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In Jencks v. United States34 it was held that the defendant in a criminal prosecution has the right to examine all reports in the possession of the prosecution that bear upon the events and activities to which a prosecution witness testifies at trial. In modified form, this principle has been extended to administrative proceedings in which the agency is an adversary 35 and some agencies have adopted procedural rules specifically directed to the "Jencks” situation. The attorney representing the agency in such cases has the responsibility of providing any information in the agency's files that is favorable to the respondent, and the Judge should be sure that the attorney is aware of such responsibility
In ruling upon such requests, the Judge should bear in mind that he does not occupy precisely the same position as that of the court in Jencks. He is not being asked to compel unwilling disclosure by a separate branch of government but rather to make the initial decision for the agency itself as to what it shall voluntarily disclose. Accordingly, in absence of agency policy to the contrary, and within the scope of his discretion, the Administrative Law Judge should be guided by his sense of fair play rather than by a narrow legal analysis of whether, under Jencks, the Constitution would force the agency grudgingly to provide the information requested. He should ordinarily require production of all relevant and material factual statements whether or not covered in the
34 Jencks v. United States, 353 U.S. 657; 672 (1957). The principle of this case, with some modifications, was later codified, 18 U.S.C. $ 3500. This provision is applicable only to criminal cases.
35 Great Lakes Airlines v. CAB, 291 F.2d 354, 363-365 (9th Cir. 1961), cert. denied, 368 U.S. 890 (1961); NLRB v. Adhesive Product Corp., 258 F.2d 403, 408 (2d Cir. 1958); Communist Party of the United States v. SACB 254 F.2d 314, 327-328 (D.C. Cir. 1958).
36 NLRB, 29 C.F.R. 88 102, 118 (1973); and CAB, 14 C.F.R. $ 302.19(g) (1973).
37 Brady v. Maryland, 373 U.S. 83 (1963).
witness' testimony. In considering whether such statements should be provided, the Judge may require them to be produced for examination in camera.
C. Reports, Estimates, Forecasts,
and Other Studies Where historical data, statistical or technical reports, forecasts, or estimates are to be prepared by more than one party, it is frequently necessary for the Judge to establish standard bases and time periods. In addition, it is sometimes necessary to specify in some detail the manner of preparation-by requiring, for example, that the parties use certain specified methods in preparing cost estimates.98 Of course, these rulings should not prevent a party from asking the Judge to receive evidence in another form as well if the party so desires.
D. Polls, Surveys, Tests, and Samples In some cases, information is needed about habits, customs, or practices for which little reliable data is available for example, the method of loading trucks or the percentage of travellers who prefer non-smoking areas. In such situations, polls, surveys, samples, and tests may be the most feasible methods of obtaining the needed information. They may have been previously prepared by a party or an independent source for other purposes or they may be prepared specifically for the pending proceeding—either by one or more of the parties independently or with the consent and knowledge of the Judge and the other parties as a part of the prehearing procedure.
Polls, surveys, samples, and tests frequently raise serious questions of objectivity and reliability. The Judge should require the procedures by which they were produced to be described in detail sufficient to enable realistic evaluation of these factors, which are often seriously contested at the hearing. If the conduct of a poll, survey, sample, or test is agreed upon or prescribed in the prehearing process, the procedures to be used may be specified—subject to the right of parties to criticize such procedures unless they specifically agree not to do so.
38 See, e.g., CAB, 14 C.F.R. 88 302.1101-1109 (1973).
IV. Procedural Devices and
The traditional formal administrative hearing resembles a trial before a Judge sitting without a jury. Testimony is given orally by a witness who is then subject to cross-examination. While this may be a satisfactory model to follow in simple cases, particularly when the truthfulness of witnesses is a principal issue, it inevitably leads to lengthy hearings if complex issues or several parties with conflicting interests are involved. A number of procedural tools have been developed to simplify such proceedings and make them more manageable.
Efficiency is not the only goal. The hearing must be conducted in a fair manner and all interested persons must have an opportunity to participate. The devices described below should not be used unreasonably or unfairly.
Preparation and Exchange of
The Administrative Procedure Act provides:
A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be
prejudiced thereby, adopt procedures for the submission of
all or part of the evidence in written form." 39 Except in cases where credibility is a primary issue, there are advantages in having the parties prepare all of their direct and rebuttal evidence in writing and exchange it before hearing. If such exchange of evidence is preceded by the exchange of information as requested and directed at the conference, or as provided for by other prehearing procedures, preparation for the hearing is easier and the duration of the hearing is reduced. Of course, the Judge has the responsibility of mastering the written testimony—preferably by making notes or digests—before the hearing commences.
The following pattern for the exchange of material, with reasonable but short time periods, is often convenient: First, each party furnishes the material requested by others; second, each party submits his proposed direct evidence; third, each party submits his proposed rebuttal evidence; and fourth, each party submits his surrebuttal, if any. Normally all parties observe the same exchange dates, though this may be varied where appropriate. This pattern permits a party (1) to examine information supplied by other parties before preparing his direct evidence; (2) to study other parties' direct evidence before preparing rebuttal; and (3) to prepare for cross-examination without interrupting the hearing or studying the transcript during recesses.
Even when the Administrative Procedure Act provides that the parties cannot be required to submit all evidence in writing, they will usually agree to present most of it in written form. Experienced counsel recognize that the advantages are many and the disadvantages few. Of course, oral testimony
necessary if the witness is hostile to the party calling