Maryland’s Scarlett Letter (Continued from page 23)
The Tron court also cited Hyson v.
Montgomery County, 242 Md. 55, 67, 217 A.2d 578 (1966) where they said: When an administrative board or agency is required to hold a public hearing and to decide disputed adju- dicative fact based upon evidence produced and a record made, that a reasonable right of cross-examination must be allowed the parties. Id. at 261. The Court in Tron then looked at the
Maryland Administrative Procedure Act requirement that, in contested cases, each party be given the right to cross-examine the opposing party’s witnesses.
That
Court found that, while the Act did not apply in the case sub judice, the Act when read with Hyson, supra, “clearly demon- strates that the opportunity to cross-examine witnesses is a requirement of administrative adjudicatory hearings.” Id. at 263.
That having been said, unfortunately it is often the case that the Appellant is not afforded the opportunity to cross-ex- amine witnesses. It is considered acceptable that a supervisor testifies in- stead of the actual social worker that investigated the case. This supervisor may
have no actual knowledge of the case and the only information he or she has is gleaned from the report made by the so- cial worker. As a result the Appellant is completely unable to confront and cross- examine the “witness” on the actual events observed. Practitioners must be aware that social
workers often testify based on double, triple and quadruple hearsay. Further- more, administrative law judges usually allow the admission of such evidence over objection–even when the declarant is an unavailable witness.
Such conduct by
administrative law judges is in direct con- travention of applicable case law and it is critical to preserve the record on this point. In the case involving BH referenced
above, a judge was present during the al- leged “abuse by staring”. The judge was subpoenaed to testify as to his failure to observe such conduct in his presence and to the fact that he would have acted had abuse occurred in his courtroom in his presence. A Motion to Quash Subpoena filed by the Attorney General’s office was granted on the grounds that a written statement from the judge as to his lack of observations could be introduced under the hearsay exception.
Prohibition on testimony of children The accused has one last hope–calling the child to testify. Usually the child is the only actual eyewitness to the events that brought on the action. However, the accused is not free to do so. COMAR 07.02.26.19 provides: Children younger than 14 years old may not be called to testify by either party or to be involved in the hearing unless the judge determines that: (1) The child’s testimony or involve- ment is essential to a determina- tion of the appeal; and
(2) There is no likelihood that the re- quested involvement will result in emotional harm to the child.
This regulation makes it virtually im- possible for the parent to overcome the local department’s finding of indicated child abuse. The regulation consists of a two pronged test: 1) the child’s testimony or involvement must be essential to the determination of the appeal; and 2) there can be no likelihood that the requested involvement will result in emotional harm to the child. The first part of the test raises the stan-
dard of admissibility from the general rule of “probative value” to a higher standard of “essential”. While the Maryland Rules of Evidence are not binding in adminis- trative proceedings, they provide an obvious guide. Maryland Rule 5-401 defines relevant evidence as “evidence hav- ing any tendency to make the existence of any fact that is of consequence to the determination of the action more prob- able or less probable than it would be without the evidence.” The case law agrees. See Ricker v. Ricker, 114 Md. App. 583, 691 A.2d 283 (1997), where the court said:
The attorneys developing their cases in the courtroom under our adversary system should not be unreasonably re- strained from offering relevant evidence to try to convince either the courts or juries to decide in their fa- vor. “The right to present evidence is, of course, essential to the fair hearing required by the Due Process Clause” of the United States Constitution. Jenkins v. McKeithen, 395 U.S. 411, 429, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969).
At 598. The second part of the test places an
excessively high burden on the Appellant in that he or she must prove there is “no likelihood that the requested involvement will result in emotional harm to the child.” Since most adults suffer some anxiety at even the thought of having to testify, there
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