CUNY POLICY ON SEXUAL MISCONDUCT�

CUNY APPOINTED CROSS-EXAMINATION ADVISORS TRAINING

WELCOME TO THE�CUNY APPOINTED CROSS EXAMINATION ADVISORS TRAINING�NOVEMBER 17, 2020�10:00 A.M. – 12:00 P.M.

PRESENTED BY:

RODNEY PEPE-SOUVENIR, UNIVERSITY TITLE IX DIRECTOR, OFFICE OF RISK, AUDIT, AND COMPLIANCE

NICOLE DONATICH, ASSOCIATE GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL

LUCRECE FRANCOIS, ASSOCIATE GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL

GOALS OF THIS TRAINING

• I. WHO ARE THE ADVISORS?
• II. UNDERSTANDING THE ROLE OF THE ADVISOR
• III. WHAT DOES THE PROCESS LOOK LIKE?
• IV. WHAT IS CROSS EXAMINATION?
• V. HOW TO PREPARE FOR YOUR ROLE AS CROSS EXAMINER
• VI. HOW DOES ONE CROSS EXAMINE?
• VII. OBJECTIONS
• VIII. RULES OF DECORUM
• IX. REMOTE HEARING GUIDELINES
• X. AGREEMENTS

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RECAP FROM �GENERAL SESSION TRAINING

CUNY’S POLICY ON SEXUAL MISCONDUCT WAS REVISED THIS SUMMER FOLLOWING NEW TITLE IX REGULATIONS ISSUED BY THE UNITED STATES DEPARTMENT OF EDUCATION 

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SUMMARY OF MAJOR CHANGES

• Definition of Title IX Sexual Harassment 
• Two sets of procedures: 
• Title IX Sexual Harassment 
• Non-Title IX Sexual Misconduct 
• Title IX Grievance Process 

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THE USDOE DEFINES �TITLE IX SEXUAL HARASSMENT AS …  

Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States and that satisfies one or more of the following: (1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; (2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to CUNY’s education program or activity; or (3) Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined in this Policy. 

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THE POLICY NOW HAS TWO SETS OF PROCEDURES: 

• Title IX Sexual Harassment matters 
• Allegations that meet the definition of Title IX Sexual Harassment must follow the Title IX Grievance Process 
• CUNY-Appointed Cross Examination Advisors
• Non-Title IX Sexual Misconduct matters 
• Prohibited Sexual Misconduct that does not meet the USDOE definition of Sexual Harassment

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I. WHO ARE THE ADVISORS?�

• “At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.”
• “If a party does not have an advisor present at the live hearing, the recipient must provide without fee or charge to that party, an advisor of the [institution’s] choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.”

§106.45(b)(6)(i)

I. WHO ARE THE ADVISORS?

• Under the new Title IX Rules, the participants may not cross examine each other directly
• The Rules require that Advisors conduct cross examination
• Unlike the Non-Title IX Sexual Misconduct procedures, in Title IX matters, in the event that a party does not have an advisor at the hearing, one must be provided by the college.

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• This is where you come in!

§106.45(b)(6)(i)

I. WHO ARE THE ADVISORS?

• How are they chosen?
• When are they assigned?

II. UNDERSTANDING THE ROLE OF THE ADVISOR

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What the Advisor is

• The Advisor serves as a cross-examiner
• The sole purpose of the Advisor is to ask questions of the opposing party’s testifying witnesses

What the Advisor is NOT

• The Advisor is NOT legal counsel
• The Advisor is NOT an advocate

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II. UNDERSTANDING THE ROLE OF THE ADVISOR

CUNY-Appointed Cross Examination Advisor

• Hearing only
• Conducts cross examination only
• Appointed in the absence of a traditional advisor of choice

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Traditional Advisors of Choice

• Assist and advise throughout investigation, adjudication and resolution process
• Conducts cross examination
• May also conduct opening and closing arguments, conduct direct examination and make objections and other arguments at hearing

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CUNY Appointed Cross Examination Advisors vs. Traditional Advisors of Choice

III. WHAT DOES THE PROCESS LOOK LIKE?

Advisor will be notified of appointment and, within five days of the hearing, the college will provide the advisor:

• The time, date, and place of the hearing
• The investigative report and exhibits
• The parties’ written responses to the investigative report
• A list of documents and evidence that the college intends to use at the hearing
• A copy of the Rules of Decorum
• A copy of the Instructions and Guideline for Remote Hearings (if the hearing is remote)
• Agreement on the Use of Investigation and Hearing Materials

Appointment

III. WHAT DOES THE PROCESS LOOK LIKE?

Upon notice of assignment, the Advisor should:

• Contact the party to whom they have been appointed
• Review the materials received from the college
• Determine preferred means of communication with party during the hearing
• Discuss what questions the party may like to have asked during cross-examination
• Review and sign Agreement on Use of Investigative and Hearing Materials
• Adhere to the Remote Hearing Guidelines

Preparing for the hearing

III. WHAT DOES THE PROCESS LOOK LIKE?

• Relevance is the foundation of the hearing process 
• Parties have the right “to have irrelevant evidence excluded from any hearing” 
• “Having to do with the matter at hand” (Merriam Webster) 
• "Logically connected and tending to prove or disprove a matter in issue.” (Black’s Law Dictionary) 

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What is Relevance?

III. WHAT DOES THE PROCESS LOOK LIKE?

• Title IX Matters
• Parties have the right to “...an evaluation of all relevant evidence, including both inculpatory and exculpatory evidence...”  
• Includes both fact and expert witnesses 

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What is Relevance?

III. WHAT DOES THE PROCESS LOOK LIKE?

• Duplicative questions 
• Duplicative vs. Corroborative  
• Questions and evidence about sexual history/predisposition  
• Unless an exception applies 
• Specific to Title IX
• Medical records, unless written consent 
• Information protected by a legally recognized privilege 
• Party/witness statements that have not been subjected to cross examination

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What is not relevant?

SEXUAL HISTORY EXCEPTIONS��WHEN SEXUAL HISTORY IS RELEVANT

• Title IX Regulations prohibit:
• Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior
• This evidence is not relevant UNLESS:
• Offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
• Example – To prove that an injury was caused by another sexual partner, rather than the respondent
• Concerning specific incidents of prior sexual behavior with the respondent and are offered to prove consent.
• Example – The parties’ past pattern/practice of sexual activity to prove affirmative consent in the specific incident in question

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III. WHAT DOES THE PROCESS LOOK LIKE?

Sexual Assault – Contact case. Complainant alleges that the respondent groped their genitals while dancing at a CUNY event. 

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Relevance - Hypo 1

III. WHAT DOES THE PROCESS LOOK LIKE?

• Are the text messages relevant?
• Ask yourself: Does this make the allegations under investigation more or less likely to be true? 
• What is the Respondent’s perspective? 
• What is the Complainant’s perspective? 
• Admissible?

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Relevance - Hypo 1

III. WHAT DOES THE PROCESS LOOK LIKE?

Sexual Assault – Penetration case.

Complainant and Respondent are known to each other.

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Relevance - Hypo 2

III. WHAT DOES THE PROCESS LOOK LIKE?

• Are the text messages relevant?
• What is the red flag in this hypo?  
• Ask yourself – does this meet any of the very limited exceptions enumerated in the Policy?  
• Title IX – Admissible?  

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Relevance - Hypo 2

III. WHAT DOES THE PROCESS LOOK LIKE?� HEARSAY

• Hearsay 
• An “out of court” statement, offered to prove the truth of the matter asserted 
• Testimony or documents, quoting someone who is not present 
• Title IX Sexual Harassment Hearings –  
• “If a party or witness does not submit to cross-examination at the live hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility...” 

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IV. WHAT IS CROSS EXAMINATION?

Cross examination is…

• The process by which one party asks questions of the opposing party’s witnesses
• A way to test witness credibility 
• A method of questioning where the question suggests the answer 

Cross Examination is NOT... 

• A made for TV moment 
• A time to be argumentative and aggressive 
• An opportunity to embarrass or berate a witness 
• An opportunity for the person asking the questions to testify 

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V. HOW TO PREPARE FOR YOUR ROLE AS CROSS-EXAMINER

• Review the CUNY Policy on Sexual Misconduct
• Section XI – Title IX Sexual Harassment Matters
• E. Formal Resolution and Investigation
• Review the Rules of Decorum
• Review Training
• Review Investigative Report and Evidence
• Communicate with the party you are appointed to work with
• Review your role and scope of responsibility
• Discuss cross examination topics and prepare questions
• Review the Instructions and Guidelines for Remote Hearings (if applicable)
• Review and sign the Agreement Regarding the Copying and Use of Hearing and Investigative Materials

VI. HOW DOES ONE CROSS-EXAMINE?

• Ask leading questions of the testifying witness
• Must be relevant
• Must be within the scope of their direct examination
• Focus on testing the witness’s credibility and the veracity of their testimony
• Draw out facts that support your party’s narrative
• Do not present evidence, or make statements
• Do not ask questions of the opposing party (only of the testifying witness)
• The Chairperson must determine the relevancy or appropriateness of your question before the witness answers
• Observe the Rules of Decorum

VII. OBJECTIONS

• Non-Relevant Sexual History
• Only relevant uses:
• Parties’ sexual history to prove consent
• Someone else did it
• Legally Privileged Information
• Treatment records of the opposing party (without consent)
• Other recognized legal privileges

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• What they can’t do, you can’t do either!

VII. OBJECTIONS

• Ambiguous question
• Argumentative question
• Question asked and answered
• Question assumes facts not in evidence
• Badgering the witness
• Compound question
• Advisor is testifying
• Misleading question
• Misquoting witness
• Misstating evidence

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• What they can’t do, you can’t do either!

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VIII. RULES OF DECORUM

• New 
• Applies to: Parties (Complainant and Respondent) & advisors 
• Applies to both remote and in person hearings
• Purpose - “to prohibit any party or party advisor from questioning witnesses in an abusive, intimidating, or disrespectful manner...” 

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• Overview

RULES OF DECORUM:

• Keep cell phones/cameras, etc. turned off and put away 
• Refer to parties using the surname and gender used by the party
• Wait to be acknowledged by Chair prior to speaking 
• Do not speak at the same time as others (with exception of voicing an objection) 
• Be respectful 

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Do’s

RULES OF DECORUM: ��

• Act abusively or disrespectfully 
• Argue, yell, scream, badger or “lean in” to a witness’s personal space 
• Use profanity 
• Record or broadcast hearing
• Make irrelevant comments about a party or witness’s character, motive or physical attributes 
• Refer to documents not already in evidence 
• Mischaracterize evidence 
• Ask argumentative questions 

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Dont’s 

RULES OF DECORUM: ��WARNING AND REMOVAL PROCESS �

• Adjudication Committee has discretion to determine violations 
• First violation - Warning/Reminder 
• Second/Further violation – Discretion to remove the offending person or allow them to continue participating in the hearing 

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IX. REMOTE HEARING GUIDELINES

PARTICIPANTS

COMMITTEE MEMBERS

RELEVANT RIGHTS AND EXPECTATIONS

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• Confidentiality
• Fair, impartial, timely opportunity to be heard
• Presentation of position without fear of abuse - physical, verbal, or otherwise - from others supporting conflicting points of view.
• Properly trained Adjudication Committee members
• Properly trained College Personnel
• Reasonable advance written notice of any required meeting
• Reasonable advance written notice of optional meetings
• The opportunity to offer evidence
• The exclusion of irrelevant evidence from any hearing
• An advisor if required or desired
• A full and fair recording of any hearing
• Equal access to college provided resources

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GENERAL GUIDELINES

• The Hearings will be conducted via a secure video-conferencing platform (VCP) determined by the College
• All participants must review the Instructions and Guidelines for Remote Hearings
• All Parties must review the Rules of Decorum
• All parties must read and sign the Agreement relevant to their matter
• FERPA applies

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RESPONSIBILITIES OF THE COLLEGE

• University Title IX Director
• Student Affairs
• Human Resources
• Presenters
• CIS
• VCP Host
• Campus Disability Services Centers

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Behind the Scenes����

RESPONSIBILITIES OF THE COMMITTEE CHAIRPERSON

• Before hearing
• All of the same responsibility as the ACM with the following additions:
• Read Chairperson script
• Ensuring a workable email for exchange of proposed Exhibits during hearings
• At hearing
• Enforce the Rules of Decorum
• Determining relevance of questions
• Determining admissibility of evidence
• Inform the parties of the hearing procedures
• Inform the parties of their rights
• Directing the Host
• Maintain the integrity of the hearing
• Ensure all parties have reviewed:
• Remote hearing guidelines

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RESPONSIBILITIES OF THE RESPONDENT, COMPLAINANT, AND MEMBERS OF THEIR PARTIES

• Privacy
• Lighting/background
• Appear on camera
• Workable computer, audio and video
• Downloading and testing the VCP application
• Registering for hearing
• Read
• Instructions and Guidelines for Remote Hearing
• Rules of Decorum

• Complainant
• Respondent

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RESPONSIBILITIES OF THE RESPONDENT, COMPLAINANT, AND MEMBERS OF THEIR PARTIES

• Read and sign
• Relevant Agreement
• On the Copying and Use of Hearing Materials: Article XV Student Disciplinary Hearing
• On the Copying and Use of Hearing and Investigative Materials: Title IX
• On the Copying and Use of Hearing and Investigative Materials: non-Title IX
• Inform the College of any needed accommodation for self and any witnesses within 48 hours of hearing notice
• Ensuring that evidence is in PDF format
• A usable email for the purpose of sending proposed exhibits to the opposing party and the Committee Chairperson
• Establishing an alternate means of communication separate from the VCP meeting

• Complainant
• Respondent

RESPONSIBILITIES OF THE RESPONDENT, COMPLAINANT, AND MEMBERS OF THEIR PARTIES

• Privacy
• Lighting/background
• Appear on camera
• Workable computer, audio and video
• Downloading and testing the VCP application
• Registering for hearing
• Read
• Instructions and Guidelines for Remote Hearing
• Rules of Decorum

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• Advisors

RESPONSIBILITIES OF THE RESPONDENT, COMPLAINANT, AND MEMBERS OF THEIR PARTIES

• Read and sign
• Relevant Agreement
• On the Copying and Use of Hearing Materials: Article XV Student Disciplinary Hearing
• On the Copying and Use of Hearing and Investigative Materials: Title IX
• On the Copying and Use of Hearing and Investigative Materials: non-Title IX
• Inform the College of any needed accommodation for self and any witnesses within 48 hours of hearing notice
• A usable email for the purpose of sending proposed exhibits to the opposing party and the Committee Chairperson
• Establishing an alternate means of communication separate from the VCP meeting

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• Advisors

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X. AGREEMENTS

RECORDKEEPING

• New Regs have recordkeeping requirements
• Seven years
• For Advisors
• Maintain a procedural timeline​�
• When you were referred the case�
• The dates and mediums in which you met with/communicated with the party�
• Hearing date�
• Anything abnormal, such as a party's refusal to work with you�
• Submit to the college upon completion of the hearing, which will maintain the information along with the other hearing materials

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COMMONLY ASKED QUESTIONS

1. "...but I'm not a lawyer​."�
2. "Won't this create inequity if the other side hires a lawyer?"�
3. "Is it appropriate for me, as a college employee, to take sides as an advisor?"�
4. "What is the extent of my advocacy for the assigned party?"

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QUESTIONS?