I-2-6-60.Testimony of Claimants and Witnesses
Last Update: 1/15/16 (Transmittal I-2-163)
A. Administrative Law Judge (ALJ) Responsibilities
The ALJ determines the subject and scope of testimony from a claimant and any witness(es), as well as how and when the person testifies at the hearing. For example, an ALJ may decide to use a question and answer method, or the ALJ may allow the claimant or witness to testify in his or her own way, such as making a detailed statement on the record.
If a claimant or witness requests to testify in a particular way, or asks to testify at a particular time during the hearing, the ALJ will consider whether there is a good reason for the request. Additionally, if a claimant or witness objects to the presence of any other individual during his or her testimony, the ALJ will consider whether there is a good reason for the objection.
If the ALJ finds there is a good reason, the ALJ will make every reasonable effort to accommodate the person's request or objection. If the ALJ does not grant the request, the ALJ will either deny the request in writing before the hearing (and exhibit the document) or deny the request on the record during the hearing. In either circumstance, the ALJ will explain the reason(s) he or she denied the request.
B. Right to Question Witnesses
The claimant and an appointed representative, if any, have the right to question witnesses to inquire fully into the matters at issue. Generally, the ALJ will provide a claimant or representative broad latitude in questioning witnesses. However, the ALJ is not required to permit testimony that is repetitive or cumulative, or allow questioning that has the effect of intimidating, harassing, or embarrassing the witness.
An ALJ will issue a subpoena when information or testimony that is reasonably necessary for a full presentation of the case cannot be obtained without a subpoena and the ALJ has exhausted other means of obtaining the information or testimony. See Hearings, Appeals and Litigation Law (HALLEX) manual I-2-5-78. If a witness appears at the hearing because of a subpoena, the ALJ must be sure to question the witness about the facts or information that prompted the subpoena (i.e., the facts or information necessary for full and true disclosure of the facts).
The ALJ determines when the claimant or representative may question a witness. The ALJ will usually provide a claimant or representative the opportunity to question a witness after the ALJ completes his or her initial questioning of the witness. If necessary, the ALJ may recall a witness for further questioning.
An ALJ may choose to exclude a witness from the hearing while others are testifying. For example, an ALJ may find it appropriate to exclude a witness from the hearing when he or she is not testifying if the ALJ believes the presence of the witness during other portions of the hearing may:
Affect the testimony of the witness or the testimony of another individual;
Influence or embarrass another individual providing testimony; or
Be harmful to the witness or another individual providing testimony.
C. Claimant's Right to Be Present During the Entire Hearing
The claimant and appointed representative, if any, generally have the right to be present during the entire hearing. However, the ALJ may excuse the claimant from the hearing in circumstances such as the following:
The claimant requests that the ALJ proceed without his or her attendance, the ALJ has fully advised the claimant of the right to be present and participate in the hearing, and the record demonstrates that the claimant understands the right to be present and the consequences if he or she is not present.
The appointed representative asks that the claimant be excused for the remainder of the hearing, the claimant agrees to be excused on the record, and the representative will be present throughout the remainder of the hearing.
The claimant is a minor, the claimant's attendance is no longer needed, a guardian or appointed representative will be present through the remainder of the hearing, and a responsible person who is not an agency employee can wait with the minor while the hearing continues.
D. Disruptive Claimant or Representative
1. Disruptive Claimant
If the claimant is disruptive during the hearing, and continues the behavior after the ALJ fully advises the claimant on the record that the conduct is disrupting the proceedings, the ALJ will take one of the following actions:
If the claimant is represented and the representative is unable to address the behavior (either during the proceedings or after a short recess), the ALJ will discuss with the representative whether to proceed with the hearing only in the presence of the representative. If the representative agrees to continue without the claimant present, the ALJ may proceed with the hearing, allowing the representative to question any witness(es). If the ALJ reschedules the hearing and the claimant is again disruptive at the supplemental hearing, the ALJ will excuse the claimant and inform the representative that the supplemental hearing will proceed only in the presence of the representative.
If the claimant is not represented, the ALJ will take a short recess to provide the claimant time to compose himself or herself. When the ALJ goes back on the record, the ALJ will explain what behavior is disruptive. The ALJ will also explain that the claimant has the right to be present throughout the remainder of the hearing and to question witness(es), but that if the disruptive behavior continues, the claimant will be indicating that he or she waives the right to be present during the hearing and the ALJ will issue a decision on the record. If the disruptive behavior continues, the ALJ will adjourn the hearing and issue a decision on the record.
2. Disruptive Representative
If an appointed representative causes a disruption before or during hearing proceedings that significantly impacts the ALJ's ability to effectively conduct the hearing, there may be circumstances when it is appropriate for the ALJ to excuse or exclude the representative from the hearing. If the disruption occurs during the hearing, the ALJ will only excuse the representative after fully advising the representative, on the record, that the conduct is disrupting the proceedings.
An ALJ may not excuse or exclude a representative from a hearing based solely on past behavior or the ALJ's personal opinion of the representative. The record must clearly document disruptive behavior in the case currently before the ALJ and demonstrate why the disruptive behavior prevented the ALJ from effectively conducting the hearing.
If the ALJ removes or excludes an appointed representative from the hearing, the ALJ may not question or continue to question the claimant or any other witness(es). Rather, the ALJ will explain to the claimant, on the record:
The reasons the representative was removed or excluded from the hearing;
The hearing cannot continue at this time; and
The hearing will be rescheduled.
The ALJ will then close the record and reschedule the proceeding. After the hearing, depending on the nature of the disruptive behavior, the ALJ will consider whether a referral to the Office of the General Counsel is appropriate, especially if disruptive behavior has been repeated or is systemic. For referral procedures, see HALLEX I-1-1-50. If repeated disruptive behavior results in an inordinate delay in processing a claimant's case, the ALJ will discuss how to proceed with hearing office management.
E. Obtaining Testimony When There Are Multiple Parties to the Hearing
When there is more than one party to a hearing, the ALJ will obtain testimony from all parties at one hearing whenever possible. For more information on who is a party to the hearing and what notice is required, see HALLEX I-2-1-45. See also HALLEX I-2-3-10 for issues relating to determining the manner of appearance at a hearing and handling a claimant's objections to how another person will appear at a hearing.
Usually, each party to a hearing will testify in the presence of the other parties. However, if a party specifically requests to testify separately, the ALJ will allow separate testimony if the other parties consent or the ALJ decides it is appropriate. If the ALJ decides on his or her own initiative to take testimony from a party outside the presence of other parties to the hearing, the ALJ will explain, either on the record or in a writing that is exhibited, the reasons the ALJ chose to permit testimony outside the presence of the other parties.