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.