Cross-Examination in Campus Disciplinary Hearings

Feb. 25, 2021 By Andrew Miltenberg

The Sixth Amendment of the U.S. Constitution grants certain rights to all defendants in criminal cases, including the right to a timely public trial, an impartial jury, legal representation, and knowledge of the accuser’s identity. When students are accused of campus sexual misconduct, they often assume the same standards apply to university disciplinary proceedings. Until recently, however, the rights of the accused were often overlooked, and students found little opportunity to challenge the stories told by their accusers.

Renewed focus on due process

There’s no denying campus sexual misconduct proceedings are grueling. Andrew T. Miltenberg, an expert student-rights attorney, has represented students in nearly 500 cases; each had a profound effect on participants. “These proceedings last months, or even years,” he explains. “It takes a toll emotionally.”

Colleges have long sought to make the process less difficult for victims, which may have the effect of giving less priority to the rights of the accused. For example, a 2011 letter from the Obama-era Department of Education directed universities to prevent cross-examination during hearings. While doing so protects victims from potentially painful confrontations, it also denies the accused the right to question evidence and uncover critical details that could prove their innocence.

New guidelines established in May 2020 sought to correct this denial, giving all parties the right to cross-examine witnesses with help from an attorney. While many aspects of Title IX enforcement remain inequitable, Miltenberg sees this as a crucial step forward. “To be able to question a witness allows you to challenge or clarify their narrative in ways that cannot otherwise be duplicated,” he observes.

Why questioning brings clarity

When the average person imagines cross-examination, they might picture an aggressive lawyer brow-beating a witness. According to Miltenberg, this isn’t realistic. “In many cases, that’s not good representation,” he says. “Instead, cross-examination must be used to refine and exclude certain facts and ideas or to close certain possibilities.”

The situations that lead to sexual misconduct hearings are often fraught with emotion. Further complicating matters, alcohol and other substances may affect the recollection of events by both parties. Miltenberg notes that cross-examination can often reveal what appears to be a straightforward statement of fact as an ambiguous remembrance colored by hurt, embarrassment, or intoxication.

What’s more, statements are often given by individuals with no direct knowledge of the accusation. Based on gossip, this testimony would be accepted as undisputed fact without careful cross-examination due to a low standard of evidence. When combined with a victim-centric approach to investigation that can privilege the accuser, it’s even clearer why any student accused of sexual misconduct must have the opportunity to question the evidence.

“Cross-examination may sound offensive, but when you ask questions a panel or investigator wouldn’t ask, you learn things that change the nature of the interaction,” Miltenberg remarks.

A more just approach

In a fair system, colleges would devote equal energy to supporting victims and protecting the rights of the accused. However, Miltenberg sees a general resistance to doing so that appears largely motivated by the polarization surrounding this issue. There is a general misconception that ensuring the rights of the accused means dismissing the needs of survivors, but this need not be true. He argues instead that our faith in the criminal justice system is in part ensured by these protections, including the right to cross-examination.

“The justice system in the U.S. isn’t perfect, but there are fail-safes in place to test narratives and evidence,” he explains. “That gives us confidence that in most cases we arrive at the truth. Those same fail-safes don’t necessarily exist in these cases, and that’s why the current rule about cross-examination helps level the playing field.”

If you or a loved one has been accused of campus sexual misconduct, seek help immediately. Contact Andrew T. Miltenberg today to learn more about the rights of the accused and how you can get the experienced representation you deserve.