Short Take: Can The Harvard Cross Compromise Work?

At Minding the Campus, KC Johnson considers a proposal propounded by the Harvard Three.

Few academics have more credibility on Title IX issues than Harvard Law professors Jeannie Suk Gersen, Nancy Gertner, and Janet Halley. The Suk/Gertner/Halley comment criticized the proposed regulations on definitional questions, but strongly endorsed the need for the government to mandate a fair process for both sides.

Like KC, the Harvard Three have established their cred on the issue, risking censure for their failure to adhere to the Title IX orthodoxy. So what did they have to say about cross-examination at Title IX hearings?

The Harvard Law professors did urge the Education Department to mandate the Harvard Law School model rather than attorney-directed cross-examination. (Harvard Law ensures that both parties have lawyers, and then has the lawyers submit questions to the panel to be asked, with clear guidance that all questions will be asked in the order and format desired unless the questions are irrelevant.) If followed along the lines of Harvard Law, currently the nation’s fairest Title IX adjudication system, what the comment terms the “submitted questions” model would accomplish the department’s goal of providing the accused student with a meaningful chance to challenge the credibility of witnesses.

Colleges have complained bitterly about the prospect of lawyers turning their fun and folksy hearings into courtroom battles, something they are ill-equipped to accommodate on almost any level. Whether this alternative is meant to address the inability of universities to manage a hearing that could ultimately destroy a male student’s life or to address the concern that cross will traumatize “survivors,” or put off those accusers whose claims can’t survive scrutiny, is unclear. But if it serves good purposes, does it matter?

Well, yes. Yes it does. First, this proposal arrives in the context of Harvard Law School, which has a few benefits that won’t be found at most other venues. The faculty will, at least to some extent, understand the concepts of relevance and materiality. Heck, some of them may even teach it. The advisor to the accused may even have some experience with law, assuming they get a lawprof rather than a student, who can guide the accused to present a cogent defense.

In other words, Harvard Law School has the benefit of being a law school, even if it’s still Harvard. But what about other colleges, undergrads, schools where the “judges” can quote Balzac but not Blackstone?

But even if every tribunal enjoyed the benefit of law professors doing the lifting, would the idea of submitting questions serve the goal of confrontation? This is where some trench experience comes in handy. Cross isn’t what one sees on television shows, but what happens on the fly in the courtroom.

It’s not merely approaching a witness with planned questions, as if they will collapse into tears and admit their lies. It’s surgical. It begins with a purpose to expose flaws, contradictions, maybe even lies, but it happens by starting down a path and then dissecting the responses to questions. No competent cross-examiner runs through a list of questions, but rather asks one question and then listens carefully to the answer, as it begets the next question. Each answer leads to the next question; to suggest that one can write a list of questions in advance and just run down the list is to either ignore the efficacy of cross or to deny it in the hope of circumventing the cries of trauma or institutional incompetence.

The “submitted questions” model might sound appealing in the absence of any legitimate appreciation of how one dissects a bad or disingenuous response, but it’s not cross. It’s a fantasy approach that may create the appearance of confrontation without the substance. Even if the tribunal is comprised of three lawprofs from Harvard, the inability to frame follow-up questions based on the answers given reduces cross to a sham. That’s just not how it works.

15 thoughts on “Short Take: Can The Harvard Cross Compromise Work?

  1. PseudonymousKid

    Dear Papa,

    While nothing can be a perfect substitute for live, effective cross examination by a trench lawyer, the compromise will work to make Title IX adjudications better, I suppose. Even better would be a couple or few rounds of submitted questions to give the accused an opportunity to unpack some of the “victim’s” previous answers like would happen on cross as you described.

    Don’t get me wrong, I’m in the burn Title IX adjudication by colleges with fire camp, but even incremental change will help turn them from complete kangaroo “courts” to something slightly fairer. It might just mean that colleges and the gub’ment get away with this shit for longer, but any sort of confrontation might help one student beat an accusation, and that’s better than none.

    Can you imagine having to sit while an accuser responds to pre-ordained questions without being able to follow up? The horror. I should be selling decorative sticks for lawyers to bite down while they are subjected to such torture.


    1. SHG Post author

      You (inadvertantly) raise a good question: is incremental change good or a palliative? Is it good enough to have a live public defender stand next to an indigent defendant when the PD doesn’t know his client’s name, the facts of his case, the defense, but will overcome a challenge on appeal because they had the capacity to breathe? It creates the appearance of “good enough,” and puts off reform because of that appearance, but leaves the poor indigent defendant without effective assistance of counsel.

      So is the appearance of cross without any effective cross sufficient incremental change to turn this mutt of a system around, or does it just create an appearance that is sufficient to overcome challenge while serving no substantive purpose?

      1. PseudonymousKid

        Incremental change is fine if the change helps even one accused student that would have otherwise been railroaded. It does not have to be enough to change the entire system to be useful. Perfect is the enemy of good.

        Not that anyone should settle for whatever colleges want to spoon-feed to the masses. It’s all a fucking waste of time that shouldn’t be happening at all. But colleges are expelling students and ruining their lives, so bring on whatever change that gives the accused more of a chance.

            1. PseudonymousKid

              It was a mistake. Though, I don’t care as much at this point.

              Less terrible for even one individual is better. You’ve taught me as much. Or do you really want to accelerate this fiasco in the hopes you can make something better from the crashing and burning? I don’t know the answer, but I’m feeling for today’s students enough to give them any palliative until a cure can be had.

            2. SHG Post author

              If the option was submitted questions or nothing, I would acquiesce to palliative. But it’s not, and Doe v. Baum makes that a matter of constitutional law, so I don’t have to accept “better than nothing” as the alternative to perfect.

            3. PseudonymousKid

              No, you don’t, thankfully. Acceleration, it is, then. Let’s hope something good can come from all of this. I’m done being fatalistic.

  2. B. McLeod

    Humorously, the good professors are not convinced that “the overall mandate of Title IX” includes a requirement for cross-examination in all Title IX proceedings. I thought the concern was for due process, but apparently, it’s only for “the overall mandate of Title IX.” B. McLeod is not convinced that “the overall mandate of Title IX” authorizes these kangaroo courts at all.

    The Harvard “submitted questions” folderol appears roughly on par with “deposition on written questions,” a theoretical civil discovery tool so useless in practice that it goes virtually unused. It is not interactive, and it is not cross (which their own comment recognizes by positing that this procedure should be imposed instead of allowing cross).

    1. Bryan Burroughs

      If we’re gonna go with the “overall mandate of Title IX,” we’d have to notice that it was written to control how schools interact with students, not how students interact with students…

  3. szr in helmet

    The “submitted questions” model for cross examination looks like the bastard child of Requests for Admissions and Interrogatories. Such questions might provide useful discovery if answered prior to a hearing, but as substitute for cross-examination? No way.

    1. SHG Post author

      As every lawyer knows, depositions beat the hell over interrogatories, which even suck as a discovery device, no less a means of trial confrontation.

  4. Terence Roberts (Retired Law Prof.)

    Yes, the interaction of cross-examination in the hands of an experienced trial attorney is a thing to behold, but who in academia (especially including Law school academia ( which is perhaps a oxymoron)) is competent? My colleagues at two law schols teaching either Evidence or Trial Ad didn’t have a clue. The Harvard approach saves the institution at the expense of true fact finding. Anything less than a seriatim line of questioning is not true due process. I tried to convince our Dean to allow an adversarial ptocess for student discipline and he looked at me and said “what do you want to do, find the truth or protect the school..” I almost quit on the spot, but he made me the accused representative, so I spent several years gladly throwing monkey wrenches.
    Let’s not kid ourselves, cross is esential

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