The Modern Hearsay Rule Should Find Administrative Law Application

Publication year2021
CitationVol. 78

78 Nebraska L. Rev. 135. The Modern Hearsay Rule Should Find Administrative Law Application


Elliot B. Glicksman*

The Modern Hearsay Rule Should Find Administrative Law Application


I. Introduction .......................................... 135

II. Resolved-the Modern Hearsay Rule Should Find

Application Within the Administrative Law Process ..... 139

III. Conclusion ............................................ 145


Both administrative law traditionalists and modern evidence law commentators have criticized technical evidence law principles, particularly the hearsay rule. Much of the criticism relates to the concern that hearsay rule application could, and does, unjustly exclude significant amounts of relevant proofs. These critics have largely signaled their desire for hearsay rule modification, repeal, or nonuse.(fn1) Early advocates of the administrative law process (fn2) suggested that the hearsay rule be completely excluded from administrative law ap-


plication. These commentators were concerned that the hearsay rule would disrupt the administrative law process and cause much delay in its principle task of securing efficient and just dispositions for the claimant.(fn3) Many of these same commentators were likewise concerned that a disproportionate amount of administrative time would be spent deciphering and resolving hearsay rule challenges.(fn4) Thus, early proponents of the administrative law process rejected entirely hearsay rule application to administrative hearings.

Modern evidence commentators continue to challenge the hearsay rule in general jurisdiction trials. Because framers of modern evidence codes remain committed to common-law principles, evidence rules of today, like the Federal Rules of Evidence, retain much of the underlying common-law theories of development, including the hearsay rule.(fn5) However, these framers recognized the practical need for expanded use of hearsay evidence proofs. Modern codes of evidence have expanded the common-law categories of hearsay exceptions (fn6) while simultaneously restricting, somewhat, the common-law definition of hearsay.(fn7) The effect of such modern codification changes is to give the litigator of today freer use of hearsay proofs.

Irrespective of these modern code revisions, many evidence commentators continue to criticize hearsay rule application in general jurisdiction courts.(fn8) Their criticism significantly relates to continued doubts as to the underlying reliability of select common-law developed exceptions. Much of their concern centers on the notion that many of the categorical exceptions, such as the excited utterance, dying declaration, and declaration against interest, were historically supported by general common-law claims of reliability, which if today were subject to empirical social studies challenge would hardly find renewed reliability.(fn9) The drafters of the Federal Rules of Evidence were aware


of such criticism, but remained committed to common-law principles, and thus acknowledged many of these subject categories of exception.(fn10)

Many evidence commentators of today remain concerned that the hearsay rule, albeit reformed, continues to exclude significant relevant proofs, thereby compromising the truth finding process. This argument presupposes the fact that there are no virtues for the American trial other than truth finding. This contention is false. In our system of justice there are many important principles for the exclusion of relevant evidence which similarly impact on claims of truth. Character evidence rules,(fn11) privileged communication principles, (fn12) and authentication requirements (fn13) are among the many exclusionary rules that both general jurisdiction courts and the administrative law tribunals recognize. Though many advocates have taken issue with the hearsay rule, these advocates have never advanced the thought that these diverse evidence rules should be abandoned because of their respective impact on the truth finding process. It is a widely accepted principle of Anglo-American law that not all relevant evidence is admissible. Given that the American trial system is designed to promote both truth and justice, evidentiary rules that exclude potentially relevant evidence should not find rejection.

Administrative law traditionalists were well aware of these complex arguments against using the hearsay rule. They resolved such disputes by advocating that the hearsay rule be excluded from the administrative law process. Perhaps this over-reaction led to the admission of problematic proofs to the argued detriment of the administrative law process.

The often heard justifications for allowing hearsay proofs in the administrative law process relate (1) to the acknowledged absence of lay jury triers of fact and (2) to claims that the administrative law judge is uniquely qualified to resolve complex issues of fact and law. These arguments are makeweight.

Early proponents of the administrative law process were convinced that the absence of a jury was reason enough to exclude hearsay rule application from agency adjudication.(fn14) Though historically the hear-the exclusion of hearsay, that jurors are incompetent to effectively evaluate hearsay, is incorrect).


say rule was inspired by the jury system in general jurisdiction matters, application of the modern hearsay rule is not reserved to jury trials. The Federal Rules of Evidence make no distinction between bench and jury trial for hearsay rule use.

Allowing administrative law judges to ignore judicial rules of evidence because of their claimed expertise cannot be justified either. Our nation's general jurisdiction judges, who likewise deal with sophisticated issues and are singularly knowledgeable about trial processes, are bound by the institutional rules of evidence, generally without exception. The Federal Rules of Evidence were designed to limit judicial power over the admission of evidence without resort to whether or not the fact finder was a jury or judge. The claim that subject matter sophistication should control standards of evidence credibility review is most problematic. Indeed, some courts and statutes require administrative law judges to comply with judicial rules of evidence to ensure the fairness of administrative proceedings.(fn15)

Consistent with administrative law tradition, Congress enacted the Administrative Procedure Act.(fn16) This legislation rejected common-law technical application of the Rules of Evidence, including the hearsay rule. Though the Administrative Procedure Act retained certain general limits on the admission of evidence, such as relevance, materiality, and avoidance of unduly repetitious proofs, the hearsay rule remained inoperative in administrative law proceedings.(fn17)





Administrative adjudication today, in reality, appear functionally equivalent to federal and state civil nonjury trials. These nonjury trials do apply strict hearsay evidence rules where appropriate. It follows, then, that such evidentiary holdings should apply to administrative adjudications as well.(fn18) The need for judicial rules of evidence, more particularly the application of the hearsay rule, is more urgent...

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