During cross-examination, each Party’s Advisor is able to ask the other Party and any Witnesses all relevant questions and follow-up questions, including those challenging credibility. The cross-examination must be conducted directly, orally, and in real time by the Party’s Advisor and never by a Party personally. If a Party does not have an Advisor present at the live hearing, the University will provide one to conduct cross-examination on behalf of that Party.
The Decision-makers can consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.
The Decision-maker can consider statements made by the parties and witnesses during the investigation, emails or text exchanges between the parties leading up to the alleged sexual harassment, and statements about the alleged sexual harassment that satisfy the regulation’s relevance rules, regardless of whether the parties or witnesses submit to cross-examination at the live hearing. The Decision-maker can also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if those documents contain statements of a party or witness who is not cross-examined at the live hearing.
Only relevant questions may be asked of a Party or Witness. The Hearing Officer will be the arbiter of relevance. During the hearing, the Advisor will ask each question aloud, and pause. Prior to the Complainant, Respondent, or Witness answering a question, the Hearing Officer will make an oral determination of relevance as follows:
- If the question is relevant, the Hearing Officer will state “yes” and the Complainant, Respondent, or Witness should proceed to respond.
- If the question is not relevant, the Hearing Officer will state “not relevant.” The Hearing Officer will explain to the Advisor the decision to exclude the question. The Complainant, Respondent, or Witness should not respond to the question. The Advisor will then be directed to proceed with the next question.
There are no “objections” to relevance determinations or to any portion of a hearing; Advisors are not permitted to challenge a determination of the Hearing Officer. The Hearing Officer may initiate engagement with the Advisor asking the question with a request to explain relevance. The Hearing Officer may also pause to confer with counsel or consider relevance as necessary.
126.96.36.199 Categories Not Relevant for Cross-Examination
Rape Shield: Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
Privileged Information: Questions seeking information protected by a legally recognized privilege, or a Party’s medical, psychological, and similar records are not relevant, unless the Party has given voluntary, written consent.