Accused students must have the right to cross-examine adverse witnesses “in the most serious of cases.” … If a case “resolve[s] itself into a problem of credibility, cross-examination of witnesses might … be[] essential to a fair hearing.”

[T]he circumstances of the present case pose [this sort of] credibility contest …: John Doe maintains that their sex was consensual; Jane Roe claims that it was not. Importantly, the Committee’s finding of responsibility necessarily credits Roe’s version of events and her credibility. The Title IX Office proffered no other evidence “to sustain the University’s findings and sanctions” apart from Roe’s hearsay statements. Cf. Plummer v. Univ. of Houston (5th Cir. 2017) (cross-examination not required where the plaintiffs distributed videos and a photograph of the victim’s “degrading and humiliating” assault online, and “[t]he University’s case did not rely on testimonial evidence” from the victim).

Defendants insist that Roe’s nonappearance did not impact the fairness of the proceedings because Doe still had an opportunity be heard. The ARC panel invited him to “summarize what happened” in his own words, and Doe took advantage of that opportunity. He disputed Roe’s overall interpretation of events and a number of her specific claims. Because plaintiff was able to draw attention to alleged inconsistencies in Roe’s statements, defendants argue that cross- examination would have been futile. We disagree.

UC assumes cross-examination is of benefit only to Doe. In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused. “A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not.” “The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause.”

Few procedures safeguard accuracy better than adversarial questioning. In the case of competing narratives, “cross-examination has always been considered a most effective way to ascertain truth.” … Cross-examination takes aim at credibility like no other procedural device. A cross-examiner may “delve into the witness’ story to test the witness’ perceptions and memory.” He may “expose testimonial infirmities such as forgetfulness, confusion, or evasion … thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” He may “reveal[] possible biases, prejudices, or ulterior motives” that color the witness’s testimony.

His strategy may also backfire, provoking the kind of confident response that makes the witness appear more believable to the fact finder than he intended. Whatever the outcome, “the greatest legal engine ever invented for the discovery of truth” will do what it is meant to: “permit[] the [fact finder] that is to decide the [litigant]’s fate to observe the demeanor of the witness in making his statement, thus aiding the [fact finder] in assessing his credibility.”

Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.