Hearsay in State Administrative Hearings: The Maryland Experience and Suggestions for Change

Abstract

It is generally accepted that the rules of evidence governing the admissibility of evidence in a trial are not applicable to administrative proceedings. However, there are numerous inconsistent court opinions on the proper role of hearsay in administrative decisions. This article offers an analytic framework to provide predictable guidance to the administrative agencies, the courts , and litigants on the issue of the proper use of hearsay in administrative adjudications. The first factor to be considered is the nature of the claim or issue involved. Next, the agency should consider the nature of the evidence presented. The third factor to be taken into account is the identity of the absent declarant. Under the fourth factor , the availability of the absent declarant and the usefulness of cross-examination should be considered. The final factor to be considered in the proposed framework is the nature of the agency and its adjudicative hearings.

It is also proposed that procedural safeguards be implemented to protect a party's right to test the reliability of hearsay evidence. One suggestion is a system of prior notice in which the party intending to offer hearsay be required to provide notice before the hearing. Also, if an agency's decision does rely on hearsay, the losing party should have the right to request that the record be re-opened and given the opportunity to subpoena and cross-examine the adverse hearsay witnesses.

Implementation of these proposals should be adopted as administrative procedural regulations. State administrative agencies should be permitted to rely on hearsay in their decisions. The proposed analytic framework will allow for these adjudicatory proceedings to remain efficient, and help provide improved judicial review.

Keywords: rules of evidence, administrative hearings, due process, substantial evidence, cross-examination, de novo appeals

JEL Classification: K19, K23, K49