November 16, 2018

COME NOW THE OPPONENTS OF DUE PROCESS:

Betsy DeVos Strikes a Blow for the Constitution (DAVID FRENCH, November 16, 2018, National Review)

First and perhaps most important, the rules will not only require colleges to permit cross-examination of witnesses (including the accuser), but will also prohibit universities from relying on the statements of any witness who refuses to submit to cross-examination.

Cross-examination is so fundamental to adversary proceedings that it's is simply incredible that some universities have been prosecuting and expelling students without permitting the accused's representative to question his accuser. Prohibiting cross-examination irrevocably stacks the deck against the accused. The Supreme Court has rightly called cross-examination "the greatest legal engine ever invented for discovery of the truth."

But you don't have to trust SCOTUS; the importance of cross-examination is among the most ancient of legal principles. Consider Proverbs 18:17: "In a lawsuit the first to speak seems right, until someone comes forward to cross-examine."

Interestingly, however, the proposed rules prohibit the accused himself from cross-examining the accuser -- instead requiring that questioning come from an "advisor." While some complain this limits the rights of the accused, as a practical matter advisers (attorneys, for example) are far better equipped to cross-examine witnesses than are undergraduates or young graduate students.

In addition to mandating cross-examination, the proposed rules grant both parties "equal opportunity to inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint."

Posted by at November 16, 2018 5:51 PM

  

« LOYALTY TEST: | Main | THE EXISTENTIAL THREAT IS INTERNAL: »