A Refesher on the Use of Hearsay Evidence in Administrative Proceedings

• Jurisdiction: Colorado,United States
• Citation: Vol. 27 No. 9 Pg. 87
• Pages: 87
• Publication year: 1998

27 Colo.Law. 87 Colorado Lawyer 1998.

1998, September, Pg. 87. A Refesher on the Use of Hearsay Evidence in Administrative Proceedings

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87

Vol. 27, No. 9, Pg. 87

The Colorado Lawyer
September 1998
Vol. 27, No. 9 [Page 87]

Specialty Law Columns
Government and Administrative Law News
A Refesher on the Use of Hearsay Evidence in Administrative Proceedings
by Lisa D. Hamilton-Fieldman

Does this sound familiar All too often, the following is the sum total of the evidentiary discussion that accompanies the admission of a hearsay statement in administrative proceedings

"Objection, Your Honor, hearsay!"
"Your Honor, hearsay is admissible in administrative proceedings."
"Any response, Counsel"
"No, Your Honor."
"Overruled."

The statement is admitted, and the administrative law judge ("ALJ")1 is left to determine the weight and credibility of the statement in a vacuum

It is true that hearsay statements are generally admissible in administrative proceedings if they have some probative value.2 It also is true under ICAO v. Flower Stop Marketing Corp. and Department of Revenue v. Kirke that an administrative determination may be based entirely on hearsay evidence, if that evidence is sufficiently reliable and trustworthy.3 These qualifications concerning probative value, reliability, and trustworthiness illustrate the problems with the exchange above. Statute and case law may have facilitated the admission of hearsay evidence during administrative proceedings, but they did not change the character of that evidence

Hearsay Evidence in General

Hearsay evidence has traditionally been excluded from judicial proceedings because it is not reliable or trustworthy and cannot be cross-examined to test those traits.4 The traditional exceptions to the hearsay exclusion constitute an acknowledgment that certain categories of hearsay evidence do not suffer from the same lack of reliability and trustworthiness.5

Even when these hearsay exceptions are invoked during litigation, however, a foundation is laid for how and why the evidence fits within the exception. For example, the admission of a business record is usually sought through the custodian of that record or the person who generated it either of whom can testify as to when, why, where, and how the record was made. In the course of this testimony, the finder of fact is given a context for the...