Hearsay and Witness Testimony in Administrative Hearings

In an administrative hearing, hearsay and witness testimony operate under much looser rules than in court: the administrative law judge can accept almost any relevant oral or written evidence, including secondhand statements, and then decide how much weight it deserves.¹ You keep the right to cross-examine witnesses and put on rebuttal, but the exclusionary rules that dominate jury trials mostly don’t apply. That changes the strategy. The fight is rarely about whether a piece of evidence gets in. It’s about how much the judge believes it.

Why Hearsay Comes In So Freely

The federal Administrative Procedure Act sets the baseline: any oral or documentary evidence may be received, and the agency should exclude only what is irrelevant, immaterial, or unduly repetitious.¹ Hearsay is any statement made outside the hearing offered to prove what it says. In a jury trial, that’s presumptively excluded. In an administrative hearing, letters from doctors, inspector reports, statements from neighbors, and similar documents routinely come in without the author appearing at all.

There are reasons for the difference. Administrative hearings don’t use juries, so there’s no untrained fact-finder to shield from unreliable statements. The ALJ is a professional decision-maker expected to sort trustworthy evidence from flimsy assertions. These proceedings also serve many people without lawyers, and forcing strict evidentiary compliance would trip up participants who couldn’t reasonably be expected to master rules that regularly trip up practicing attorneys.

Most state agencies take a similar approach, admitting evidence a reasonable person would rely on when making an important decision. The principle is the same as the federal rule: let it in and let the judge weigh it.

How Judges Weigh Hearsay Once It’s In

Admission is the easy part. Weight is where cases are won and lost, and ALJs do not treat all hearsay the same. A detailed medical report from a physician who examined you carries far more influence than an unsigned note from an unknown source.

Judges typically look at:

Firsthand knowledge. Did the person who made the statement actually observe or participate in what they describe?
Corroboration. Does other evidence in the record back it up or contradict it?
Opportunity to cross-examine. Could the opposing party have subpoenaed the declarant and tested the statement?
Formality. Was the statement made under oath, in a professional report, or as an offhand remark?
Bias. Does the declarant have a relationship with a party or a financial interest in the outcome?

The Supreme Court walked through these ideas in Richardson v. Perales, holding that a licensed physician’s written examination report can be substantial evidence supporting an ALJ’s adverse finding, even without the doctor testifying in person and even against opposing medical testimony, where the claimant had the chance to subpoena the doctor and did not.² The report was persuasive because a licensed professional prepared it after a direct examination, and the claimant had a remedy available and didn’t use it.

The reverse also holds. A vague letter from an unidentified source, with no corroboration and no way to test its accuracy, will carry little weight even if it goes into the record. Getting evidence admitted and getting the judge to rely on it are two different things.

Can Hearsay Alone Decide a Case?

A lot of outdated advice circulates on this. The old “legal residuum rule” held that an agency’s factual findings needed at least some evidence that would survive in a regular courtroom, meaning hearsay alone could never support a final decision. Some states still follow a version of that rule.

Federal courts abandoned it decades ago. After Richardson v. Perales, multiple circuits confirmed that hearsay alone can be substantial evidence when it carries sufficient indicators of reliability.² The Ninth Circuit put it plainly: there is no blanket rule that hearsay can never be substantial evidence. What matters is whether the particular hearsay is probative and trustworthy.

So don’t assume that because damaging evidence against you is hearsay, it’s automatically weak. Attack its reliability directly. Show the declarant had a reason to lie, that the statement contradicts other record evidence, or that the opposing party could have produced the witness live and chose not to. A targeted reliability argument does far more work than a reflexive “that’s hearsay” objection in a forum built to admit hearsay.

Preparing Your Own Witnesses

Start with people who have direct, firsthand knowledge of the facts at issue. A coworker who saw the incident, a doctor who treated the condition, a landlord who documented the violation. Secondhand accounts move the needle far less.

For each witness, collect a full name, address, and phone number, plus a short summary of what they’ll say. Most agencies require a formal witness list before the hearing. Deadlines vary: some agencies require exchange of witness lists, written statements, and exhibits as early as 60 days and no later than 15 days before the hearing.³ Miss the deadline without a strong reason and the ALJ can exclude the witness.

If a witness cannot attend, a signed written statement or affidavit preserves their account. Written statements weigh less than live testimony because the opposing side cannot cross-examine the author, but they are far better than nothing, especially when the author is a professional whose written opinions carry built-in credibility.

You have the right to bring a lawyer or other qualified representative.⁴ Some legal aid organizations and law school clinics handle administrative proceedings, particularly for disability and benefits claims. If you’re going in unrepresented, at minimum read the agency’s procedural rules before the hearing date; they’re usually posted on the agency’s website with the required forms.

Subpoenaing a Reluctant Witness

When someone with important information won’t come voluntarily, you can ask the ALJ to issue a subpoena. Under federal law, agencies with subpoena authority must issue one on request when the party shows the evidence sought is relevant and reasonable in scope.⁴ You can subpoena documents and other physical evidence too.

Submit a written request to the ALJ explaining who you want subpoenaed and why the testimony matters. File early so the witness has adequate notice; late requests require good cause. If a subpoenaed witness refuses to appear, the agency can seek enforcement in federal district court, which can order the witness to appear under penalty of contempt.⁴ Enforcement is rare because most people comply once served, but the mechanism has teeth.

The requesting party pays witness fees. Under federal law the attendance fee is $40 per day, plus a mileage allowance for private vehicle travel at the rate set by the General Services Administration.⁵ State agencies set their own schedules. Budget for these costs if your case depends on compelled testimony.

What Testimony Looks Like at the Hearing

Witnesses testify under oath or affirmation administered by the ALJ before questioning begins.⁶ Lying under oath here carries the same legal consequences as perjury in court. Say that plainly to anyone you’re bringing along.

The party who called the witness goes first with direct examination, drawing out the relevant facts in a logical order. The opposing party then cross-examines. The ALJ also asks questions, and does so far more actively than a judge in a jury trial. ALJs are not passive referees; they will dig in when something doesn’t add up.⁶

Testimony can happen in person, by telephone, or by video, depending on the agency. Video hearings became standard at many agencies in recent years and remain widely used. An ALJ evaluating credibility on video is still watching your witness’s reactions and hearing how they respond under pressure.

Either party can ask the ALJ to sequester witnesses so each person waits outside until called and does not hear the others testify. This prevents witnesses from tailoring accounts to match. The ALJ can also order sequestration on their own. Parties who are individuals and designated organizational representatives are exempt.

Objecting to Preserve the Issue

Loose evidentiary rules do not mean sitting quietly when the other side offers something unreliable. Objections still matter, and failing to raise them can hurt you at the hearing and on appeal.

An ALJ can exclude evidence that is irrelevant, immaterial, unduly repetitious, or barred on constitutional or statutory grounds.¹ When objecting to hearsay, explain why the specific statement is untrustworthy: the declarant had a financial stake, the statement contradicts their prior statements, the opposing party could easily have brought the declarant in live. A bare “objection, hearsay” accomplishes nothing in a forum designed to admit hearsay freely.

Here’s the trap. If you don’t object during the hearing, you generally lose the right to challenge that evidence later. Federal courts have consistently held that hearsay admitted without objection can be substantial evidence supporting the agency’s final decision. Silence converts questionable evidence into evidence strong enough to survive judicial review. A timely objection, even one the ALJ overrules, preserves the argument for appeal.

When You Need an Expert

Some cases turn on technical questions ordinary testimony cannot resolve: whether an exposure caused an illness, whether a structure met safety codes, whether a transaction crossed a regulatory line. Expert witnesses fill that gap with opinion testimony based on specialized knowledge.

To qualify as an expert, a witness needs relevant knowledge, skill, experience, training, or education, and that background must help the ALJ understand the evidence or resolve a factual question.⁷ The ALJ decides whether someone qualifies. The opposing party can challenge credentials on cross-examination or by motion.

Expect pre-hearing disclosure requirements. Many agencies require a written report covering the expert’s opinions, the factual basis for them, qualifications, and compensation. Some agencies impose earlier deadlines for experts than for other witnesses; statistical expert reports, for example, may be due 30 days before the hearing rather than the standard 15.³ Missing an expert deadline is especially damaging because finding a replacement expert on short notice is rarely feasible.

The Record Is What You Made It

Everything the ALJ can rely on has to be in the record: the transcript, the exhibits, the documents filed during the hearing.¹ Anything you wanted the judge to consider but never formally introduced does not exist for purposes of decision or review. Many people lose cases they should have won not because their evidence was weak, but because they never got it in front of the judge in a form the record could hold.

1
Office of the Law Revision Counsel. 5 USC 556 – Hearings; Presiding Employees; Powers and Duties
2
Justia Law. Richardson v. Perales, 402 U.S. 389 (1971)
3
eCFR. 45 CFR 160.518 – Exchange of Witness Lists, Witness Statements, and Exhibits
4
Office of the Law Revision Counsel. 5 USC 555 – Ancillary Matters
5
Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally
6
eCFR. 20 CFR Part 404 Subpart J – Administrative Law Judge Hearing Procedures
7
eCFR. 29 CFR 18.702 – Testimony by Experts