As mentioned in previous blogs, hearsay is admissible in an administrative hearing [see links below].
The ALJ in an DSHS hearing may admit and consider hearsay evidence but may only base a finding on hearsay evidence if the ALJ finds that the parties had the opportunity to question or contradict it and provided there is some trustworthiness to the documents.
But what about the introduction of documents used in a criminal prosecution to establish probable cause for a search or seizure into an administrative hearing?
Probable cause is not proof of the activity alleged but merely cause to believe it may have occurred. Even if probable cause is established, it only provides sufficient facts for a reasonable person to conclude there is a “probability” that the defendant is involved in the alleged criminal activity. Probable cause may be based on hearsay but it may also be based on other un-scrutinized evidence, and a tolerance for factual inaccuracy is inherent to the concept of probable cause; probable cause may be based on hearsay, a confidential informant’s tip, and other un-scrutinized evidence that would be inadmissible at trial.
The policy for accepting such un-scrutinized evidence at this stage of a criminal proceeding is cured by the high burden of proof required for the conviction itself. That type of balance does not exist in the context of an administrative hearing because the burden of proof is so low, as “more probable than not.”
DSHS agencies such as Child Protective Services and Adult Protective Services have relied on such documents for finding abuse or neglect, rather than conducting its own independent investigation. Then, it relies on the same information to try and prove its finding in an administrative hearing.
The Administrative Law Judges [“ALJs”] tend to err on the side of letting hearsay in, but it is fundamentally problematic for an ALJ to consider statements submitted in a criminal matter for probable cause when the content is inherently unreliable but for the context of a criminal proceeding with the highest burden of proof.
It is a practice that DSHS should never have adopted, but the accused is usually facing an uphill battle to exclude it in an administrative hearing.
State v. Chenoweth,160 Wash.2d 454, 158 P.3d 595 (2007)
State v. Garcia, 140 Wash.App. 609, 166 P.3d 848 (2007)