Cross Examination in Adjudicative Hearings

The Federal Administrative Procedure Act provides that a party is entitled to conduct such cross- examination as may be required for a full and true disclosure of the facts.[i] However, the Act mandates only such cross-examination as may be required for a full and true disclosure of the facts.  In Central Freight Lines, Inc. v. United States, 669 F.2d 1063 (5th Cir. 1982), the court held that in administrative cases cross-examination is not an absolute right.

In Cathedral Park Condo. Comm. v. District of Columbia Zoning Comm’n, 743 A.2d 1231, 1250 (D.C. 2000), the court held that the agency, like a trial court, should permit cross examination to explore any matters which tend to contradict, modify, or explain testimony given on direct examination.  Matters beyond the scope of direct examination are properly left to the opposing party’s case-in-chief.

The right to cross-examine witnesses under oath is a fundamental right, and cannot be denied.[ii] However, in Keesling v. Baker & Daniels, 571 N.E.2d 562 (Ind. Ct. App. 1991), the court held that the right to effectively cross-examine witnesses can be waived.

Similarly, hearsay evidence may support an administrative decision if it is sufficiently reliable and trustworthy.  A party opposing an offer of hearsay evidence in an administrative proceeding is entitled to an opportunity to cross-examine the declarant.[iii]

An agency has broad discretion in regulating the nature, scope and duration of cross-examination.[iv] In Fee Plan, Inc. v. Department of Environmental Conservation, 118 A.D.2d 855, 855-856 (N.Y. App. Div. 2d Dep’t 1986), the court held that an administrative law judge has the power to limit the cross-examination of witnesses to avoid irrelevant or unduly repetitious evidence.

[i] 5 USCS § 556

[ii] Archem, Inc. v. Simo, 549 N.E.2d 1054 (Ind. Ct. App. 1990)

[iii] Stalcup v. Job Serv. N.D., 1999 ND 67 (N.D. 1999)

[iv] Cathedral Park Condo. Comm. v. District of Columbia Zoning Comm’n, 743 A.2d 1231, 1250 (D.C. 2000)


Inside Cross Examination in Adjudicative Hearings