The Hearsay Rule in Administrative Proceedings
As a general rule, administrative proceedings “need not be conducted according to technical rules of evidence.” Still, common sense rules of evidence apply. For example, evidence must be relevant meaning it has a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Ev. C. §210.)
Hearsay rules are treated different in administrative proceedings and is not automatically excluded. Hearsay is an out of court statement being offered for its truth. (Ev.C. §1200.) Hearsay evidence in administrative adjudicatory proceedings is referred to as “administrative hearsay.” Administrative hearsay is admissible for the limited purpose to supplement or explain other evidence, but not by itself sufficient to support a finding unless a hearsay exception applies.
For example, a driver’s accident report filed with the DMV under the Financial Responsibility Law was hearsay and thus could not support the DMV’s license suspension sanction against another driver. (Daniels v. Department of Motor Vehicles (1983) 33 C3d 532, 538-541.) Similarly a videotape showing employee misconduct that was not authenticated could not support a board’s findings of misconduct warranting the employee’s termination. (Ashford v. Culver City Unified School Dist. (2005) 130 CA4th 344, 349-350.)
A party seeking to preclude a ruling based entirely on administrative hearsay must make a timely objection at the agency level that the agency failed to introduce any evidence in support of its position other than hearsay that would be admissible over objection in a civil action. [Gov.C. §11513(d).] Failure to do may constitute a waiver.
Robin Perry, Esq. litigates cases before various administrative agency in California. Mr. Perry is a former President of the Long Beach Civil Service Commission where he acted as presiding officer at disciplinary hearings.
Attorney Robin D. Perry has been part of the Long Beach Community for over 25 years handling business litigation, employment litigation and advising, criminal defense, personal injury and code enforcement defense for businesses.
