus tribunals in the country. It already has been the subject of three lawsuits. The first case involved an undergraduate student whose case was simultaneously investigated by police—who claimed that university officials were improperly pressuring them to bolster the accuser’s story—and whose university tribunal featured UC ignoring potentially exculpatory video evidence.  (For good measure, the university allegedly suggested that the accused student had the burden of proof.) In the second case, UC permitted the accuser to testify—accepting her story as credible—and then flee the room to avoid cross-examination.

Judge Sandra Beckwith, in a deeply troubling opinion, suggested that the university’s handling of these cases did not violate the Constitution. A 6th Circuit panel seemed favorably disposed toward upholding the Beckwith opinion.

The most recent case, however, yielded a far better decision (which you can read here), from Judge Michael Barrett. UC, yet again, seemed to go out of its way to use unfair procedures. Here, the accuser made several statements to UC investigators, and to the local police; as the process continued, her version of events became more extreme. The police did not pursue charges. The university, however, elected to move forward; the initial contact with the accused student from a UC administrator all but presumed that the accuser was truthful, and implied that the only evidence that would interest UC was evidence that would show the accuser had charged the wrong guy. “If you have any documentation about where you were during the incident alleged in the complaint or witnesses that can speak with me about that, please let me know,” the administrator asked. (You can read the complaint here.)

After the accuser eventually settled on a version of events (in an e-mail to Jyl Shaffer, UC’s Title IX Coordinator, the accuser described her shifting descriptions, in response to the interview of the accused, as “edits for the file”) that she had consented to some but not all of the sexual acts on the night of the incident, the case moved to a hearing. The accused student then received a surprise—at the hearing, neither the accuser nor the investigator appeared. He therefore had no opportunity to use even UC’s very limited cross-examination procedures (under which he could write down questions and hope that the panel asked them of the accuser) to probe the accuser’s inconsistent statements, or to determine the methods through which the investigator reached her conclusions. (Needless to say, none of the third-party witnesses to whom the investigator spoke appeared either.) When asked if he had any questions to ask of the report, the accused student not unreasonably replied, “Well, since she’s not here, I can’t really ask anything of the report.”

The panel—reflecting current norms at UC, and relying solely on the report of an investigator—found him guilty, and he appealed, citing (among other things) his denied right of cross-examination. The appeal was rejected, with UC asserting that “the procedural safeguards he argues were missing are safeguards typically found in criminal court actions and are not required for university hearings.”

The accused student sued. UC defended the constitutionality of its actions by citing to a handful of district court cases, plus four appellate or Supreme Court cases involving high school students (Wood, Jahn, Newsome, Antone) a fifth involving a university student who pled guilty to a felony drug offense (Flaim), and a sixth (Horowitz) dealing with the academic performance of a medical school student. UC concluded it fulfilled its duties—it told the accused student about the charges, and it provided a forum, however unfair, for him to be heard. (You can read UC’s reply here.)

The university did not explain why cases involving high school students or admitted felony offenses are appropriate for a university determining the truth of a contested allegation among college students. UC did concede that the accused student never had a chance, in the university’s procedure, to cross-examine his accuser. But, in an Orwellian argument that it placed in a footnote, Cincinnati deemed it “simply incorrect to state that UC failed ‘to permit John Doe to confront his accuser.’ Rather, the cross-examination UC does afford was simply unavailable in this case because Jane Roe did not attend the disciplinary hearing.” The university offered no explanation why it permitted the accuser to avoid attending the hearing to adjudicate her own charges.

Judge Barrett disagreed with this cavalier approach to the truth. “In this case,” he noted, “the [UC] Hearing Committee was given the choice of believing either Jane Roe or Plaintiff, and therefore, cross-examination was essential to due process.” And however broadly or narrowly the right to cross-examination is conceived, the facts of this case, Graham observed, were clear: “Plaintiff was effectively denied the right to cross-examination because he was not notified in advance of the hearing that Jane Roe would not be present at the [UC] Hearing. It was plain at the hearing that Plaintiff intended to ask certain questions, but because Jane Roe was not present at the hearing, he was not able to ask those questions.”

The accused student’s lawyer, Joshua Engel, told Ashe Schow of Watchdog, “We are especially pleased that Judge Barrett recognized that cross examination is vitally important in the ‘he said, she said’ type cases. Without cross examination, an accused student has no ability to effectively challenge the credibility of his accuser and allowing an accuser to hide behind an investigative report undermines the reliability of any decision.”

Graham’s decision prevented UC from suspending the student immediately, but the case isn’t over. A broader decision last week relating to cross-examination and due process came out of state court in Washington. (You can read the opinion here.) The facts of this case, which occurred at Washington State University, were highly atypical. The allegation was statutory rape, with a 40-year-old accused student (a graduate student from Saudi Arabia) and a 15-year-old accuser he had met on-line. As in the UC case, the accuser didn’t show up for Washington State’s disciplinary hearing, which relied instead on notes from a university administrator’s interview of the two police officers investigating the case.

The student sued, alleging that WSU had violated a state law that requires universities to provide significant due process protections—the right to a lawyer, the right to cross-examine witnesses, the right to subpoena witnesses. Advancing many of the same types of arguments that UC made, and also citing pressure from Title IX, Washington State justified its decision not to run a hearing at which accuser wasn’t required to appear, and all witness questions had to be presented, in writing, to the panel, which could decide whether or not to ask them.

A three-judge appellate panel overturned the university’s decision. The opinion especially recognized the importance of cross-examination: “Because assessment of veracity and credibility were key,” the judges held, “safeguards of the subpoena power, oral testimony, and cross-examination were critical.” Indeed, the fact that the accuser didn’t testify, and therefore couldn’t be cross-examined, “undermines confidence in the outcome.”

The judges conceded that in the post-Dear Colleague letter era, the issue “is not a simple matter.” But the rights of accused students—and the need to follow Washington law—came first. The judges counseled Washington colleges to work with the state. Perhaps allowing independent state officials to run campus sexual assault investigations would relieve any burden from the court’s requirement that all colleges follow state law.

In the aftermath of a California state appeals court green-lighting a university disciplinary process that the author of the opinion said reminded him of a “kangaroo” court, it was refreshing to see judges stand up for fairness.