Evidence and Witnesses

Parties to a hearing are entitled to a due process right to summon witnesses for adducing evidence in the adjudicative process.  However, this is not an absolute or independent right to subpoena any number of witnesses.  Thus, reasonable limitations may be placed on the number and scope of witnesses who may be compelled to testify at an administrative hearing.

The criterion for granting the request for summoning a witness is the indispensability of the testimony of such witness.  Thus, an administrative agency may not arbitrarily deny such a request.  In order to prove due process violation, the party must show that the witnesses’ testimony would add something to the information in the record[i].

In normal course, an agency official who performs adjudicatory functions is incompetent to testify in a proceeding.  However, if the testimony of such officer is indispensable due to some unique knowledge of the matter subjected to adjudication, such an officer may be subpoenaed to give evidence[ii]. An administrative agency has no inherent authority to issue subpoenas but such agency may be given the statutory authority to do so[iii].

The presiding officer at an administrative proceeding shall comply with the rules of civil procedure while issuing subpoenas[iv]. The Federal Administrative Procedure Act, however, provides that agency subpoenas may be issued as authorized by law[v]. An administrative agency has the right to establish procedures for compelling testimony and in the event of an allegation of abuse of discretion, the court examines an administrative agency’s exercise of its discretion to resort to the power of the district court when a subpoena is disobeyed under an abuse of discretion standard.  “An abuse of discretion involves a clearly untenable ruling which deprives a litigant of a substantial right and denies a just result in a matter submitted for decision”[vi].

Generally, the power to issue a subpoena must be expressly conferred by statute and, in the absence of a specific grant of authority, an administrative agency or official has no power to issue a subpoena.  Moreover, subpoena power not expressly conferred on an administrative agency or official will not be implied unless it is essential to the fulfillment of the objectives of a statute[vii].

Courts have held that procedural due process is not a technical conception, but a flexible notion intertwined with several factors like time, place, capacities and circumstances of those who are to be heard[viii]. The United States Supreme Court has identified three distinct factors of procedural due process.  Accordingly, the private interest that will be affected by the official action, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedural requirement would entail are considered to be essential aspects of procedural due process[ix].

[i] Bender v. DMV, 8 Neb. App. 290 (Neb. Ct. App. 1999)

[ii] Saunders County v. Metro. Utils. District-A, 11 Neb. App. 138 (Neb. Ct. App. 2002)

[iii] Division of Employment Sec. v. Ferger, 781 S.W.2d 568 (Mo. Ct. App. E.D. 1989)

[iv] Model State Administrative Procedure Act (1981) § 4-210(a)

[v] 5 U.S.C.A. §§ 555(d), 556(c)(2)

[vi] Bender, 8 Neb. App. 290

[vii] Vance v. Ananich, 145 Mich. App. 833 (1985)

[viii] Foxy Lady, Inc. v. City of Atlanta, 347 F.3d 1232, 1236 (11th Cir. Ga. 2003)

[ix] Id.


Inside Evidence and Witnesses