Witnesses can provide some of the most crucial evidence in any legal case. For whatever reason, humans absorb stories better than pure facts. According to the twentieth-century psychologist Jerome Bruner, we are 22 times more likely to remember a fact when it's attached to a story. In short, no matter how strong your evidence may be, judges and juries will be more inclined to accept it if they have a human voice to put it into context. Witnesses provide that voice.
Not everyone makes a good witness, though. The best witnesses have an account that will agree with yours. However, they must also be able to explain things in a clear and compelling way. They must be able to connect with an investigator, a judge, or a jury. They must come across as trustworthy.
When it comes to a Title IX defense, choosing witnesses can be an incredibly complex process. Sexual misconduct cases often come down to the most believable party, and witnesses are a big part of that. You never want to take on your university alone: you need a qualified Title IX attorney to help you with tasks like identifying the best witnesses. However, you can help the process yourself if you keep a few simple guidelines in mind.
The Title IX Process
The first thing you need to know is what you'll be facing if another student has accused you of sexual misconduct. Your specific situation will determine just who will make a good witness for you and who won't.
Most Title IX cases begin with an investigation. When someone makes an allegation against you, the Title IX coordinator decides whether to pursue it or not and then appoints an investigator. That investigator notifies you of what's happening and begins gathering evidence. They will likely want to interview you as well as the complainant. They'll also be looking for witnesses who can help shed light on what happened.
Once the investigation is complete, the investigator submits a full report of their findings. Once both sides have a chance to comment on the findings, the school gathers a panel to hear the case. Usually, this panel comprises faculty, staff, and students. In some instances, a single adjudicator will decide the case after a hearing. As part of the hearing, both sides have the opportunity to call witnesses.
Finally, if you should lose the case, you may very well want to file a suit in federal court to overturn the school's findings and reclaim your life. Certainly, witnesses can be valuable in court as well.
Two Types of Witnesses
There are two basic types of witnesses, and you want to consider people who can serve as either.
The first are known as fact witnesses. Fact witnesses testify about the event itself and what happened. Fact witnesses can include:
- Anyone present at the event, during the time leading up to the event, or in the time immediately after the event
- People who observed the condition either of you were in around the time the incident occurred
- People the accuser might have communicated with around the time everything took place
Generally speaking, witnesses with direct evidence – first-hand knowledge about what happened – offer the most important testimony. However, Title IX allows investigators and hearing panels to accept hearsay evidence, information about other people's statements.
The second type of witness is a character witness. The role of a character witness is to give evidence about your character, who you are as a person. Character witnesses might be anyone you know, but in general, there are two rules of thumb to consider when selecting someone to testify about you in a Title IX case:
- The gold standard is someone from the same sex as the accuser who can testify that you have always treated them and other members of that sex with respect.
- Usually, character witnesses who have known you longer are better than those who have known you only a short time since they can speak more broadly about your personality and behaviors.
Tracking Witnesses Down
Witnesses, especially fact witnesses, aren't always easy to find. Not everyone present at an event realizes they know something relevant. Others are reticent for one reason or another about talking with an investigator or testifying at a hearing. Lots of people just “don't want to get involved.”
This means you and your attorney may have to do some work to uncover people who can testify on your behalf:
- Start by making a list of anyone you can remember who was around when the incident occurred. If you were at a party, who was the host? Who do you remember seeing? If you were in the dorm, did you see anyone in the hallway? Were people in the next room at home?
- Pay particular attention to anyone who had direct contact with either you or the complainant; they are more likely to remember what occurred. Think about who you might have spoken to at the time.
- As you talk to witnesses, be sure to ask them who else they remember being present. This can lead you to additional people who might be able to testify on your behalf. In addition, don't limit yourself to people you know. Anyone with information may be essential to establishing your innocence.
- Consider who you might have communicated with just after the event. Likewise, think about who the complainant might have talked to. Communication could have been face-to-face, but it might also have taken place in a phone call, email, text message, and even social media.
- Sometimes it's the case that you simply weren't in a position to commit the crime you've been accused of. If that's true for you, consider who could serve as an alibi, explaining where you were and why you couldn't have been involved.
- Don't limit yourself to looking for witnesses you know will be on your side. First, you don't know with certainty who might be willing to help you. Second, you can't be sure—and a witness can't either—how what they have to say might be used to support your case. Finally, even if a witness has damaging testimony about you, it's essential to have that information too. If you know who might appear against you, you can begin preparing to undermine their credibility or explain away what they may have to say.
Talking With Witnesses
As you identify witnesses, you'll want to talk with them yourself or have your attorney speak with them. Again, not every witness is helpful in court. Sometimes a person simply doesn't clearly remember what happened or has the details wrong. Other potential witnesses may not come across well when they're in front of an investigator or a hearing panel.
Asking a few questions can be an excellent first step for determining just how helpful a witness might be:
- First, are the witness' memories consistent with what you remember, particularly with the facts you want to establish? It could be that the two of you differ on the details. That's OK. But if a witness doesn't remember you being somewhere when you were definitely there, their testimony probably won't be helpful.
- Next, ask if the witness willing to testify on your behalf? If the person was directly involved, they might not be able to avoid testifying. However, you should find out if they are willing to talk to your attorney, the Title IX investigator, and members of a hearing panel.
- Finally, you should find out if the witness is for or against you. Again, just become some may have negative things to say about you doesn't mean they can't necessarily be helpful to your case. Often, your attorney may know how to use their testimony to your advantage.
How an Attorney Will Help
A Title IX case is serious business, and it's not something you should try to handle by yourself. That applies to your entire case, but it certainly applies to the process of finding and preparing witnesses.
You may lay some of the important groundwork for finding witnesses, and indeed you're in the best position to know who might know something about your case. However, you'll want to make sure your attorney or their representative interviews everyone connected to the event. What will an attorney be able to do that you can't?
- A Title IX attorney can assess each witness and determine who will be helpful and who won't. The facts the witness has to report are significant, but just as significant is how the witness comes across. Is the person believable? Do they explain things clearly? Remember: testimony isn't just about the facts; it's about the story.
- In addition, an attorney can find out quickly whether a witness' story has holes in it. They also know how to ask the right questions to find out about someone's background and whether there might be anything in that background that would ultimately harm your case.
- Finally, when it comes to witnesses, a lawyer will know best how damaging testimony might be defused. They'll be able to assess how all the testimony in the case can best be shaped to demonstrate your innocence.
One additional note: you should never speak to the complainant directly. You may want to talk with them, to try and work out the situation or at least to discover what they're saying about you. This is a terrible idea. In fact, your school may very well have prohibited contact between the two of you. Even if they haven't, though, understand that no matter how well you may have thought you knew this person, they've made a potentially life-changing allegation against you. You cannot trust them. Just as important, any contact with your accuser may appear to an investigator like you're trying to influence the case's outcome.
Attorney Joseph D. Lento Knows Title IX Defense
If you've been accused of sexual misconduct, you need an attorney now, sooner rather than later. A Title IX case is serious business, and you can't handle it alone.
The very first thing you need to recognize is that your college or university is not on your side. They may say that they have your best interests in mind but don't believe it. For various reasons, your school is most likely doing everything it can to make sure you are thoroughly investigated and convicted.
And make no mistake: everything is on the line. Your school will likely say they're not able to tell you what kind of penalty you'll get if you're found responsible for the offense, but they will provide you the full range of potential sanctions to make certain they are covered - potential sanctions that will include suspension or expulsion. You can be sure, however, suspension will be the minimum option in most Title IX cases. Depending on the nature of the offense, more probably, you'll face expulsion, and expulsion usually includes a transcript notation about the nature of your offense. That means you can't simply leave your school and transfer somewhere else. A notation like that will discourage anyone else from admitting you.
The good news is, under Title IX you have the right to appoint an advisor, and that advisor can be an attorney.
Choose attorney Joseph D. Lento to represent you. Joseph Lento is a Title IX attorney with years of experience defending clients just like you. He's helped hundreds of clients across the nation prove their innocence and clear their names. Joseph Lento has studied Title IX law, and he's always up to date on the latest changes. He also knows how colleges and universities operate, what they will throw at you, and what dirty tricks they might try to use.
Attorney Joseph D> Lento can help you handle all aspects of your case, from finding and preparing witnesses, to presenting evidence at your hearing, to maintaining a record of how your rights are infringed that you can use to file a lawsuit.
If you or your student has been accused, don't wait for the school to act. Act first. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.