Contested case hearing is the name for

quasi-judicial A quasi-judicial body is non-judicial body which can interpret law. It is an entity such as an arbitration panel or tribunal board, that can be a public administrative agency but also a contract- or private law entity, which has been ...

administrative hearings governed by state law. State agencies that make decisions that could affect people's "rights, duties, and privileges" must have a process for holding contested case hearings. The purpose of these hearings is to provide the decision-makers with the most complete and relevant information they need to make a proper decision. These hearings are like an informal

court proceeding Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules are ...

. They have three parts: I. Pre-hearing: where the parties and scope of the hearing is decided II.

Hearing Hearing, or auditory perception, is the ability to perceive sounds through an organ, such as an ear, by detecting vibrations as periodic changes in the pressure of a surrounding medium. The academic field concerned with hearing is audit ...

: where witnesses are called to

testify In law and in religion, testimony is a solemn attestation as to the truth of a matter. Etymology The words "testimony" and "testify" both derive from the Latin word ''testis'', referring to the notion of a disinterested third-party witness. ...

and

evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, eviden ...

is submitted III. Post-hearing: where the parties propose and advocate for a particular outcome After these three phases are complete, the decision-makers decide to either approve, deny, or approve with conditions whatever it is that is being proposed. The decision can either be made at the final hearing or a later public meeting.

Right to cross examine

One of the fundamental rights afforded to parties in contested cases is the right to cross examine evidence presented against that party. Section 5 USC 556(d) contains the fundamental right to cross examine evidence used in

adjudicative Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the p ...

hearings on the record. The statute begins by articulating the substantial evidence test, which actually requires that decisions be made on "reliable, probative and substantial evidence", as follows:

Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A
sanction A sanction may be either a permission or a restriction, depending upon context, as the word is an auto-antonym. Examples of sanctions include: Government and law * Sanctions (law), penalties imposed by courts * Economic sanctions, typically a b ...
may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence.

The APA then continues by making it clear that reliability depends upon cross examination:

A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.

The 1947 Attorney General's Manual on the

Administrative Procedure Act The Administrative Procedure Act (APA), , is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations, and it grants U.S. federa ...

, issued as a contemporaneous explanation of the Act, emphasizes the importance of the right of cross examination in adjudicative hearings to assure fundamental fairness. The Manual begins by explaining that technical rules of evidence will not be followed, provided that agency action is supported by reliable,

probative Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a te ...

and substantial evidence:

"The second sentence of section 7(c) ow 5 USC Section 556(d)provides that "Any oral or documentary evidence may be received, but every agency as a matter of policy provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.... Under section 7(c) it is clear that, as before, the technical rules of evidence will not be applicable to administrative hearings.... Agency action must be supported by "reliable, probative, and substantial evidence."... Nor is an agency forbidden to draw such inferences or presumption as courts customarily employ, such as the failure to explain by a party in exclusive possession of the facts, or the presumption of continuance of a state of facts once shown to exist.

But the Attorney General's Manual makes it clear that neither the relaxation of the rules of evidence, nor the admission of

documentary evidence Documentary evidence is any evidence that is, or can be, introduced at a trial in the form of documents, as distinguished from oral testimony. Documentary evidence is most widely understood to refer to writings on paper (such as an invoice, a c ...

, may swallow up the right of cross examination. The United States must produce its witnesses for cross examination.

Section 7(c) provides further that "Every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.

The Manual continues:

As here used "documentary evidence" does not mean affidavits and written evidence of any kind. Such a construction would flood agency proceedings with hearsay evidence... Against this background, it is clear that the "right to present his case or defense by oral or documentary evidence" does not extend to present evidence in affidavit or other written form so as to deprive the agency or opposing parties of opportunities for cross-examination, nor so as to force them to assume the expense of calling the affiants for cross-examination.

References

{{Reflist Law of the United States