Can You Bring in an Expert in a Title IX Case?
| | Title IX, Title IX: Procedure
Whether you are the complainant initiating a Title IX proceeding or the respondent accused of violating someone’s Title IX rights, the entire process can be frightening and stressful because it can impact the rest of your life. The actions you take—or fail to take—during the investigation, adjudication, and appeal phase of proceedings can affect your future education and career opportunities for years to come.
So, even if campus advisors tell you to relax or not to worry, you should seek advice and guidance from an experienced legal counselor who will work to ensure your Title IX rights are protected. Depending on the situation, your Title IX attorney might recommend several strategies for your protection. Would that include the use of expert witnesses? After all, Title IX disciplinary proceedings on campus are handled very differently from cases in criminal and civil court. Let’s take a look at how experts could be used in a Title IX case.
What is an Expert Witness?
We tend to think of witnesses as people who have seen something and who are brought in to testify about what they’ve seen or heard. An expert witness is very different. They are brought into cases not because they have specific knowledge about what happened in that particular case but because they have detailed knowledge about a particular field, such as psychology, forensic science, medicine, or types of technology. Expert witnesses offer analysis and opinions based on their knowledge to help decision-makers understand complex issues involved in a case.
When someone wants to bring in an expert witness to testify in a court case, they need permission from the judge. They also need to introduce information to show how and why the expert is qualified to offer an opinion that can help the fact-finder understand the evidence or key issues in the case.
Use of Witnesses May Be Limited in Campus Proceedings
Court cases proceed according to rules of evidence and other rules established at the federal, state, and local level. The rules contain certain requirements. For instance, those accused of crimes enjoy a number of protections to ensure that they receive due process. If their due process rights are denied in the course of a legal proceeding, the outcome can be overturned.
However, Title IX complaints are initially investigated and adjudicated under rules different from those applied in legal courts. On college and university campuses, the proceedings are managed according to procedures established by the individual educational institution. The school’s procedures are supposed to comply with regulatory requirements and administrative guidance regarding Title IX policy. However, they are not required to provide the same due process and other protections as courts.
This means that in a proceeding held on campus to determine whether or not someone accused of a Title IX violation is “responsible,” which is the equivalent of a finding of guilt in a criminal trial, neither the person who filed the complaint nor the person who is defending against the accusations may necessarily have the ability to introduce the same evidence as they would in a court case. Schools try to keep campus proceedings simplified. So, in many cases, it is up to the school to determine whether a particular expert would be allowed to testify when they do not have direct knowledge of the events at issue or the character of the individuals involved.
When a Title IX proceeding involves allegations of sexual misconduct such as sexual assault, then schools holding a live hearing under the 2020 rules must allow the use of expert witnesses. However, schools in jurisdictions where the 2024 rules were permitted to take effect may elect not to hold live hearings, and expert witnesses may not be permitted.
Regardless of the jurisdiction, if the outcome or handling of the case is challenged in federal court, the scope of evidence permitted may be much broader.
Expert Witnesses are Becoming Common in Title IX Cases That Go to Court
In recent years, attorneys for both plaintiffs and defendants have increasingly relied on expert witnesses in Title IX cases. These experts often have knowledge and insight to share regarding a wide array of subjects. Some examples include:
- A forensic psychologist who testifies about the formation of memories in stressful situations and how trauma impacts recollection of events, showing that inconsistencies in statements could be the result of trauma rather than dishonesty
- A medical expert who testifies about what medical imaging indicates
- An attorney who is an expert on Title IX who testifies on the range of responses of colleges to Title IX allegations to help assess whether a school’s response to a particular complaint met the standard to be considered inadequate under the law
- A psychologist who testifies about the impact of leading questions posed to witnesses during investigations
- A scientist who testifies about DNA evidence
An experienced Title IX attorney can analyze school rules and the facts of the case to determine whether an expert witness would be permitted during on-campus proceedings or how one or more experts could prove beneficial in court proceedings.
We Understand How to Apply the Complexities of Title IX to the Unique Facts of Your Case
Testimony from expert witnesses has proven to be the deciding factor in many Title IX cases, but in many other cases on and off campus, experts are not able to add to the evidence or call evidence and assumptions into doubt, so their inclusion would complicate a case to no useful purpose.
Would you benefit from bringing in experts in your case? And if so, who do you call on? The best way to pursue either a Title IX complaint or a Title IX defense is to start working right away with a legal team that understands the issues inside and out and is prepared to implement effective strategies to protect you at each step in the process.
At Nesenoff & Miltenberg, we help students, faculty, and staff all throughout the country protect their rights and their futures when a potential Title IX violation is at stake. For a confidential consultation to discuss how we can assist in your case, call us at 212-736-4500 or contact us online today.