Tuesday, March 10, 2026
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Court of Appeal:
Expelled Student Wasn’t Denied Due Process Based on Lack of Cross-Examination
Opinion Notes That Confrontation of Accusers Took Place at Preliminary Hearing
By a MetNews Staff Writer
A student who was expelled from the University of California at Berkeley based on a finding that he sexually assaulted two women—denominated “Row 1” and “Roe 3”—was not denied due process by virtue of being denied the opportunity to cross examine his accusers where his attorney questioned them at an earlier, Div. Two of the First District Court of Appeal has held.
Neither Roe 1 nor Roe 3 testified at the disciplinary hearing. Not did Roe 2, but a university hearing officer did find allegations by her to be substantiated.
The opinion, filed Friday, was authored by Justice James Richman, It affirms an order by Alameda Superior Court Judge Michael Markman denying writ relief to the appellant, “John Doe.”
In a plea bargain, Doe pled no contest to misdemeanor assault and battery against Roe 1 and there was a one-year “deferred entry of judgment” in connection with misdemeanor battery of Roe 3.
The California Supreme Court in its 2023 decision in Boermeester v. Carry held that a private university need not provide an accused student with a hearing that includes live testimony. Markman agreed with Doe that the case does not apply to a public university, but nonetheless found it instructive and determined that the disciplinary hearing did not contravene due process. Doe argued in appeal:
“[T]here was no opportunity for John Doe’s advisor to cross-examine the accusers at the University’s disciplinary hearing. John Doe’s lawyer, who was his advisor in the University proceedings, cross-examined Jane [R]oe 1 and Jane [R]oe 3 during a preliminary hearing in a related criminal case two years earlier, but this does not substitute for cross-examination within the context of the University disciplinary proceeding.
“Furthermore, the University Hearing Officer’s reliance solely on the transcripts of the accusers’ testimonies from the preliminary hearing, without personally observing their testimony, hindered the Hearing Officer’s ability to independently evaluate credibility, the key factor in each case. This court must decide whether a University Hearing Officer’s reliance on a written transcript of witness testimony adequately safeguards a student’s due process rights, or if it falls short of ensuring a fair and impartial assessment of the evidence.”
Richman rejected Doe’s contention. He wrote:
“But if the procedure envisioned by Doe—the hearing officer asking questions that are ‘not harassing, repetitive, irrelevant, or unduly time consuming’—would be due process, a fortiori was the rigorous cross- examination the Roes endured at the preliminary hearing, where the Roes were grilled for several hours, in a criminal proceeding, under oath, by an experienced attorney whose stated objective was to demonstrate the Roes’ lack of credibility.”
He went on to say:
“…Doe’s brief asserts that his attorney ‘was not fully cross-examining’ the Roes at the preliminary hearing. Doe does not explain how this assertion supports his position. But beyond that, the fact is that Doe’s attorney had an incentive at the preliminary examination—shielding Doe from serious felony charges—that far exceeded any incentive in the University proceeding. Put slightly differently, expulsion from the University is one thing, years in prison is quite another.”
The case is Doe v. Regents of the University of California, 2026 S.O.S. 625.
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