Cross-Examination of Adverse Witnesses/Declarants

by Gene Doyle, LMSW

A December 15, 1992 memorandum was issued to ALJs by Acting Deputy Counsel for Fair Hearings Russell J. Hanks as part of the Stipulation and Order of Settlement and Discontinuance in Chatfield v Bane, 91-CV-6310T (W.D.N.Y. August 5, 1992). This memorandum provided ALJs with instructions for meeting their responsibilities under 45 CFR § 205.10(a)(13)(vi), 7 CFR § 273.15(p)(5), and 42 CFR § 431.242(a), which "provide that the appellant, or the appellant's representative, shall have adequate opportunity to:

"'. . . question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses.'"

ALJs were directed to look for guidance at the decisions issued in Ortiz v Eichler, 616 F.Supp. 1046, 1061 (D.Del. 1985), mot. for reargument granted 616 F.Supp. 1066 (D.Del. 1985), affd. 794 F.2d 889 (3d Cir. 1986), which, Mr. Hanks explained,

"specifically address the opportunity to confront and cross-examine an adverse witness when the witness' statement is submitted at the hearing (in the form of a document or testimony from another witness) and the declarant is not present."

     "If a pro se appellant or an appellant represented by someone other than an attorney or law firm expresses an interest in questioning the declarant, the ALJ should determine the relevance of the statement offered into evidence in relation to the issues under review. If not relevant, no action to secure the declarant's presence is necessary. If the statement is relevant, and not otherwise admissible, the ALJ must seek the presence of the declarant, either through agency cooperation or subpoena, or exclude the statement.

     "If appellant's counsel is interested in an opportunity to confront and cross-examine the declarant, counsel should be reminded of her/his power to subpoena the witness. An adjournment should be offered in order to afford counsel that opportunity."

See "Subpoena Issuance by ALJs."

A June 26, 2009 memorandum was issued to ALJs by Supervising ALJ Jim Ryan in accordance with the Stipulation of Settlement and Order of Discontinuance in Merced v. Albany County Department of Social Services et al., 07-CV-1348 (N.D.N.Y. June 19, 2009).

Attached to this June 26, 2009 memorandum was the December 15, 1992 memorandum that had been issued to ALJs in accordance with the settlement of Chatfield v Bane, 91-CV-6310T (W.D.N.Y. August 5, 1992). The June 26, 2009 memorandum reiterated that the December 15, 1992 Chatfield memorandum

"provides instructions to the Hearing Officers about the requirements in federal regulations to provide the Appellant, or their representative, an adequate opportunity to question or refute any testimony or evidence and to confront and cross-examine adverse witnesses. Specifically, the transmittal discusses the situation where an adverse witness’ statement is submitted in the form of a document or testimony from another witness and the individual is not present at the hearing for purposes of cross-examination."

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