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I. INTRODUCTION
In this article, I will discuss three types
of evidence--hearsay, expert testimony, and
findings of prior proceedings--and the
peculiarities of their treatment in the
administrative context. As shall be seen, when
evidentiary issues arise in administrative
hearings, the focus is not so much on whether
certain evidence is admissible (as it would be
in a jury trial), but rather on what to do with
the evidence once admitted.
Federal and Massachusetts standards on the
admission of evidence in administrative hearings
both allow admission of evidence without
reference to formal evidentiary rules. The
federal Administrative Procedure Act provides
that:
Any oral or documentary evidence may be
received, but the agency as a matter of
policy shall provide for the exclusion of
immaterial, or unduly repetitious evidence.
5 U.S.C. 556(d).1
Similarly, the Massachusetts Administrative
Procedure Act provides that:
Evidence may be admitted and given probative
effect only if it is the kind of evidence on
which reasonable persons are accustomed to rely
in the conduct of serious affairs. M.G.L. c.
30A, 11(2).
II. HEARSAY
As a result of these broad standards of
admissibility, hearsay is admissible in federal
and state administrative hearings. McKee v.
United States, 500 F.2d 525, 528 (Ct. Cl. 1974);
Town of Brookline v. Commissioner of DEQE, 387
Mass. 372, 389, 439 N.E.2d 792, 805 (1982).2
But can an administrative law judge rely on
hearsay alone in reaching a decision?
A. Can an ALJ rely on Hearsay Alone?
The answer at one time was no. In 1916, the
New York Court of Appeals held that while an
agency was free to accept what evidence it
chose, "still in the end there must be a
residuum of legal evidence to support" the
decision. Carroll v. Knickerbocker, 218 N.Y.
435, 440 (1916). Twenty-two years later, the
U.S. Supreme Court adopted a variant of this
"residuum rule," when it declared that
administrative decisions must have "a basis in
evidence having rational probative force. Mere
uncorroborated hearsay or rumor does not
constitute substantial evidence." Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 230 (1938).
Richardson v. Perales, 402 U.S. 389 (1971),
substantially altered this picture. In Perales,
the Supreme Court held that a Social Security
examiner could credit medical reports of doctors
presented on behalf of the agency over the live
testimony of a doctor who testified on behalf of
a disability claimant. The Court concluded that
the medical reports, though uncorroborated
hearsay, were reliable because the declarants
had no evident bias, because their reports were
available prior to the hearing and were
essentially consistent with one another, and
because written medical reports have a certain
inherent reliability. The Court noted that
claimant's.3
Massachusetts has likewise accepted that
hearsay alone can constitute substantial
evidence. Murphy v. Superintendent, Mass.
Correctional, 396 Mass. 830, 834, 489 N.E.2d
661, 663 (1986). In Murphy, inmates challenged a
ruling of a prison disciplinary board that had
taken away "good time" credits based entirely on
informants' statements to a corrections officer
that the inmates had killed another prisoner.
The Supreme Judicial Court found the evidence
substantial because the corrections officer was
able to state some basis for believing the
informants were reliable. Id.; see also Embers
of Salisbury, Inc. v A.B.C.C., 401 Mass. 526,
530, 517 N.E.2d 830, 832 (1988)(declarant's
motive to lie went to the weight to be given her
testimony, not to its admissibility).
Despite the formal elimination of the
residuum rule, there remains an undercurrent of
suspicion of agency reliance solely on hearsay
testimony, particularly uncorroborated hearsay.
For example, in Merisme v. Board of Appeals on
Motor Vehicles, 29 Mass. App. Ct. 296, 559
N.E.2d 1263 (1990), the Appeals Court vacated a
decision of the Board of Appeals on Motor
Vehicle Liability Policies and Bonds to uphold a
surcharge on Merisme's auto insurance policy
based on an accident report by an officer who
interviewed a witness who claimed he saw Merisme
drive through a red light. 27 Mass. App. Ct. at
471-72, 539 N.E.2d at 1053.4
The Appeals Court acknowledged that such a totem
pole hearsay was admissible in an agency
proceeding, but nevertheless concluded that in
the absence of proof that the eyewitness
statement contained in the police report was
reliable, the Board lacked "substantial
evidence" for its decision as required by M.G.L.
c. 30A, 14(7)(e). Id. at 475-76, 539 N.E.2d at
1055.
B. What Hearsay is Reliable?
Are there any rules to guide an agency in
deciding whether it can rely on particular
hearsay testimony? While the reliability of
hearsay is largely a case-by-case determination,
there are some guideposts:
1. Foundation
Hearsay documentary evidence must still have
a foundation. See 5 U.S.C 556(d)(must show that
"real evidence is what it purports to be"). This
can be established easily if the evidence would
otherwise be admissible under the rules of
evidence. See, e.g., Woolsey v. National Transp.
Safety Board, 993 F.2d 516, 530 (5th Cir.
1993)(articles and self-promoting advertisements
in a weekly magazine were self-authenticating
under FRE 902).5
Other testimony sufficient to establish the
accuracy of the document is equally permissible.
See Anderson v. Dept. of Transportation, FAA,
827 F.2d 1564 (Fed. Cir. 1987)(air traffic
controller logs were altered during course of
strike, and thus would not have been admissible
as "business records," but were nevertheless
admitted when FAA officials testified and
explained the discrepancies).
On the other hand, documents that lack an
adequate foundation have little probative value
even if they are admitted into evidence. Thus,
for example, photographs that do not clearly
show what they purport to show have little
value, particularly when no testimony is offered
to verify their accuracy. See McKee v. United
States, 500 F.2d 525, 528 (Ct. Cl. 1974).
Evidence from anonymous sources is also
disfavored because "[u]se of [anonymous reports]
raises questions of fundamental fairness and
seriously affects the integrity of the
administrative hearing". McLees v. Sullivan, 879
F.2d 451, 454 (8th Cir. 1989).6
2. Substantive Statute Focuses on Hearsay
If an applicable statute or regulation
focuses on factors amenable to proof through
hearsay, then hearsay evidence is more likely to
be found reliable. For example, because the
Department of Environmental Protection operates
under regulations that define air pollution as
air contamination that causes a nuisance or
"unreasonably interfere[s] with the comfortable
enjoyment of life and property or the conduct of
business" (310 CMR 7.00), it could order a
composting facility shut down based on reports
of odors emanating from the facility. Town of
Shrewsbury v. Commissioner of the Dept. of
Environmental Protection, 38 Mass. App. Ct. 946,
648 N.E.2d 1287 (1995)(these reports coincided
with the times when the facility was in
operation and were confirmed by DEP inspectors
who also smelled the odors).
On the other hand, a statutory scheme may
preclude reliance on certain hearsay. Thus, if
an agency is required to provide a de novo
hearing, it may not give evidentiary weight to
the findings of the tribunal whose decision was
appealed, but instead must hear the evidence
afresh. Dolphino Corp. v. ABCC, 29 Mass. App.
Ct. 954, 955, 559 N.E.2d 1261, 1263 (1990).
3. Weight of the Evidence
An administrative law judge must consider all
the relevant evidence admitted when deciding
whether to rely on particular hearsay testimony.
See Brown v. Rock Creek Min. Co., Inc., 996 F.2d
812, 816 (6th Cir. 1993). Similarly, reviewing
courts must consider the entire record,
including any portions that detract from an
agency's decision, when deciding whether the
agency acted properly in relying on hearsay
evidence. Edward E. v. Dept. of Social Services,
42 Mass. App. Ct. 478, 480-81, 678 N.E.2d 163,
165 (1997).
When a court has concluded that an agency
could properly rely on the hearsay testimony
admitted, the opposing party generally failed to
put on compelling contrary evidence (or any
contrary evidence at all). Thus, the Merit
Systems Protection Board was justified in
upholding the dismissal of a postal worker for
sale of cocaine to an informant based on police
reports of the sale that were contradicted only
by the clerk's unsworn denial in which he failed
to explain why he met the informant in a parking
lot or how the informant came to acquire cocaine
after visiting the clerk at his house. Sanders
v. U.S. Postal Service, 801 F.2d 1328 (Fed. Cir.
1986).
In contrast, when a court has decided that
hearsay testimony an agency relied on was not
substantial, the hearsay was generally
contradicted by other evidence that, more often
than not, would have been admissible under
normal evidentiary rules. For example, the
Supreme Judicial Court reversed a decision of
the Division of Employment Security to deny
unemployment benefits to a hospital worker who
was fired for leaving his work area when he had
been told not to when the only evidence that the
employee was told came from his supervisor's
personal assistant, though she had not seen him
that day. The Court ruled that the hearsay
evidence of the assistant was not substantial
because it was uncorroborated and was
contradicted by the testimony of the supervisor,
who testified only that the former employee had
left without asking permission. Goodridge v.
Director of Divis. of Employment, 375 Mass. 434,
377 N.E.2d 927 (1978).
Hearsay can in some instances corroborate
other hearsay. Along these lines, HEW's decision
to deny federal aid to the Broward County School
Board because it had sold school property to a
number of private schools that discriminate
based on race was adequately supported by (1) a
questionnaire completed by a public school
teacher, after visiting one of the private
schools, in which she reported that the school
"will not accept black" students, (2) the
statement of a member of a panel set up to
review the school board's federal aid request
that the principal of another one of the schools
had told her the school did not accept black
students, and (3) a card obtained from a
receptionist at a third school that had printed
on it "the policy of the school is one of
non-integration." School Board of Broward Cty.,
Fla. v. H.E.W., 525 F.2d 900 (5th Cir. 1976).
To be successful, challenges to hearsay
evidence must focus on the matter the hearsay is
meant to prove. In the previously mentioned
Anderson case, air traffic controllers argued
that logs used to justify dismissals were
inaccurate because they failed to take into
account vacations and leaves, but the Federal
Circuit rejected these attacks as simply
broadsides that did not question the accuracy of
the logs as they related to individual
controllers who had been fired. 827 F.2d 1565
(Fed. Cir. 1987).
Finally, as the stakes rise, reviewing courts
will likely require more evidence of reliability
before determining that hearsay evidence is
substantial. Thus, when a matter as significant
as placing a father's name on a sex offender
registry came before the Appeals Court in Edward
E., the Court declined to conclude that a
child's disclosures to three different
individuals that her father touched her private
parts constituted substantial evidence because
the child's statements lacked specificity and
there was no corroborating evidence. 42 Mass.
App. Ct. at 486, 678 N.E.2d at 168.
III. EXPERT TESTIMONY
The broad standards of admissibility that
allow administrative agencies to admit hearsay
testimony also allow agencies to consider
opinion testimony from lay and expert witnesses
without being bound by the evidentiary rules
that limit the admissibility of such testimony
in court.7
Brockton Taunton Gas Co. v. Securities and
Exchange Com'n, 396 F.2d 717, 721 (1st Cir.
1968). This means that, as a practical matter,
agencies have greater discretion to allow than
to exclude proposed expert testimony.8
Still, "[a]n administrative agency has some
discretion to admit [or exclude] expert
testimony so long as it does not act
arbitrarily." Pagel, Inc. v. S.E.C., 803 F.2d
942, 947 (8th Cir. 1986). Hence, an agency need
not accept testimony from every expert
proffered. See, e.g., Foxboro Associates v.
Board of Assessors of Foxborough, 385 Mass. 679,
690, 433 N.E.2d 890, 897 (1982)(qualification of
an expert is a question of fact for agency to
determine).
A. Agency Discretion to Exclude or Strike
Expert Testimony
An agency may exclude expert testimony that
is irrelevant. See Yaffe Iron & Metal Co., Inc.
v. U.S. E.P.A., 774 F.2d 1008, 1016-17 (10th
Cir. 1985); Alabama Ass'n of Ins. A. v. Bd. of
Gov. of F.R. System, 533 F.2d 224, 253-54 (5th
Cir. 1976)(no prejudice found in exclusion of
testimony on credit life and health insurance as
these differed in significant ways from the
types of insurance at issue). An agency may also
exclude proposed testimony that is not within
the witness's area of expertise. See Yaffe, 774
F.2d at 1016 (no error in excluding testimony
from witness concerning PCB volatility when his
area of expertise was primarily air and water
quality).
9
Moreover, an agency may strike expert
testimony if it lacks "any probative value,"
i.e., when it is not based on a legally
competent foundation. Board of Assessors v.
Ogden Suffolk Downs, 398 Mass. 604, 606-07, 499
N.E.2d 1200, 1202-03 (1986)(testimony on the
depreciated reproduction cost of improvements to
Suffolk Downs stricken for failure of expert to
consider $1.6 million in improvements to the
property). Finally, since the purpose of expert
testimony is to assist the factfinder (usually
by drawing inferences from facts in a manner
beyond ordinary knowledge), an agency may strike
otherwise competent expert testimony if it is
not helpful. See, e.g., Board of Assessors of
Andover v. Innes, 396 Mass. 564, 565-66, 487
N.E.2d 512, 513 (1986)(appraisal testimony
stricken following direct examination when
witness failed to testify to any personal
knowledge of the subject property and did not
state his opinion of its value in response to a
suitable hypothetical question).10
B. Role of Agency Expertise
In determining the necessity of particular
expert testimony, an agency may take its own
expertise into account. Pagel, 803 F.2d at 947
(ALJ who was "highly sophisticated in securities
matters" excluded testimony regarding industry
practice of securities traders). An agency must
use caution if it intends to rely on its own
expertise, however, for it "may not sit as a
silent witness where expert testimony is
required to establish an evidentiary basis for
its conclusions." Langlitz v. Board of
Registration of Chiropractors, 396 Mass. 374,
381, 486 N.E.2d 48, 53 (1985). If "there is
sufficient evidence in the record upon which ...
[ an agency] can apply its expertise, the ...
[agency] may evaluate the facts without the
assistance of an expert witness," but "it must
put in the record the basis for its expertise."
D'Amour v. Bd. of Reg. in Dentistry, 409 Mass.
572, 585, 567 N.E.2d 1226, 1233 (1991).
C. Non-Expert Opinion Testimony
While opinion testimony of non-expert
witnesses is admissible, an agency need give it
no more credit than it deserves. See Cream Wipt
Food Prod. Co. v. Federal Security Admin., 187
F.2d 789, 791 (3d Cir. 1951)(testimony of
government chemist that public would be misled
by a particular salad dressing label was
insufficient evidence to support agency order
since chemist had no expertise in consumer
reactions). Nevertheless, such testimony must be
taken into account when the governing statute so
requires. See Lund v. Weinberger, 520 F.2d 782
(8th Cir. 1975)(Social Security disability
claimant's unrebutted testimony that accident
caused headaches that limited his ability to
work was sufficient to establish impairment).
Furthermore, an agency may, when the evidence
warrants it, rely upon lay testimony over expert
testimony. See Avondale Industries v. Director,
OWCP, 977 F.2d 186 (5th Cir. 1992)(when issue
was identity of last employer to expose claimant
to noise that injured his hearing,
administrative law judge could properly credit
claimant's testimony that the workplace of his
employer subsequent to Avondale was "just like
around town, standing on a corner" against
expert's testimony based on a hypothetical that
exaggerated claimant's contacts with noisy
equipment); Shrewsbury, 38 Mass. App. Ct. at
947-48, 648 N.E.2d at 1288-89 (ALJ could credit
reports of odor coming from composting facility
and discount engineering report on air quality
when there was no showing that the procedures
used to collect air samples were accurate, and
the modeling technique had proven inaccurate on
several occasions).
D. Conflicting Expert Testimony
When expert testimony is conflicting, an
administrative law judge's decision to credit
certain testimony must be based on substantial
evidence. Paul v. Shalala, 29 F.3d 208, 210 (5th
Cir. 1994). Numerous efforts have been made to
come up with rules to assist administrative law
judges in evaluating conflicting expert
testimony.11
See, e.g., New England Tel. & Tel. v. Board of
Assessors, 392 Mass. 865, 873, 468 N.E. 2d 263,
268 (1984)(testimony of expert witness, whose
fee is contingent on success, may not be totally
disregarded simply because of the fee
arrangement). These rules, however, are not
entirely consistent. Compare Brown v. Rock Creek
Min. Co., Inc., 996 F.2d 812, 816 (6th Cir.
1993)(treating physicians' opinions entitled to
greater weight than non-treating physicians) and
Paul v. Shalala, 29 F.3d at 211 ("opinion of a
specialist generally is accorded greater weight
than that of a non-specialist"). For a further
discussion, see 4 Stein, Administrative Law at
28.02.
IV. PRIOR PROCEEDINGS
When considering whether the result of a
prior administrative or court proceeding is
admissible in an administrative hearing, the
first question that must be addressed is whether
that prior result is preclusive in some fashion
or whether it now is simply evidence admissible
in the present proceeding under the broad
standards of admissibility applicable in
administrative hearings. I will consider two
standard preclusions first (res judicata and
collateral estoppel), then move on to some
features concerning the use of prior decisions
of the same agency, and finally I will address
the use of prior proceedings as evidence.
A. Preclusion
The "principles of claim preclusion [res
judicata] and issue preclusion [collateral
estoppel] ... apply both to administrative
boards and to courts." Lopes v. Board of Appeals
of Fairhaven, 27 Mass. App. Ct. 754, 755, 543
N.E.2d 421, 422 (1989); see Restatement (Second)
of Judgments 83 (1982). These principles apply
whether it is an agency considering the
preclusive effect of either a prior court or
agency proceeding or a court considering the
preclusive effect of a prior agency proceeding.12
Needless to say, there are some peculiarities to
the application of res judicata and collateral
estoppel in administrative practice.
1. Res Judicata
The doctrine of res judicata bars
relitigation of legal claims that were (or could
have been) determined in an earlier action.
Restatement (Second) of Judgments 17-19 and 24.
Administrative decisions are res judicata when
an agency acts after a trial type hearing. See
United States v. Utah Construction & Mining Co.,
384 U.S. 394, 421-22 (1966). However, the
application of res judicata before an
administrative agency may be limited by statute.
See Alexander v. Garner-Denver Co., 415 U.S. 36,
54 (1974)(an arbitrator's decision under
collective bargaining agreement is not given
preclusive effect in a later statutory
discrimination action before a court or
specialized administrative agency).
Two issues arise in the application of res
judicata to agency decisions: is the claim the
same and was the agency's action an
adjudication? Both are illustrated in Purter v.
Heckler, 771 F.2d 682 (3d Cir. 1985). Purter
applied for disability benefits based on
alcoholism, after having been twice denied
benefits on other bases (though the record of
the prior proceedings did include evidence of
excessive drinking). The Third Circuit declined
to apply res judicata to bar Purter's most
recent claim both because it was sufficiently
different, as it was now based specifically on
alcoholism, and because the benefit denials in
the prior proceedings did not need to be
considered a final adjudication, as Purter was
not represented by counsel and the agency could
under its rules reconsider those decisions if
equity warranted it. 771 F.2d at 691-95.13
The federal government must, in general, give
"full faith and credit" to state agency final
decisions. 28 U.S.C. 1738. Congress can, however
create exceptions to this principle. See, e.g.,
Univ. of Tennessee v. Elliott, 478 U.S. 788
(1986)(state ALJ's decision rejecting claim of
black employee that he was discharged on account
of his race did not bar him from maintaining
suit in federal court under Title VII, as
Congress had intended a trial de novo, but it
did bar him from pursuing a 1983 action).
2. Collateral Estoppel
"When an issue of fact or law is actually
litigated and determined by a valid and final
judgment, and the determination is essential to
the judgment, the determination is conclusive in
a subsequent action between the parties, whether
on the same or a different claim." Fireside
Motors, Inc. v. Nissan Motor Corp. in U.S.A.,
395 Mass. 366, 372, 479 N.E.2d 1386, 1390
(1985), quoting Restatement (Second) of
Judgments 27.14
"Courts routinely apply collateral estoppel to
issues resolved by agencies," according to
Professor Kenneth Culp Davis, but he adds some
caveats regarding the nature of the agency
making the determination. Thus:
A decision by an agency primarily qualified
to determine a question is binding on
another agency, but [not vice-versa. See
Sunshine Anthracite Coal Co. v. Adkins, 310
U.S. 381 (1940)(National Bituminous Coal
Commission's decision that Sunshine was a
producer of bituminous coal was binding on
IRS when company resisted payment of tax as
a bituminous coal producer).] .... More
generally, when an agency that is
specialized in an area incidentally resolves
an issue in another area, its decision may
be denied preclusive effect. .... City of
Cleveland v. Cleveland Elec. I. Co., 734
F.2d 1157, 1164-1166 (6th Cir.). .... But a
decision by a specialist agency on a
nonspecialist question has preclusive effect
if affirmed by a court. EZ Loader Boat
Trailers v. Cox Trailers, 746 F.2d 375,
377-379 (7th Cir. 1984).
II Kenneth Culp Davis and Richard J. Pierce,
Jr., Administrative Law Treatise 13.4 at 260
(1994).
Specialization aside, the role an agency
plays may impact on whether its findings are
granted collateral estoppel effect. In Swineford
v. Snyder County, 15 F.3d 1258 (3d Cir. 1994),
the Third Circuit held that a ruling from the
Pennsylvania Unemployment Compensation Review
Board favoring a fired county employee did not
preclude the county from defending against her
1983 civil rights action by claiming she was
disruptive because unemployment compensation is
designed to promote a policy dissimilar to the
policies promoted by 1983. In contrast, because
the Wetlands Protection Act provides the
Department of Environmental Protection with the
final say in imposing conditions on projects so
as to promote the wetlands interests stated in
the Act, the issuance of a wetlands permit by
DEP mooted a parallel dispute over a denial of
the project under a local wetlands bylaw, which
adopted the language of the Act. DeGrace v.
Conservation Com'n of Harwich, 31 Mass. App. Ct.
132, 575 N.E.2d 373 (1991).15
Collateral estoppel is available against the
government, but only in limited circumstances.
The government can be precluded from
relitigating an issue of fact against the same
party when it is acting in its capacity as
sovereign. See Continental Can Co. v. Marshall,
603 F.2d 590 (7th Cir. 1979)(Continental Can
entitled to injunction against pending citations
for noise violations when company had already
prevailed in identical litigation on the same
issue at eight other plants). The government can
also be precluded from relitigating an issue of
law with the same party. United States v.
Stauffer Chemical Co., 464 U.S. 165 (1984). The
government may, however, relitigate a legal
issue when the parties are different. United
States v. Mendoza, 464 U.S. 154 (1984). There,
the Supreme Court observed that:
[T]he Government is more likely than any
private party to be involved in lawsuits
against different parties which nonetheless
involve the same legal issues. .... A rule
allowing nonmutual collateral estoppel
against the Government in such cases would
substantially thwart the development of
important questions of law by freezing the
first final decision rendered on a
particular legal issue.
464 U.S. at 160.
B. Prior Decisions of the Same Agency
While there is a need for "reasoned
consistency" in agency decisions, prior
decisions of an agency are not normally
admissible to prove some fact in dispute, to
shift a burden, or create a presumption. Ogden
Suffolk Downs, 398 Mass. at 605-06, 499 N.E.2d
at 1202 (upholding Tax Board's exclusion of a
1979 valuation of Suffolk Downs by the Board in
a proceeding for 1980 - 1982 tax abatement).
General consideration of an issue in a prior
proceeding does not foreclose an agency from
specifically considering it later. Sudbury, 351
Mass. at 223, 218 N.E.2d at 422 (issue of power
line placement above or below ground touched on
in earlier proceeding).
Agency decisions can serve as precedent when
what was established was a policy rather than a
finding of fact specific to a party. What
constitutes a policy for this purpose can vary
widely, so long as the prior case established
some principle of general applicability. See
Aetna Cas. & Sur. v. Com'r of Ins., 408 Mass.
363, 371-74, 558 N.E.2d 941, 946-48
(1990)(method for setting auto insurance rates)
and Zachs v. Dept. of Public Utilities, 406
Mass. 217, 221-23, 547 N.E.2d 28, 30-31
(1989)(finding that increased competition in
phone paging market would benefit public).
C. Prior Decisions as Evidence
Relevant testimony given at a prior court or
agency proceeding may be admitted and given
weight if the testimony contains some "indicia
of reliability and probative value." Embers of
Salisbury, 401 Mass. at 530, 517 N.E.2d at 832;
See also Dolphino Corp., 29 Mass. App. Ct. at
955, 559 N.E.2d at 1262. Sufficient indicia of
reliability are present when the testimony was
given in open court, under oath, and subject to
cross-examination (even if not by the same party
as in the current proceeding). Embers of
Salisbury, 401 Mass. at 530, 517 N.E.2d at
832-33. That a prior proceeding on the same
matter was not preclusive is no reason to deny
admission of testimony from that proceeding.
Rather, the agency ought to review the decision
and "accord it the weight that seems
appropriate." City of Boston v. MCAD, 39 Mass.
App. Ct. at 239, 654 N.E.2d at 947 (MCAD should
at least have reviewed arbitrator's decision
before deciding whether to admit it).
IV. CONCLUSION
While administrative agencies operate under
broad standards of admissibility, there are
nonetheless rules that apply both to admission
of evidence and its use by an agency, which, as
discussed in this article, range from
requirements that hearsay and expert testimony
have a foundation to rules governing the
potential preclusive effects of prior decisions
on agency proceedings. Still, when all is said
and done, hearsay, expert testimony, and prior
proceedings evidence can be admitted in agency
hearings that would not be admissible in court
actions. Administrative law judges must keep
this in mind when preparing their decisions
because, as discussed above, evidence that may
be admissible in an administrative hearing is
not necessarily substantial evidence that would
support a decision on appeal.
Acknowledgment
ALJ James Rooney prepared an earlier version
of this article in connection with a 1996
training program for administrative law judges
conducted by the Flaschner Judicial Institute
(Boston, Massachusetts). The author wishes to
thank Flaschner Judicial Institute Director
Robert Brink, Massachusetts Superior Court Judge
Mark S. Coven, and Massachusetts Department of
Environmental Protection ALJs Mark Silverstein
and Edna Travis for their invaluable assistance.
Footnotes
1/ Some agencies operate
under stricter evidentiary standards. For
example, the Taft-Hartley Act of 1947 requires
the National Labor Relations Board to conduct
hearings "so far as practicable ... in
accordance with the rules of evidence applicable
in the district courts" in nonjury cases. 29
U.S.C. 160(b).
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2/ Hearsay may still be
excluded on other grounds, for example if it is
irrelevant or cumulative. See Cherubino v. Board
of Registration of Chiropractors, 403 Mass. 350,
359, 530 N.E.2d 151, 157 (1988)(transcript of
chiropractor's notes excluded when the notes
themselves were in evidence).
[return to text]
3/ While it is not always
practical (or economical) to have a hearsay
declarant testify, an agency should, in light of
Perales, proceed with caution when considering a
request to subpoena a hearsay declarant. See
Demenech v. HHS, 913 F.2d 882 (11th Cir.
1990)(ALJ abused his discretion by refusing to
subpoena the author of a medical report and then
making findings based heavily on that report).
[return to text]
4/ At the hearing, Merisme
introduced a written statement from another
person purporting to be an eyewitness who
maintained that she saw the other car, not
Merisme's, run a red light. The hearing officer
did not credit this testimony because the second
witness was an acquaintance of Merisme and was
not mentioned in the police report. 27 Mass.
App. Ct. at 472, 539 N.E.2d at 1053. The Appeals
Court disclaimed reliance on this testimony,
noting that credibility calls were for the Board
to make. Id. at 472-73, 539 N.E.2d at 1053-54.
However, it also made a point of stating that
this was not a case like Murphy in which the
hearsay testimony relied upon by an agency was
uncontradicted on the record. Id. at 475, 539
N.E.2d at 1055.
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5/ See also Martin-Mendoza
v. Immigration and Naturalization Serv., 499
F.2d 918, 921 (9th Cir. 1974)(sworn statement of
alien who fled prior to Martin-Mendoza's
deportation hearing was probably admissible
under proposed FRE 804(a)(5) and (b)(4)), and
Fire Com'r of Boston v. Joseph, 23 Mass. App.
Ct. 76, 82, 498 N.E.2d 1368, 1372
(1986)(admissions).
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6/ Of course, if the
existence of the hearsay is the significant
factor, rather than the truth of the matter
asserted, then all that need be shown is such
existence. For example, the IRS was justified in
terminating an agent based on newspaper reports
that he killed his mistress because the news
reports identified the shooter as an IRS agent
and thus brought discredit on the IRS. Wathen v.
United States, 527 F.2d 1191, 1199 (Ct. Cl.
1975). Judge Nichols, concurring in the result,
observed, "I cannot help asking how a taxpayer
would like having Mr. Wathen call on him to
audit his tax returns." 527 F.2d at 1208.
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7/ Administrative agencies
also may consider technical evidence of a kind
that a court would find inconclusive. See City
of Boston v. MCAD, 39 Mass. App. Ct. 234, 243,
654 N.E.2d 944, 950 (1995)(The Appeals Court
commented that in ruling on a black corrections
officer's claim that he had been fired on
account of his race, the MCAD "considered
statistics that during 1987, eighteen of
twenty-one correction officers who were fired
were black. In the absence of any consideration
for the reasons underlying those discharges, the
figures are not very instructive. The
statistical evidence may be inconclusive but an
administrative agency has a broader scope than a
court concerning the evidence it will receive").
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8/ The authors of one
treatise are of the opinion that in agency
proceedings:
questions of competency are not to serve as
the guide in determining admissibility. The
factor to be considered with regard to any
evidence, including opinion testimony, is
the weight to be accorded it.
4 Jacob Stein, Glenn Mitchell and Basil Mezines,
Administrative Law 28.01 at 28-5 (1996); See Opp
Cotton Mills v. Adm'r of Wage & Hour Div. of
Dep't of Labor, 312 U.S. 126, 155 (1941) and
Town of Sudbury v. Department of Public
Utilities, 351 Mass. 214, 223, 218 N.E.2d 415,
422 (1966).
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9/ There need not be an
exact match between the expert's field and the
area of proposed testimony. See Herridge v.
Board of Registration, 420 Mass. 154, 165 n. 11,
648 N.E.2d 745, 751 n. 11 (1995)("Dr. Beck [a
psychiatrist] did not have to be engaged in the
practice of psychopharmacology [like Dr.
Herridge] to testify on ethical constraints
applicable to the field of psychiatry as a
whole").
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10/ See also Matter of
Douglas Abdelnour, Docket No. 88-138, Decision
and Order on Applicants' Motions to Strike
Petitioners' Prefiled Testimony, 10 MELR 1187
(Dept. of Environmental Protection, June 19,
1992)(expert testimony of "marine consultant,"
"a new area of expertise," stricken as
unhelpful).
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11/ If the case turns on
"conflicting and irreconcilable" expert
testimony, and the ALJ who heard the case is not
available to write the decision, that testimony
(at least) must be reheard because when
"significant issues of credibility must be
resolved by the factfinder, those issues may not
be resolved by merely reviewing a transcript of
the testimony, or even a tape recording of the
proceeding." Town of Southbridge Zoning Board of
Appeals v. Housing Appeals Comm., Civil Action
No. 94-650, Memorandum of Decision at 2
(Worcester Superior Court, Spina, J.)(August 18,
1995).
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12/ See Matter of Richard
Levine, Docket No. 93-028, Partial Summary
Decision, 3 DEPR 71 (Dept. of Environmental
Protection, April 23, 1996)(findings in District
Court action precluded petitioner from
relitigating before the DEP a number of factual
issues, such as the distance of his proposed
septic system from the top of a coastal bank).
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13/ See also, Restatement
(Second) of Judgments 83(2)(a)(prior proceeding
must have provided a "right on behalf of a party
to present evidence and legal argument in
support of the parties contentions and fair
opportunity to rebut evidence and argument by
opposing parties").
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14/ Mutuality of parties
is not always essential. A party may be
precluded from relitigating an issue of law or
fact with a person not a party to the first
action, unless the party "lacked full and fair
opportunity to litigate the issue in the first
action or other circumstances justify affording
him an opportunity to relitigate the issue."
Restatement (Second) of Judgments 29.
Collateral estoppel may be used offensively
as well as defensively. See Medical Malpractice
Joint Underwriting Assoc. of Mass. v. Kenney
Ins. Agency, Civil Action No. 91-6448-B,
Memorandum of Decision and Order on Plaintiff's
Motion for Summary Judgment (Suffolk Superior
Court, Botsford, J.)(September 25, 1992)(Joint
Underwriters Association obtained summary
judgment against insurance agency for unpaid
premiums based on the prior revocation of the
agency's license by the Division of Insurance
for failure to remit these same premiums).
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15/ The operative language
governing agency jurisdiction may also factor
into the collateral estoppel equation. See,
e.g., Pacific Seafarers v. Pacific Far East
Line, 404 F.2d 804 (D.C. Cir. 1969)(prior
determination by Maritime Commission that
defendants were not engaged in "foreign
commerce" under the Shipping Act did not bar
plaintiffs from pursuing claim that defendants
were acting in restraint of "foreign commerce"
under the Sherman Act because "foreign commerce"
is more narrowly defined under the former act).
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