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Cornell Journal of Law and Public Policy

Keywords

College sexual assault ajudications, Cross-examination

Abstract

With its reputation as the "greatest legal engine ever invented" cross-examination rarely receives critical evaluation. This Article seeks to narrow that academic gap and offer pragmatic advice to policymakers and judges considering the in-the-trenches issues of cross-examination. Despite a great body of empirical and interdisciplinary work on cross-examination, legal scholarship often relegates discussion of cross-examination's benefits and costs to an errant footnote or a short paragraph. But cross-examination's efficacy should not be an afterthought or aside to doctrinal exegesis. Answers to the hardest questions about the presence, scope, and format of cross-examination rely on assumptions about the benefits and costs of cross-examination much more than they do analysis of seventeenth century English opinions. This Article considers potential lessons from a setting in which systematic preferences with regard to cross-examination differ markedly from those in traditional adjudications.

The current issue of cross-examination's role in college sexual-assault adjudications is both the impetus for this project and the vehicle for reexamination. This Article explores questions about cross-examination's efficacy. Does focusing on witness demeanor during cross-examination hurt or help a hearing's accuracy? Which questioning techniques improve truth seeking and which ones only abuse witnesses and harm the system?

However, the knowledge gathered herein has much broader applicability. Shifting legal debates mere inches away from tired references to tradition and towards critical evaluation means that policymakers and judges alike have a chance at meaningful reform. Even the best engines need a tune-up. It is time to reexamine assumptions about cross-examination.

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