The Process-Based Approach to Cross-Examination in Administrative Proceedings.

AuthorMalkiel, Yakov

    Two fundamental rules converge in administrative proceedings. The first is the rule that hearsay is admissible. From its enactment in 1946, the Administrative Procedure Act (APA) has provided that "[a]ny oral or documentary evidence may be received," subject to practical limitations on irrelevant, immaterial, and repetitious material. (1) This approach guides most administrative tribunals, (2) and administrative decisions may stand (in the right cases) even where hearsay is their only basis. (3) The permissive approach to hearsay grew out of the desire for flexibility and efficiency in administrative proceedings, as well as the growing distrust of the hearsay rules' truth-seeking capabilities, especially in nonjury proceedings. (4)

    The second fundamental rule took shape in 1970 in Goldberg v. Kelly. (5) Addressing welfare termination proceedings in New York, the Supreme Court announced that the subjects of administrative proceedings must be afforded "procedural due process." (6) Two of the specific guarantees the Court adopted were those of "confrontation and cross-examination." (7) The Court explained: "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." (8) Subjects of administrative proceedings "must therefore be given an opportunity to confront and cross-examine the witnesses." (9)

    Goldberg, which here will refer specifically to its guarantee of cross-examination, (10) lives in fundamental tension to the rule admitting hearsay. Hearsay brings statements made outside the hearing room into evidence. (11) Such statements, by definition, are not cross-examined. An Illinois court thus says that the right to cross-examination "implies" a prohibition on hearsay. (12)

    Other courts have elaborated on the problem. In the pre-APA case Tri-State Broadcasting Co. v. FCC, (13) the FCC permitted a witness to describe the opinions of various people he had spoken to about the merits of a proposed radio permit. (14) The D.C. Circuit struck down the FCC's decision, explaining: "The testimony admitted was clearly hearsay.... Its admission deprived the appellant of the right to cross-examine those ... whose views [the witness] was reflecting into the record." (15) Costa v. Fall River Housing Authority, (16) a much more recent Massachusetts case, considered an agency's decision to terminate housing rights on the basis of a police report and newspaper article indicating that the tenant had engaged in prostitution. (17) The intermediate appellate court wrote:

    Goldberg afforded [the tenant] the right to confront and cross-examine adverse witnesses. The housing authority's use of the hearsay information in the report and the newspaper story denied those rights. In effect the police officer and the newspaper reporter testified in absentia and beyond the reach of cross-examination. (18) Other courts have also recognized the same conflict between administrative adjudication's rules concerning hearsay and cross-examination. (19)

    This paradox dissolves in certain jurisdictions and types of proceedings. No U.S. jurisdiction can eliminate the Goldberg rule, because Goldberg defines obligations applicable to the states through the Fourteenth Amendment. (20) The states can, however, reject the mainstream rule allowing hearsay into administrative proceedings. The hearsay/Goldberg paradox is thus absent in jurisdictions such as Georgia, where "hearsay is not appropriate evidence even in an administrative proceeding." (21) The paradox is similarly absent from proceedings before any specific administrative agency that excludes hearsay. (22)

    Types of proceedings in which the paradox does not arise are those in which the Supreme Court has tamped Goldberg down. There is no hearsay/Goldberg paradox in prison disciplinary proceedings, because Wolff v. McDonnell (23) held such proceedings exempt from the right to cross-examination. (24) Morrissey v. Brewer, (25) while reiterating the right to cross-examination in parole revocation proceedings, added the parenthetical caveat that this right yields if "the hearing officer specifically finds good cause for not allowing confrontation." (26) Under Gagnon v. Scarpelli, (27) the same caveat applies in probation revocation proceedings. (28) In the probation and parole settings, the paradox is therefore limited to cases lacking "good cause" to dispense with cross-examination. (29)


    Courts have taken several approaches to confronting the hearsay/Goldberg paradox. These include discounting the right to cross-examination as not absolute, restricting the category of cross-examinable witnesses to those testifying in person, and interpreting the right to cross-examination as a right to subpoena any out-of-court declarants. (30)

    1. Discounting the Cross-Examination Right

      Some courts have tackled the paradox by favoring hearsay's admissibility and discounting the right to cross-examination as "not absolute." An archetype of this approach is Beauchamp v. De Abadia, (31) arising from a Puerto Rico proceeding to withhold a medical license. (32) The putative physician complained on appeal that statements of two adverse witnesses were admitted as hearsay through an investigator's testimony. (33) Addressing the argument, the First Circuit recognized the hearsay/Goldberg paradox implicitly, stating: "The principle that hearsay evidence is admissible in administrative proceedings would be vitiated if a party could object to its admission on the ground that he was denied his right to cross-examination." (34) This observation is as true as its corollary--that the right to cross-examine witnesses is vitiated when an agency relies on hearsay.

      The First Circuit then rejected the physician's claim that the licensing agency violated his right to cross-examination, explaining that "[t]he right to cross-examination, although important and useful, is not absolute." (35) In support of this analysis, the court cited Wolff (36) Other decisions adopt the same analysis. (37)

      The foundations of this approach in the case law are shakier than they may seem. In a literal sense, it is true that Wofrendered Goldberg not absolute, but it did so by recognizing the exceptional nature of prison life. As Judge Friendly wrote, "the Wolff decision rests heavily on the special problems of according the full gamut of procedural rights within a prison." (38) The animated core of Wolff s concerns is worth recalling:

      Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment, and despair are commonplace.... The reality is that disciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between inmates and authority and between inmates who are being disciplined and those who would charge or furnish evidence against them. Retaliation is much more than a theoretical possibility; and the basic and unavoidable task of providing reasonable personal safety for guards and inmates may be at stake. (39) The Wolff Court's thorough reliance on the unusual circumstances that make cross-examination dangerous in prison is a powerful indication that the Court intended the right to cross-examination to remain vital elsewhere. That case's holding and analysis do not suggest any limitation on this right in routine administrative settings, such as Beauchamp's license-withholding proceeding.

      Morrissey and Gagnon do address proceedings outside the prison discipline context, namely revocations of parole and probation. (40) Both types of proceedings concern the execution of penal sentences already imposed on individuals convicted of crimes. There is good reason to support a robust right to cross-examination in those settings, (41) but they also seem significantly different from the mine run of administrative matters (i.e., those not involving adjudicated crimes). Perhaps more importantly, Morrissey and Gagnon reiterate that the right to cross-examination does persist, except where "the hearing officer specifically finds good cause for not allowing confrontation." (42) Even if this caveat applies beyond the parole and probation contexts, it is an exception. To bless the admission of hearsay without insisting on "good cause" is to turn the Supreme Court's parenthetical caveat into the rule.

      For related reasons, the Beauchamp approach fails to offer a meaningful, principled precedent of its own. Beauchamp called the right to cross-examine witnesses "important and useful," (43) but it declined to enforce that right. If there was no error in depriving Mr. Beauchamp of the opportunity to cross-examine the agency's witnesses, then there is no obvious setting in which that opportunity remains guaranteed. Decisions such as Beauchamp leave Goldberg hollow.

      One justification offered for this outcome is the thesis that the Fourteenth Amendment's operative touchstone is "reliability." Thus, in Costa, the Massachusetts Supreme Judicial Court walked back the intermediate appellate court's holding that the admission of hearsay violated the right to cross-examination, stating: "'Unlike the confrontation clause, due process demands that evidence be reliable in substance' .... [Reliability, not cross-examination, is the 'due process touchstone.'" (44) This line of analysis suffers from two key weaknesses.

      The first is the precariousness of depending on reliability. In Crawford, overturning the rule that reliable hearsay can be admitted in criminal cases, the Supreme Court offered a devastating critique of reliability as a weight-bearing principle:

      Whether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each of them. Some courts wind up attaching the same significance to opposite facts. For example, the Colorado Supreme Court held a statement more reliable...

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