How Do I Determine Witnesses for a Title IX Investigation?

Apr. 15, 2020 By Andrew Miltenberg

How Do I Determine Witnesses for a Title IX Investigation?

If you or your child has been accused of sexual misconduct in a college disciplinary proceeding, you need to act quickly to defend your name and record.  Doing so can be a complex process. The school’s procedures for a sexual misconduct complaint typically include an initial investigation by a college official, usually a Title IX officer or investigator, who may have the interests of the student who made the complaint top-of-mind. You will need to provide witnesses who will cooperate with the investigator and testify in any hearing that results from the investigator’s findings.

Witnesses are any persons who have knowledge of facts or circumstances concerning the sexual misconduct claim. They can be persons who were present at or near the time of the alleged events; persons who observed the condition of either the accuser, the accused, or both; or persons to whom the complainant may have made statements or communicated with in close proximity to the events.  Anyone with knowledge of facts or circumstances or who can provide evidence that make a finding of innocence or liability more or less probable is potentially a witness. These are called fact witnesses.

Character witnesses are another kind of witness you may be allowed to include. The best character witnesses are people of the same sex as the accuser who can testify that you treated them and others of the same sex at all times with respect and in a manner completely inconsistent with the allegations of the complaint. These witnesses attest to your character.

Identifying Witnesses

Think about who was present at any event from which the alleged conduct may have followed, for example: a party or fraternity event. Did anyone see, speak, or deal with you or the accuser during the time surrounding the event? This includes phone calls, text messages, emails, videos, or social media.  

Try to talk with these people or have the investigator do so on your behalf. 

Some questions to ask and things to consider when identifying witnesses:

  • Are their memories consistent with your version of the facts or can they refute a claim of the accuser? 
  • Are such witnesses willing to speak to the investigator or testify about what they saw and heard?  
  • Also try to find out if any witnesses will testify against you (the school should reveal these persons to you prior to the hearing) and consider how you can respond to or impeach their testimony such as, for example, if they were drinking alcohol or not present at critical times.

As a general rule, it is best to have fact witnesses with first-hand knowledge that is contrary to the accuser’s allegations. Witnesses with only second-hand or “hearsay” knowledge are less reliable and may be rejected by the investigator, although in most Title IX processes, hearsay is allowed for consideration.

For character witnesses, you want to approach persons who have known you the longest and will attest to your character.

The Need for Expert Help in Preparing Witnesses

 A Title IX attorney is an expert at identifying a witness to meet with an investigator and testify at a hearing, including any cross-examination. A Title IX attorney can also flush out factors that may make the witness less compelling such as whether the witness was drinking at the time in issue or has a history of misconduct on campus. In such a situation, the attorney can help you decide whether that witness’ testimony can be better provided by someone else or how to defuse the negatives in questioning this witness at the hearing.  

These trial-preparation skills are a critical part of how a Title IX defense lawyer can help you present your best case to avoid a finding of responsibility for a policy violation as well as protecting the record for a Title IX legal action if the school’s findings or sanctions are negative.

Our attorneys are Title IX defense specialists and we have helped hundreds of accused students across the country who have been treated unfairly by their schools. Call us at 212-736-4500 or contact us as soon as a complaint is filed and we will be there aggressively protecting your rights, ensuring a fundamentally fair process, or establishing the deficiencies that will lead a court to reverse the school’s adverse findings. There is no fee for a private consultation.

Please be aware that since every school’s procedures are different and every individual situation is unique, this blog does not constitute legal advice.