Andrew Fleischman sent me some screen caps of the Department of Education’s commentary addressing the comments to the proposed Title IX regs. This was the stuff buried in the 2033 pages of squiggly lines where the DoE tried to address the great many issues and objections, or perhaps to create the appearance of having taken them into account knowing that most were submitted to stymie change.
The questions Andrew raised about the regs weren’t hard to answer, per se, as they related to rather common evidentiary practices in law, regularly raised and addressed. But it was the content of the discussion of the comments, the explanatory notes if you will, that presented an issue. It’s unclear how many fingers were involved in the creation of this prolix document, or who reviewed it for substance and what they knew.
But it was clear, given its length and scope, that the DoE was trying very hard, too hard, to cover its bases knowing that the regs would be challenged by those who wanted to shut down its changes and return to the sex police inquisition unilaterally imposed by the prior administration’s bureaucrats. They, Russlyn Ali and Catherine Lhamon, didn’t have to go through this mess as they just imposed their will without regard to law.
The more you try, the more you write, the more you’re likely to say something conflicting and confusing. And they did.
If a party tells the Title IX investigator, a roomie, a friend, a parent, that he did it, this discussion would seem to make the admission inadmissible if the party chooses not to testify. The plea allocution from a criminal prosecution raises somewhat tangential issues, since the plea may not reflect what happened but a plea of convenience, taken not because of guilt but coercion or cost/benefit analysis.
But what if the guy admits he physically forced a woman to engage in sex? What if a woman admits that she enthusiastically consented? What if either chooses not to be subject to testify at the live hearing, not to be subject to cross-examination, and thus to have their testimony precluded, but also their hearsay statements to others cleansed from the record as well?
At first blush, this seems like a terrible rule as the admission of statements against penal or pecuniary interest are a long-standing exception to the hearsay rule. If the guy confessed to the Title IX investigator, then the
cop Title IX investigator could testify as to the confession even though it was an out-of-court statement, not under oath, introduced to prove the truth of its substance. If you can do that in real court, why not in down under?
There are a couple of issues at stake here. The first is that the testimony could be false, the Title IX investigator construing a statement in the worst possible light, turning an innocuous statement into a confession because of their finely attuned ears that hear words and meaning that lesser-trained mortals can’t. But that’s always an issue, and cops similarly possess magic skills when testifying as to the words spoken by a defendant. Yet, the cop is allowed to do so.
Perhaps the countervailing argument is that if the accuser testifies and the accused does not, she will provide all the evidence necessary to make her case. In the absence of any contrary defense testimony, whether from the accused or any proxy on his behalf, which is similarly precluded because he refused to testify and subject himself to cross, she prevails.
Except that’s not necessarily how it works, even if it might seem as if it should. The accuser still needs to provide sufficient credible testimony to meet the standard, and her conception of what constituted a sexual assault and rape may stray sufficiently from what any reasonable person finds to be an offense as to fall short.
But then, if that’s the case, that the accuser’s testimony isn’t credible, that her claim doesn’t establish an offense, should the accusation not fail?
Whether this discussion makes sense is one thing, and the notion that a person’s statement, contrary to their position at the hearing, couldn’t be introduced against them runs contrary to the rules of evidence applicable in pretty much every legal proceeding. Even worse, this is an administrative hearing, and the rules of evidence are relaxed. Hearsay is generally admitted. Improper questions will be allowed. So why not admissions against interest introduced through the testimony of a third party?
The regs will ultimately be interpreted as written, though subject to the commentary expressed by the DoE in justifying them and explaining how they arrived at the regs.
If a party or witness does not submit to cross-examination at the live hearing, the
decision-maker(s) must not rely on any statement of that party or witness in reaching a
determination regarding responsibility; provided, however, that the decision-maker(s) cannot
draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other
Will the courts interpreting this hold it to preclude the introduction of admissions against interest made to third-parties? Seems unlikely to the point of ridiculous, since that’s not the law of evidence otherwise, and that an admission against interest does not constitute a party statement. But did the commentary provided by the DoE suggest that an accuser or accused can avoid the consideration of their admission against interest by refusing to be subject to cross? You bet it did.
Due to the extreme controversy of the regs, and the administration writing them, the DoE tried too hard to explain itself, wrote far too much and addressed too many concerns that have been raised and addressed too many times before. There will be messes like this raised, and the DoE brought them on itself. While it will eventually be addressed by a court, there will be argument and confusion until then, all because the DoE tried too hard.