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Admissibility of Hearsay

Hearsay evidence is admissible in an administrative proceeding, provided it is relevant and material.[i]  The use of hearsay evidence alone does not violate due process principles as long as the hearsay is sufficiently reliable and trustworthy, and as long as the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs.  Moreover, hearsay can constitute substantial evidence to support an administrative agency’s decision in cases where the hearsay is admitted under the provisions of the Administrative Procedure Act (APA) or other statutory language equivalent to the APA.[ii]

The classic exception to strict rules of evidence in the administrative context concerns hearsay evidence.  There is no administrative rule of automatic exclusion for hearsay evidence.  The only limit to the admissibility of hearsay evidence is that it bears satisfactory indicia of reliability.  The test of admissibility is requiring that the hearsay be probative and its use fundamentally fair.[iii]

The Model State Administrative Procedure Act (1981) § 4-212(a) provides that evidence may not be excluded solely because it is hearsay.  Hearsay evidence, properly objected to, is not competent evidence to support a finding.  Hearsay evidence, admitted without objection, will be given its natural probative effect.  It may support a finding if it is corroborated by any competent evidence in the record.  However, a finding of fact based solely on hearsay will not stand.[iv]


[i] Myers v. Secretary of Health & Human Services, 893 F.2d 840 (6th Cir. Ky. 1990)

[ii] Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13 (Colo. 1989)

[iii] Calhoun v. Bailar, 626 F.2d 145 (9th Cir. Cal. 1980)

[iv] Calcara v. Workers’ Compensation Appeal Bd. (St. Joseph Hosp.), 706 A.2d 1286 (Pa. Commw. Ct. 1998)

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