First Circuit’s Compromised Cross

Among the messages of the King Solomon “split the baby” parable is that his compromise would have left the real mother with half her baby. The problem with half a baby is that half a baby is a dead baby. It’s not that compromise is inherently death, but that it’s not necessarily life either. Not everything can be split down the middle and survive.

Yet, in Haidak v. UMass-Amherst, the First Circuit Court of Appeals tries its hand at compromising cross-examination. It begins, oddly enough, by questioning the merit of cross at all.

We are aware of no data proving which form of inquiry produces the more accurate result in the school disciplinary setting. Considerable anecdotal experience suggests that  cross examination in the hands of an experienced trial lawyer is an effective tool. See California v. Green, 399 U.S. 149, 158 (1970) (noting that cross-examination is “the greatest legal engine ever invented for the discovery of truth” (internal quotation marks omitted)). One must keep in mind, however, that courts generally find that an accused student has no right to legal counsel in school disciplinary proceedings.

The famous quote is sandwiched between two bizarre sentences, the first about there being “no data,” which by no means supports a position, but is nothing more than the absence of anyone having compiled data on something that doesn’t happen. Yet, we have a few hundred years of anecdotal experience, which suffices for the same process in trials, as if the process was any different before a campus sex tribunal as a courtroom.

The final sentence is the bookend, conflating precedent from campus plagiarism cases with the new campus sex tribunals. The issue is whether the fundamental paradigm shift in Title IX sex tribunals requires a concomitant shift in the procedures. Pre-shift law, by definition, fails to address the issue.

The court then raises the obvious problem.

As a general rule, we disagree, primarily because we doubt that student-conducted cross-examination would so increase the probative value of hearings and decrease the “risk of erroneous deprivation,” Mathews, 424 U.S. at 335, that it is constitutionally required in this setting. In the hands of a relative tyro, cross examination can devolve into more of a debate. And when the questioner and witness are the accused and the accuser, schools may reasonably fear that student-conducted cross-examination will lead to displays of acrimony or worse.

No doubt a college sophomore lacks the skills, and under the circumstances, likely the temperament, to conduct an effective cross-examination. No doubt it could turn ugly and acrimonious. No doubt that would prove unpleasant for colleges to manage. But none of these entirely fair concerns addresses the need for, and right of, confrontation before these sex tribunals, otherwise inclined to “believe the woman” and expel the young man.

What it does is lead directly to the obvious solution, to allow cross-examination by a lawyer, competent to question a witness. So that’s not how it was done before? True, but that was before colleges got into the rape business, at the compulsion of the “Dear Colleague Letter.” It’s not the male student’s fault that he’s now being tried for a crime before an incompetent and biased tribunal, but if that’s where he finds himself, he has to deal with it. So does the First Circuit.

Instead, the court decided to split the baby.

This is not to say that a university can fairly adjudicate a serious disciplinary charge without any mechanism for confronting the complaining witness and probing his or her account. Rather, we are simply not convinced that the person doing the confronting must be the accused student or that student’s representative. In this respect, we agree with a position taken by the Foundation for Individual Rights in Education, as amicus in support of the appellant — that due process in the university disciplinary setting requires “some opportunity for real-time cross-examination, even if only through a hearing panel.”

Much as I respect and support FIRE’s work, its proposal here does neither the appellant nor the law any favors. It reflects a position that no lawyer who has ever tried a case could support, having the sex tribunal vet the accused’s questions and ask them on his behalf. This scheme has two fatal flaws.

First, the proposed questions, assuming they’re prepared by an attorney and not the same college sophomore who lacks the knowledge and experience to formulate viable questions to be asked in person, are vetted before being asked to eliminate questions deemed irrelevant or offensive.

…when Haidak proposed a list of thirty-six questions that he wanted the Board to ask Gibney,
Cardoso struck twenty questions from the list before submitting it to the Hearing Board….

Second, questions prepared in advance may address perceived areas of inquiry, but the key to cross isn’t to just ask the initial question, but to hear the response and follow up with more directed questions. Without the ability to follow up an answer, cross is meaningless.

But the court found that, at least in Haidak’s hearing, the tribunal’s inquiry was sufficient.

As it turned out, the members of the Board nevertheless managed to avoid the pitfalls created by the university. The Board questioned Gibney at length on the matters central to the charges. It probed for detail and required her to clarify ambiguities in her responses.

This is the sort of rationalization that only an appellate court court could make with a straight face. That there were follow-up questions by the panel is better than nothing, but by what stretch of hubris does the court suppose it has any clue what would have been revealed had an effective cross been performed by competent counsel? In the absence of a meaningful cross, the court nonetheless presumes that the questioning seemed sufficient, never knowing what “sufficient” would have been had the baby not been split.

The complaint by colleges, and the compromise proffered by FIRE and adopted by the First Circuit, is that having real lawyers conduct real cross-examinations would turn the campus sex tribunals into adversarial legal proceedings.

The problem is they are, and destroy lives and fortunes in the process. It’s not the accused’s fault that colleges have chosen to embroil themselves in the sex lives of students, but having done so, they shouldn’t deprive the accused of a meaningful opportunity to defend by splitting cross-examination and giving him half a dead right.

10 thoughts on “First Circuit’s Compromised Cross

  1. Guitardave

    Apparently they don’t understand that no matter how many times Simon says “go halfway to the door” that they’ll still never get there.

  2. Chris Van Wagner

    Eight years ago, when the U of Wisc still allowed live Title 9 cross-examination (albeit in a “respectful tone” — TBD in real time by the 3-member hearing panel), I was permitted to ask the accuser to please define the term “vaginal virgin.” I asked the question in a hushed tone so as not to disturb the great and powerful Oz. That query, and a few others along similar lines, lead to a 2-1 decision NOT to hold my client accountable for the equivalent of sex with someone too drunk to give consent (in her room, in her upper bunk, at her request and with her repeated consent to each stage of intimate activity, per the evidence). Alas, under this 1st Circuit rubric, methinks the panel would have struck that question and my client would have been expelled 10 weeks before graduating with high honors and a double major. Better than nothing? Maybe. Effective cross and truth-testing? Nope. Not a solution.

    1. SHG Post author

      To add fuel to the fire, the panel is no more skilled in understanding materiality and relevance than the sophomore, or how to ask and follow-up questions than any random academic. And still worse, most schools “train” their panels in the “trauma-informed” approach, such that consistent testimony proves credibility and inconsistent testimony proves credibility, good memory proves credibility and bad memory proves credibility. But we’re not done.

      The panels further tend to hold the common campus “believe the woman” bias, which means all their decisions are filtered through their lens of prejudice toward the male students.

  3. Norahc

    “Begone, ye legal witch wit’ yer legal facts! Afore we burn ye!”

    Even the Salem Witch Trials had more due process in them than the Title IX witch hunts.

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