In this article, I will discuss three types of evidence--hearsay, expert testimony, and findings of prior proceedings--and the peculiarities of their treatment in the administrative context. As shall be seen, when evidentiary issues arise in administrative hearings, the focus is not so much on whether certain evidence is admissible (as it would be in a jury trial), but rather on what to do with the evidence once admitted.

Federal and Massachusetts standards on the admission of evidence in administrative hearings both allow admission of evidence without reference to formal evidentiary rules. The federal Administrative Procedure Act provides that:

Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of immaterial, or unduly repetitious evidence.

Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. M.G.L. c. 30A, 11(2).

II. HEARSAY

As a result of these broad standards of admissibility, hearsay is admissible in federal and state administrative hearings. McKee v. United States, 500 F.2d 525, 528 (Ct. Cl. 1974); Town of Brookline v. Commissioner of DEQE, 387 Mass. 372, 389, 439 N.E.2d 792, 805 (1982).2 But can an administrative law judge rely on hearsay alone in reaching a decision?

A. Can an ALJ rely on Hearsay Alone?

The answer at one time was no. In 1916, the New York Court of Appeals held that while an agency was free to accept what evidence it chose, "still in the end there must be a residuum of legal evidence to support" the decision. Carroll v. Knickerbocker, 218 N.Y. 435, 440 (1916). Twenty-two years later, the U.S. Supreme Court adopted a variant of this "residuum rule," when it declared that administrative decisions must have "a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 230 (1938).

Richardson v. Perales, 402 U.S. 389 (1971), substantially altered this picture. In Perales, the Supreme Court held that a Social Security examiner could credit medical reports of doctors presented on behalf of the agency over the live testimony of a doctor who testified on behalf of a disability claimant. The Court concluded that the medical reports, though uncorroborated hearsay, were reliable because the declarants had no evident bias, because their reports were available prior to the hearing and were essentially consistent with one another, and because written medical reports have a certain inherent reliability. The Court noted that claimant's.3

Massachusetts has likewise accepted that hearsay alone can constitute substantial evidence. Murphy v. Superintendent, Mass. Correctional, 396 Mass. 830, 834, 489 N.E.2d 661, 663 (1986). In Murphy, inmates challenged a ruling of a prison disciplinary board that had taken away "good time" credits based entirely on informants' statements to a corrections officer that the inmates had killed another prisoner. The Supreme Judicial Court found the evidence substantial because the corrections officer was able to state some basis for believing the informants were reliable. Id.; see also Embers of Salisbury, Inc. v A.B.C.C., 401 Mass. 526, 530, 517 N.E.2d 830, 832 (1988)(declarant's motive to lie went to the weight to be given her testimony, not to its admissibility).

Despite the formal elimination of the residuum rule, there remains an undercurrent of suspicion of agency reliance solely on hearsay testimony, particularly uncorroborated hearsay. For example, in Merisme v. Board of Appeals on Motor Vehicles, 29 Mass. App. Ct. 296, 559 N.E.2d 1263 (1990), the Appeals Court vacated a decision of the Board of Appeals on Motor Vehicle Liability Policies and Bonds to uphold a surcharge on Merisme's auto insurance policy based on an accident report by an officer who interviewed a witness who claimed he saw Merisme drive through a red light. 27 Mass. App. Ct. at 471-72, 539 N.E.2d at 1053.4 The Appeals Court acknowledged that such a totem pole hearsay was admissible in an agency proceeding, but nevertheless concluded that in the absence of proof that the eyewitness statement contained in the police report was reliable, the Board lacked "substantial evidence" for its decision as required by M.G.L. c. 30A, 14(7)(e). Id. at 475-76, 539 N.E.2d at 1055.

B. What Hearsay is Reliable?

Are there any rules to guide an agency in deciding whether it can rely on particular hearsay testimony? While the reliability of hearsay is largely a case-by-case determination, there are some guideposts:

1. Foundation

Hearsay documentary evidence must still have a foundation. See 5 U.S.C 556(d)(must show that "real evidence is what it purports to be"). This can be established easily if the evidence would otherwise be admissible under the rules of evidence. See, e.g., Woolsey v. National Transp. Safety Board, 993 F.2d 516, 530 (5th Cir. 1993)(articles and self-promoting advertisements in a weekly magazine were self-authenticating under FRE 902).5 Other testimony sufficient to establish the accuracy of the document is equally permissible. See Anderson v. Dept. of Transportation, FAA, 827 F.2d 1564 (Fed. Cir. 1987)(air traffic controller logs were altered during course of strike, and thus would not have been admissible as "business records," but were nevertheless admitted when FAA officials testified and explained the discrepancies).

On the other hand, documents that lack an adequate foundation have little probative value even if they are admitted into evidence. Thus, for example, photographs that do not clearly show what they purport to show have little value, particularly when no testimony is offered to verify their accuracy. See McKee v. United States, 500 F.2d 525, 528 (Ct. Cl. 1974). Evidence from anonymous sources is also disfavored because "[u]se of [anonymous reports] raises questions of fundamental fairness and seriously affects the integrity of the administrative hearing". McLees v. Sullivan, 879 F.2d 451, 454 (8th Cir. 1989).6

2. Substantive Statute Focuses on Hearsay

If an applicable statute or regulation focuses on factors amenable to proof through hearsay, then hearsay evidence is more likely to be found reliable. For example, because the Department of Environmental Protection operates under regulations that define air pollution as air contamination that causes a nuisance or "unreasonably interfere[s] with the comfortable enjoyment of life and property or the conduct of business" (310 CMR 7.00), it could order a composting facility shut down based on reports of odors emanating from the facility. Town of Shrewsbury v. Commissioner of the Dept. of Environmental Protection, 38 Mass. App. Ct. 946, 648 N.E.2d 1287 (1995)(these reports coincided with the times when the facility was in operation and were confirmed by DEP inspectors who also smelled the odors).

On the other hand, a statutory scheme may preclude reliance on certain hearsay. Thus, if an agency is required to provide a de novo hearing, it may not give evidentiary weight to the findings of the tribunal whose decision was appealed, but instead must hear the evidence afresh. Dolphino Corp. v. ABCC, 29 Mass. App. Ct. 954, 955, 559 N.E.2d 1261, 1263 (1990).

3. Weight of the Evidence

An administrative law judge must consider all the relevant evidence admitted when deciding whether to rely on particular hearsay testimony. See Brown v. Rock Creek Min. Co., Inc., 996 F.2d 812, 816 (6th Cir. 1993). Similarly, reviewing courts must consider the entire record, including any portions that detract from an agency's decision, when deciding whether the agency acted properly in relying on hearsay evidence. Edward E. v. Dept. of Social Services, 42 Mass. App. Ct. 478, 480-81, 678 N.E.2d 163, 165 (1997).

When a court has concluded that an agency could properly rely on the hearsay testimony admitted, the opposing party generally failed to put on compelling contrary evidence (or any contrary evidence at all). Thus, the Merit Systems Protection Board was justified in upholding the dismissal of a postal worker for sale of cocaine to an informant based on police reports of the sale that were contradicted only by the clerk's unsworn denial in which he failed to explain why he met the informant in a parking lot or how the informant came to acquire cocaine after visiting the clerk at his house. Sanders v. U.S. Postal Service, 801 F.2d 1328 (Fed. Cir. 1986).

In contrast, when a court has decided that hearsay testimony an agency relied on was not substantial, the hearsay was generally contradicted by other evidence that, more often than not, would have been admissible under normal evidentiary rules. For example, the Supreme Judicial Court reversed a decision of the Division of Employment Security to deny unemployment benefits to a hospital worker who was fired for leaving his work area when he had been told not to when the only evidence that the employee was told came from his supervisor's personal assistant, though she had not seen him that day. The Court ruled that the hearsay evidence of the assistant was not substantial because it was uncorroborated and was contradicted by the testimony of the supervisor, who testified only that the former employee had left without asking permission. Goodridge v. Director of Divis. of Employment, 375 Mass. 434, 377 N.E.2d 927 (1978).

Hearsay can in some instances corroborate other hearsay. Along these lines, HEW's decision to deny federal aid to the Broward County School Board because it had sold school property to a number of private schools that discriminate based on race was adequately supported by (1) a questionnaire completed by a public school teacher, after visiting one of the private schools, in which she reported that the school "will not accept black" students, (2) the statement of a member of a panel set up to review the school board's federal aid request that the principal of another one of the schools had told her the school did not accept black students, and (3) a card obtained from a receptionist at a third school that had printed on it "the policy of the school is one of non-integration." School Board of Broward Cty., Fla. v. H.E.W., 525 F.2d 900 (5th Cir. 1976).

To be successful, challenges to hearsay evidence must focus on the matter the hearsay is meant to prove. In the previously mentioned Anderson case, air traffic controllers argued that logs used to justify dismissals were inaccurate because they failed to take into account vacations and leaves, but the Federal Circuit rejected these attacks as simply broadsides that did not question the accuracy of the logs as they related to individual controllers who had been fired. 827 F.2d 1565 (Fed. Cir. 1987).

Finally, as the stakes rise, reviewing courts will likely require more evidence of reliability before determining that hearsay evidence is substantial. Thus, when a matter as significant as placing a father's name on a sex offender registry came before the Appeals Court in Edward E., the Court declined to conclude that a child's disclosures to three different individuals that her father touched her private parts constituted substantial evidence because the child's statements lacked specificity and there was no corroborating evidence. 42 Mass. App. Ct. at 486, 678 N.E.2d at 168.

III. EXPERT TESTIMONY

The broad standards of admissibility that allow administrative agencies to admit hearsay testimony also allow agencies to consider opinion testimony from lay and expert witnesses without being bound by the evidentiary rules that limit the admissibility of such testimony in court.7 Brockton Taunton Gas Co. v. Securities and Exchange Com'n, 396 F.2d 717, 721 (1st Cir. 1968). This means that, as a practical matter, agencies have greater discretion to allow than to exclude proposed expert testimony.8 Still, "[a]n administrative agency has some discretion to admit [or exclude] expert testimony so long as it does not act arbitrarily." Pagel, Inc. v. S.E.C., 803 F.2d 942, 947 (8th Cir. 1986). Hence, an agency need not accept testimony from every expert proffered. See, e.g., Foxboro Associates v. Board of Assessors of Foxborough, 385 Mass. 679, 690, 433 N.E.2d 890, 897 (1982)(qualification of an expert is a question of fact for agency to determine).

A. Agency Discretion to Exclude or Strike Expert Testimony

An agency may exclude expert testimony that is irrelevant. See Yaffe Iron & Metal Co., Inc. v. U.S. E.P.A., 774 F.2d 1008, 1016-17 (10th Cir. 1985); Alabama Ass'n of Ins. A. v. Bd. of Gov. of F.R. System, 533 F.2d 224, 253-54 (5th Cir. 1976)(no prejudice found in exclusion of testimony on credit life and health insurance as these differed in significant ways from the types of insurance at issue). An agency may also exclude proposed testimony that is not within the witness's area of expertise. See Yaffe, 774 F.2d at 1016 (no error in excluding testimony from witness concerning PCB volatility when his area of expertise was primarily air and water quality). 9

Moreover, an agency may strike expert testimony if it lacks "any probative value," i.e., when it is not based on a legally competent foundation. Board of Assessors v. Ogden Suffolk Downs, 398 Mass. 604, 606-07, 499 N.E.2d 1200, 1202-03 (1986)(testimony on the depreciated reproduction cost of improvements to Suffolk Downs stricken for failure of expert to consider $1.6 million in improvements to the property). Finally, since the purpose of expert testimony is to assist the factfinder (usually by drawing inferences from facts in a manner beyond ordinary knowledge), an agency may strike otherwise competent expert testimony if it is not helpful. See, e.g., Board of Assessors of Andover v. Innes, 396 Mass. 564, 565-66, 487 N.E.2d 512, 513 (1986)(appraisal testimony stricken following direct examination when witness failed to testify to any personal knowledge of the subject property and did not state his opinion of its value in response to a suitable hypothetical question).10

B. Role of Agency Expertise

In determining the necessity of particular expert testimony, an agency may take its own expertise into account. Pagel, 803 F.2d at 947 (ALJ who was "highly sophisticated in securities matters" excluded testimony regarding industry practice of securities traders). An agency must use caution if it intends to rely on its own expertise, however, for it "may not sit as a silent witness where expert testimony is required to establish an evidentiary basis for its conclusions." Langlitz v. Board of Registration of Chiropractors, 396 Mass. 374, 381, 486 N.E.2d 48, 53 (1985). If "there is sufficient evidence in the record upon which ... [ an agency] can apply its expertise, the ... [agency] may evaluate the facts without the assistance of an expert witness," but "it must put in the record the basis for its expertise." D'Amour v. Bd. of Reg. in Dentistry, 409 Mass. 572, 585, 567 N.E.2d 1226, 1233 (1991).

C. Non-Expert Opinion Testimony

While opinion testimony of non-expert witnesses is admissible, an agency need give it no more credit than it deserves. See Cream Wipt Food Prod. Co. v. Federal Security Admin., 187 F.2d 789, 791 (3d Cir. 1951)(testimony of government chemist that public would be misled by a particular salad dressing label was insufficient evidence to support agency order since chemist had no expertise in consumer reactions). Nevertheless, such testimony must be taken into account when the governing statute so requires. See Lund v. Weinberger, 520 F.2d 782 (8th Cir. 1975)(Social Security disability claimant's unrebutted testimony that accident caused headaches that limited his ability to work was sufficient to establish impairment).

Furthermore, an agency may, when the evidence warrants it, rely upon lay testimony over expert testimony. See Avondale Industries v. Director, OWCP, 977 F.2d 186 (5th Cir. 1992)(when issue was identity of last employer to expose claimant to noise that injured his hearing, administrative law judge could properly credit claimant's testimony that the workplace of his employer subsequent to Avondale was "just like around town, standing on a corner" against expert's testimony based on a hypothetical that exaggerated claimant's contacts with noisy equipment); Shrewsbury, 38 Mass. App. Ct. at 947-48, 648 N.E.2d at 1288-89 (ALJ could credit reports of odor coming from composting facility and discount engineering report on air quality when there was no showing that the procedures used to collect air samples were accurate, and the modeling technique had proven inaccurate on several occasions).

D. Conflicting Expert Testimony

When expert testimony is conflicting, an administrative law judge's decision to credit certain testimony must be based on substantial evidence. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994). Numerous efforts have been made to come up with rules to assist administrative law judges in evaluating conflicting expert testimony.11 See, e.g., New England Tel. & Tel. v. Board of Assessors, 392 Mass. 865, 873, 468 N.E. 2d 263, 268 (1984)(testimony of expert witness, whose fee is contingent on success, may not be totally disregarded simply because of the fee arrangement). These rules, however, are not entirely consistent. Compare Brown v. Rock Creek Min. Co., Inc., 996 F.2d 812, 816 (6th Cir. 1993)(treating physicians' opinions entitled to greater weight than non-treating physicians) and Paul v. Shalala, 29 F.3d at 211 ("opinion of a specialist generally is accorded greater weight than that of a non-specialist"). For a further discussion, see 4 Stein, Administrative Law at 28.02.

IV. PRIOR PROCEEDINGS

When considering whether the result of a prior administrative or court proceeding is admissible in an administrative hearing, the first question that must be addressed is whether that prior result is preclusive in some fashion or whether it now is simply evidence admissible in the present proceeding under the broad standards of admissibility applicable in administrative hearings. I will consider two standard preclusions first (res judicata and collateral estoppel), then move on to some features concerning the use of prior decisions of the same agency, and finally I will address the use of prior proceedings as evidence.

A. Preclusion

The "principles of claim preclusion [res judicata] and issue preclusion [collateral estoppel] ... apply both to administrative boards and to courts." Lopes v. Board of Appeals of Fairhaven, 27 Mass. App. Ct. 754, 755, 543 N.E.2d 421, 422 (1989); see Restatement (Second) of Judgments 83 (1982). These principles apply whether it is an agency considering the preclusive effect of either a prior court or agency proceeding or a court considering the preclusive effect of a prior agency proceeding.12 Needless to say, there are some peculiarities to the application of res judicata and collateral estoppel in administrative practice.

1. Res Judicata

The doctrine of res judicata bars relitigation of legal claims that were (or could have been) determined in an earlier action. Restatement (Second) of Judgments 17-19 and 24. Administrative decisions are res judicata when an agency acts after a trial type hearing. See United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22 (1966). However, the application of res judicata before an administrative agency may be limited by statute. See Alexander v. Garner-Denver Co., 415 U.S. 36, 54 (1974)(an arbitrator's decision under collective bargaining agreement is not given preclusive effect in a later statutory discrimination action before a court or specialized administrative agency).

Two issues arise in the application of res judicata to agency decisions: is the claim the same and was the agency's action an adjudication? Both are illustrated in Purter v. Heckler, 771 F.2d 682 (3d Cir. 1985). Purter applied for disability benefits based on alcoholism, after having been twice denied benefits on other bases (though the record of the prior proceedings did include evidence of excessive drinking). The Third Circuit declined to apply res judicata to bar Purter's most recent claim both because it was sufficiently different, as it was now based specifically on alcoholism, and because the benefit denials in the prior proceedings did not need to be considered a final adjudication, as Purter was not represented by counsel and the agency could under its rules reconsider those decisions if equity warranted it. 771 F.2d at 691-95.13

The federal government must, in general, give "full faith and credit" to state agency final decisions. 28 U.S.C. 1738. Congress can, however create exceptions to this principle. See, e.g., Univ. of Tennessee v. Elliott, 478 U.S. 788 (1986)(state ALJ's decision rejecting claim of black employee that he was discharged on account of his race did not bar him from maintaining suit in federal court under Title VII, as Congress had intended a trial de novo, but it did bar him from pursuing a 1983 action).

2. Collateral Estoppel

"When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366, 372, 479 N.E.2d 1386, 1390 (1985), quoting Restatement (Second) of Judgments 27.14 "Courts routinely apply collateral estoppel to issues resolved by agencies," according to Professor Kenneth Culp Davis, but he adds some caveats regarding the nature of the agency making the determination. Thus:

A decision by an agency primarily qualified to determine a question is binding on another agency, but [not vice-versa. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940)(National Bituminous Coal Commission's decision that Sunshine was a producer of bituminous coal was binding on IRS when company resisted payment of tax as a bituminous coal producer).] .... More generally, when an agency that is specialized in an area incidentally resolves an issue in another area, its decision may be denied preclusive effect. .... City of Cleveland v. Cleveland Elec. I. Co., 734 F.2d 1157, 1164-1166 (6th Cir.). .... But a decision by a specialist agency on a nonspecialist question has preclusive effect if affirmed by a court. EZ Loader Boat Trailers v. Cox Trailers, 746 F.2d 375, 377-379 (7th Cir. 1984).

Specialization aside, the role an agency plays may impact on whether its findings are granted collateral estoppel effect. In Swineford v. Snyder County, 15 F.3d 1258 (3d Cir. 1994), the Third Circuit held that a ruling from the Pennsylvania Unemployment Compensation Review Board favoring a fired county employee did not preclude the county from defending against her 1983 civil rights action by claiming she was disruptive because unemployment compensation is designed to promote a policy dissimilar to the policies promoted by 1983. In contrast, because the Wetlands Protection Act provides the Department of Environmental Protection with the final say in imposing conditions on projects so as to promote the wetlands interests stated in the Act, the issuance of a wetlands permit by DEP mooted a parallel dispute over a denial of the project under a local wetlands bylaw, which adopted the language of the Act. DeGrace v. Conservation Com'n of Harwich, 31 Mass. App. Ct. 132, 575 N.E.2d 373 (1991).15

Collateral estoppel is available against the government, but only in limited circumstances. The government can be precluded from relitigating an issue of fact against the same party when it is acting in its capacity as sovereign. See Continental Can Co. v. Marshall, 603 F.2d 590 (7th Cir. 1979)(Continental Can entitled to injunction against pending citations for noise violations when company had already prevailed in identical litigation on the same issue at eight other plants). The government can also be precluded from relitigating an issue of law with the same party. United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The government may, however, relitigate a legal issue when the parties are different. United States v. Mendoza, 464 U.S. 154 (1984). There, the Supreme Court observed that:

[T]he Government is more likely than any private party to be involved in lawsuits against different parties which nonetheless involve the same legal issues. .... A rule allowing nonmutual collateral estoppel against the Government in such cases would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.

B. Prior Decisions of the Same Agency

While there is a need for "reasoned consistency" in agency decisions, prior decisions of an agency are not normally admissible to prove some fact in dispute, to shift a burden, or create a presumption. Ogden Suffolk Downs, 398 Mass. at 605-06, 499 N.E.2d at 1202 (upholding Tax Board's exclusion of a 1979 valuation of Suffolk Downs by the Board in a proceeding for 1980 - 1982 tax abatement). General consideration of an issue in a prior proceeding does not foreclose an agency from specifically considering it later. Sudbury, 351 Mass. at 223, 218 N.E.2d at 422 (issue of power line placement above or below ground touched on in earlier proceeding).

Agency decisions can serve as precedent when what was established was a policy rather than a finding of fact specific to a party. What constitutes a policy for this purpose can vary widely, so long as the prior case established some principle of general applicability. See Aetna Cas. & Sur. v. Com'r of Ins., 408 Mass. 363, 371-74, 558 N.E.2d 941, 946-48 (1990)(method for setting auto insurance rates) and Zachs v. Dept. of Public Utilities, 406 Mass. 217, 221-23, 547 N.E.2d 28, 30-31 (1989)(finding that increased competition in phone paging market would benefit public).

C. Prior Decisions as Evidence

Relevant testimony given at a prior court or agency proceeding may be admitted and given weight if the testimony contains some "indicia of reliability and probative value." Embers of Salisbury, 401 Mass. at 530, 517 N.E.2d at 832; See also Dolphino Corp., 29 Mass. App. Ct. at 955, 559 N.E.2d at 1262. Sufficient indicia of reliability are present when the testimony was given in open court, under oath, and subject to cross-examination (even if not by the same party as in the current proceeding). Embers of Salisbury, 401 Mass. at 530, 517 N.E.2d at 832-33. That a prior proceeding on the same matter was not preclusive is no reason to deny admission of testimony from that proceeding. Rather, the agency ought to review the decision and "accord it the weight that seems appropriate." City of Boston v. MCAD, 39 Mass. App. Ct. at 239, 654 N.E.2d at 947 (MCAD should at least have reviewed arbitrator's decision before deciding whether to admit it).

IV. CONCLUSION

While administrative agencies operate under broad standards of admissibility, there are nonetheless rules that apply both to admission of evidence and its use by an agency, which, as discussed in this article, range from requirements that hearsay and expert testimony have a foundation to rules governing the potential preclusive effects of prior decisions on agency proceedings. Still, when all is said and done, hearsay, expert testimony, and prior proceedings evidence can be admitted in agency hearings that would not be admissible in court actions. Administrative law judges must keep this in mind when preparing their decisions because, as discussed above, evidence that may be admissible in an administrative hearing is not necessarily substantial evidence that would support a decision on appeal.

Acknowledgment

ALJ James Rooney prepared an earlier version of this article in connection with a 1996 training program for administrative law judges conducted by the Flaschner Judicial Institute (Boston, Massachusetts). The author wishes to thank Flaschner Judicial Institute Director Robert Brink, Massachusetts Superior Court Judge Mark S. Coven, and Massachusetts Department of Environmental Protection ALJs Mark Silverstein and Edna Travis for their invaluable assistance.

Footnotes

1/ Some agencies operate under stricter evidentiary standards. For example, the Taft-Hartley Act of 1947 requires the National Labor Relations Board to conduct hearings "so far as practicable ... in accordance with the rules of evidence applicable in the district courts" in nonjury cases. 29 U.S.C. 160(b). [return to text]

2/ Hearsay may still be excluded on other grounds, for example if it is irrelevant or cumulative. See Cherubino v. Board of Registration of Chiropractors, 403 Mass. 350, 359, 530 N.E.2d 151, 157 (1988)(transcript of chiropractor's notes excluded when the notes themselves were in evidence). [return to text]

3/ While it is not always practical (or economical) to have a hearsay declarant testify, an agency should, in light of Perales, proceed with caution when considering a request to subpoena a hearsay declarant. See Demenech v. HHS, 913 F.2d 882 (11th Cir. 1990)(ALJ abused his discretion by refusing to subpoena the author of a medical report and then making findings based heavily on that report). [return to text]

4/ At the hearing, Merisme introduced a written statement from another person purporting to be an eyewitness who maintained that she saw the other car, not Merisme's, run a red light. The hearing officer did not credit this testimony because the second witness was an acquaintance of Merisme and was not mentioned in the police report. 27 Mass. App. Ct. at 472, 539 N.E.2d at 1053. The Appeals Court disclaimed reliance on this testimony, noting that credibility calls were for the Board to make. Id. at 472-73, 539 N.E.2d at 1053-54. However, it also made a point of stating that this was not a case like Murphy in which the hearsay testimony relied upon by an agency was uncontradicted on the record. Id. at 475, 539 N.E.2d at 1055. [return to text]

5/ See also Martin-Mendoza v. Immigration and Naturalization Serv., 499 F.2d 918, 921 (9th Cir. 1974)(sworn statement of alien who fled prior to Martin-Mendoza's deportation hearing was probably admissible under proposed FRE 804(a)(5) and (b)(4)), and Fire Com'r of Boston v. Joseph, 23 Mass. App. Ct. 76, 82, 498 N.E.2d 1368, 1372 (1986)(admissions). [return to text]

6/ Of course, if the existence of the hearsay is the significant factor, rather than the truth of the matter asserted, then all that need be shown is such existence. For example, the IRS was justified in terminating an agent based on newspaper reports that he killed his mistress because the news reports identified the shooter as an IRS agent and thus brought discredit on the IRS. Wathen v. United States, 527 F.2d 1191, 1199 (Ct. Cl. 1975). Judge Nichols, concurring in the result, observed, "I cannot help asking how a taxpayer would like having Mr. Wathen call on him to audit his tax returns." 527 F.2d at 1208. [return to text]

7/ Administrative agencies also may consider technical evidence of a kind that a court would find inconclusive. See City of Boston v. MCAD, 39 Mass. App. Ct. 234, 243, 654 N.E.2d 944, 950 (1995)(The Appeals Court commented that in ruling on a black corrections officer's claim that he had been fired on account of his race, the MCAD "considered statistics that during 1987, eighteen of twenty-one correction officers who were fired were black. In the absence of any consideration for the reasons underlying those discharges, the figures are not very instructive. The statistical evidence may be inconclusive but an administrative agency has a broader scope than a court concerning the evidence it will receive"). [return to text]

8/ The authors of one treatise are of the opinion that in agency proceedings:

questions of competency are not to serve as the guide in determining admissibility. The factor to be considered with regard to any evidence, including opinion testimony, is the weight to be accorded it.

9/ There need not be an exact match between the expert's field and the area of proposed testimony. See Herridge v. Board of Registration, 420 Mass. 154, 165 n. 11, 648 N.E.2d 745, 751 n. 11 (1995)("Dr. Beck [a psychiatrist] did not have to be engaged in the practice of psychopharmacology [like Dr. Herridge] to testify on ethical constraints applicable to the field of psychiatry as a whole"). [return to text]

10/ See also Matter of Douglas Abdelnour, Docket No. 88-138, Decision and Order on Applicants' Motions to Strike Petitioners' Prefiled Testimony, 10 MELR 1187 (Dept. of Environmental Protection, June 19, 1992)(expert testimony of "marine consultant," "a new area of expertise," stricken as unhelpful). [return to text]

11/ If the case turns on "conflicting and irreconcilable" expert testimony, and the ALJ who heard the case is not available to write the decision, that testimony (at least) must be reheard because when "significant issues of credibility must be resolved by the factfinder, those issues may not be resolved by merely reviewing a transcript of the testimony, or even a tape recording of the proceeding." Town of Southbridge Zoning Board of Appeals v. Housing Appeals Comm., Civil Action No. 94-650, Memorandum of Decision at 2 (Worcester Superior Court, Spina, J.)(August 18, 1995). [return to text]

12/ See Matter of Richard Levine, Docket No. 93-028, Partial Summary Decision, 3 DEPR 71 (Dept. of Environmental Protection, April 23, 1996)(findings in District Court action precluded petitioner from relitigating before the DEP a number of factual issues, such as the distance of his proposed septic system from the top of a coastal bank). [return to text]

13/ See also, Restatement (Second) of Judgments 83(2)(a)(prior proceeding must have provided a "right on behalf of a party to present evidence and legal argument in support of the parties contentions and fair opportunity to rebut evidence and argument by opposing parties"). [return to text]

14/ Mutuality of parties is not always essential. A party may be precluded from relitigating an issue of law or fact with a person not a party to the first action, unless the party "lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue." Restatement (Second) of Judgments 29.

Collateral estoppel may be used offensively as well as defensively. See Medical Malpractice Joint Underwriting Assoc. of Mass. v. Kenney Ins. Agency, Civil Action No. 91-6448-B, Memorandum of Decision and Order on Plaintiff's Motion for Summary Judgment (Suffolk Superior Court, Botsford, J.)(September 25, 1992)(Joint Underwriters Association obtained summary judgment against insurance agency for unpaid premiums based on the prior revocation of the agency's license by the Division of Insurance for failure to remit these same premiums). [return to text]

15/ The operative language governing agency jurisdiction may also factor into the collateral estoppel equation. See, e.g., Pacific Seafarers v. Pacific Far East Line, 404 F.2d 804 (D.C. Cir. 1969)(prior determination by Maritime Commission that defendants were not engaged in "foreign commerce" under the Shipping Act did not bar plaintiffs from pursuing claim that defendants were acting in restraint of "foreign commerce" under the Sherman Act because "foreign commerce" is more narrowly defined under the former act). [return to text]