Both administrative law traditionalists and modern evidence law commentators have criticized technical evidence law principles, particularly the hearsay rule. Much of the criticism relates to the concern that hearsay rule application could, and does, unjustly exclude significant amounts of relevant proofs. These critics have largely signaled their desire for hearsay rule modification, repeal, or nonuse. Administrative law courts have implicitly recognized the working exceptions and exclusions to the hearsay rule though they protest the opposite. Select categories of hearsay proofs are well documented within our court literature. Party admissions, business records, public records, and statements to physicians are all examples of current categorical exceptions or exclusions to the hearsay rule that administrative law courts have adopted to permit the admission of hearsay proofs while protecting the inherent integrity of the administrative law process. Mandating technical evidence law application is required. Such evidence law application will assure significant uniformity among agency adjudication and provide an environment within which litigants will feel secure in the dispute process. Proponents of the administrative law process must recognize that the technical application of evidence law principles assures fairness in the proceeding, while continuing in good faith to provide a viable alternative to general jurisdiction courts. The passage of years since the inception of the administrative law process has gradually seen institutional changes in the application of technical evidence law principles, particularly the hearsay rule.
Elliot B. Glicksman,
The Modern Hearsay Rule Should Find Administrative Law Application,
78 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol78/iss1/7