Universities Must Allow Cross Examination in “he-said she-said” Sex Misconduct Cases, Court Says

Colleges must provide an opportunity for cross examination in sexual misconduct cases where credibility of the parties is the main issue.

This was the opinion of the federal Sixth Circuit Court of Appeals when it found in favor of a college student accused of sexual misconduct. You can read the full case here.

This case will have a great impact on the way colleges in Michigan conduct sexual misconduct hearings.

What Happened in the Case

John Doe and Jane Roe were University of Michigan students.

The case boiled down to a he-said she-said case. Doe and Roe went home together after a party. They had sex. Doe said the evening was consensual. Roe said she was too drunk to consent.

There were 23 other witnesses – however, these witnesses essentially repeated what Doe and Roe told them about the situation. The only exception was a young woman who spoke with Roe shortly after Roe left Doe’s room.

Roe filed a sexual misconduct complaint with the University of Michigan. The Title IX law requires universities to investigate allegations of sexual assault and sexual harassment. Schools have wide latitude to choose the manner in which the allegations are investigated.

How are Allegations of Sexual Misconduct Investigated at U of M?

At Michigan, an investigator speaks to the accuser and accused, interviews witnesses, and reviews evidence. The investigator then makes a decision. Students may submit questions for the investigator to ask of the other side. The investigator then can choose whether to ask the questions at all and in what form and manner the questions are asked. Importantly, the University provides no opportunity for the parties to cross examine each other in a live hearing.

The investigator then decides whether the allegations meet the legal standard of evidence called the preponderance of the evidence. This is a much lower standard of evidence than the proof beyond a reasonable doubt in a criminal trial.

The University’s Decision

Following the investigation, the investigator found in favor of Doe. Roe appealed the decision. On Appeal, the University found in favor of Roe. Doe sued in federal court, arguing the University denied him Due Process of the Law and violated Title IX. The case reached the federal Court of Appeals when the trial court dismissed the case.

The Court of Appeals Decision

In the end, the Court sided with the accused student. The Court ruled that the University violated the Doe’s Due Process Rights when it denied him the opportunity to cross examine Roe.

Why is Cross Examination so Important?

Cross examination is a crucial part of criminal trials. Cross examination has been described in legal precedent as the greatest legal invention for uncovering truth that has ever been invented. It is a way to reveal inconsistencies in a story or a witness’s bias.

Most importantly, cross examination tests a witness’s credibility. In a he-said she-said case, credibility is the most important factor in the decision-maker’s finding. There is no substitute for live questioning of a witness in front of the decision-maker. There is a benefit to the parties as well as the decision-maker.

The Court said this ruling would not be too burdensome on the University. Indeed, the University  already provides live hearings with cross examination in misconduct cases – just not sexual misconduct cases. This will have to change soon based on this and other federal court opinions. However, this ruling might not mean cross examination will be a part of all college six misconduct cases, but rather those where the case is a credibility contest between two parties and no corroborating evidence.

Contact Us at 734.883.9584

Call Sam Bernstein at 734.883.9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Defense Lawyer in Ann Arbor.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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