John Doe v. David Baum: University of Michigan Sexual Misconduct Case

This Sixth Circuit Court of Appeals case establishes a right of an accused to cross examine an accuser in a university sexual misconduct case where credibility is an issue. It is an important legal development for misconduct cases. Why is that important legally? Because credibility is an issue in basically all these cases.

Universities are more and more responsible for adjudicating claims of sexual harassment and sexual assault. This can be uncharted for a university. Universities have been pushed into these contentions areas while they had no structural process for dealing with the claims in the first place. Students must have their rights protected and this case is a step in that direction.

What Happened in the Case of John Doe v. Baum

John Doe and Jane Roe met a party held at Doe’s fraternity. They went to Doe’s room where they had sex. Two days later, Roe filed a complaint with the University’s Title IX department, claiming she was too drunk to consent to sex. As having sex with an incapacitated person would violate University policy, the University began an investigation.

During the investigation, Doe, Roe, and 23 other witnesses gave statements to an investigator. Other than meeting and having sex, Doe and Roe’s story would diverge.

Doe claimed everything was consensual – that Roe had answered “yeah” to the question of whether they would have sex. After they were done, Roe was sick and vomited.

Roe claimed she had always been too intoxicated to consent. She claimed she stumbled into the room and immediately told him they wouldn’t be having sex. She got sick, and a girl she had never met came and helped her.

The Investigator’s Finding

The investigator did not believe that a case against Doe was made by a preponderance of the evidence. Of all the witnesses, there was only one impartial witness – the girl who Roe had never met but who came to help. This witness only came in after the fact, and couldn’t answer any of the relevant questions.

Roe Appealed That Finding

Roe appealed the investigator’s decision, arguing the evidence did not support the investigator’s findings. An Appeals Board was made up of a three-member panel which reviewed the investigator’s findings. The Board reversed the investigator’s findings – after meeting for only two sessions and not reviewing any new evidence or interviewing the students. The Board found that Roe’s description of events to be “more credible” than Doe’s.

Lawsuit Filed

Doe then filed a lawsuit against the University, claiming the disciplinary proceedings violated the Due Process Clause and Title IX. Specifically, he argued he was entitled to a hearing if the University made findings based on credibility.

What the Court of Appeals Said

The Court agreed with Doe that Due Process requires a right to cross-examination.  Cross-examination is where a party questions an adverse party. Cross-examination is designed to bring out information from the witness that would not have been brought out otherwise. Without cross-examination, a party can basically say whatever they want without being tested.

The Court said “if a university is faces with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.”

Credibility Questions

This case completely hinged on the question of credibility. There was no other type of evidence than the testimony of the parties. Both Roe and Doe’s statement were in exact opposite of each other. Cross-examination is the only way to test the credibility of the party.

The Court Stopped Short of Making these Proceedings Full-Blown Criminal Trials

The Court did limit its ruling regarding cross-examination. Specifically, the Court said, “That is not to say, however, that the accused student always has a right to personally confront his accuser and other witnesses.” The protections afforded to the accused need not reach the level present in criminal prosecutions. “Universities have a legitimate interested in avoiding procedures that may subject an alleged victim to further harm or harassment. And in sexual misconduct cases, allowing the accused to cross-examine the accuser may do just that.”

University Sexual Misconduct Proceedings

The college-run misconduct proceedings are a beast that’s here to stay. Undefined, still evolving, these proceedings are civil in form yet criminal in substance. No one, least of all universities and colleges, know exactly how the proceedings should operate. Guidance has been slow to come and not everyone agrees with that guidance. Throw in the temperature of the #MeToo movement and things get messy. If accused, you need a strong defense. Otherwise you might be left with no defense. If you are a student who has been accused, never try to go through these without an attorney. An attorney skilled to analyze complicated situation and experienced in litigation and cross-examination can make a difference in your case.

Student Proceedings

Read some of our other articles on sexual misconduct proceedings:

  • College Student Sexual Misconduct Proceedings
  • Doe v. Univ. of Cincinnati: College Student Sexual Misconduct Case
  • Federal Court Ruling Provides New Relief to Students in Sexual Misconduct Proceedings
  • Federal Court Upholds Suspension of College Student in Sexual Misconduct Proceedings

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Call Sam Bernstein at 734-883-9584 or e-mail at

Sam Bernstein is a Criminal Defense Attorney in Ann Arbor and Ypsilanti.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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