D.C. Mun. Regs. tit. 1, r. 1-2823

Current through Register Vol. 71, No. 49, December 6, 2024

Rule 1-2823 - HEARINGS AND EVIDENCE

2823.1

The presiding Administrative Law Judge shall determine whether a hearing is required by law in any case.

2823.2

Unless otherwise ordered by an Administrative Law Judge, at least five (5) calendar days before any evidentiary hearing (except in unemployment compensation cases governed by §§ 2983.1 or in DFHV cases), a party shall serve on all other parties and file with the Clerk the following:

(a) A list of the witnesses, other than a party or a charging inspector, whom the party intends to call to testify, including their address and telephone number if available; and

(b) An exhibit list, including a numbered copy of each exhibit that the party intends to offer into evidence, other than exhibits that were served with the Notice of Violation, Notice of Infraction, or Answer or are to be used solely for impeachment or rebuttal.

2823.3

The Administrative Law Judge may exclude any witnesses or exhibits not disclosed under §§ 2823.2 if he or she finds that the opposing party would be prejudiced by the failure to disclose.

2823.4

(a) An Administrative Law Judge shall have the sole discretion to determine whether a proceeding or part of a proceeding will be conducted in person, via teleconference, or via videoconference.

(b) Subject to a party's right to request to appear in person or via videoconference, teleconferencing shall be presumptively used for prehearing conferences, status conferences and motion hearings.

(c) By OAH policy, the Chief Administrative Law Judge shall establish the presumed manner of conducting evidentiary hearings.

(d) An in-person hearing shall be held only in an OAH courtroom, except as otherwise provided in this Section. An in-person hearing may be held in another physical location only as required by law or in exceptional circumstances with approval of the Chief Administrative Law Judge. An Administrative Law Judge may permit a party to appear or a witness to testify at an in-person hearing from a remote location by telephone, videoconferencing, or similar means. Unless otherwise permitted or ordered by an Administrative Law Judge, representatives of a party shall not appear by telephone at an in-person hearing.

(e) An Administrative Law Judge may determine the manner and extent of the use of teleconferencing or videoconferencing, and may require participants to attend court proceedings, in whole or in part, in whatever manner they deem appropriate.

(f) Any party may request that a hearing may be conducted in an alternate platform or in-person if scheduled remotely. Any request to change the platform in which a hearing is to be conducted shall comply with §§ 2817 regarding the filing of motions. In considering a request to change the way a proceeding is conducted, the Administrative Law Judge shall consider:

(1) The capabilities of the Administrative Law Judge and the parties to participate in the platform to be used, including whether any necessary parties are unable to participate in the proceeding because of lack of technology, poor connectivity, actual inability to use technology, or inability to physically appear;

(2) Whether the other necessary parties consent to the request;

(3) Whether the platform to be used for the proceeding will facilitate the presentation of evidence in the case;

(4) Whether the platform to be used for the proceeding will prejudice either party, either positively or negatively; and

(5) Any other factors that the Administrative Law Judge may determine to be relevant.

2823.5

Parties shall have the following rights at a hearing:

(a) To testify and to have other witnesses testify for them;

(b) To cross-examine witnesses called by another party;

(c) To request that any prospective witness be excluded from the courtroom;

(d) To examine all exhibits offered into evidence by another party;

(e) To object to the admission of any testimony or other evidence;

(f) To subpoena witnesses, as provided in §§ 2824; and

(g) To appear with a representative, as provided in §§ 2808 and 2810.

2823.6

At a hearing, all parties may present evidence. "Evidence" includes testimony by the parties and by any witnesses; papers; photographs; or any other items that a party believes may help the Administrative Law Judge decide the case. The Administrative Law Judge shall decide what evidence shall become part of the record.

2823.7

Testimony in any hearing ordinarily will be given in open court. An Administrative Law Judge may exclude testimony given by any other means, unless otherwise permitted by statute or these Rules.

2823.8

For good cause shown, an Administrative Law Judge may permit a witness to submit written testimony in advance of the hearing, subject to cross-examination and redirect examination at the hearing.

2823.9

For good cause shown, an Administrative Law Judge may allow parties to submit pre-recorded testimony subject to appropriate safeguards including crossexamination.

2823.10

All witnesses shall testify under oath or affirmation subject to the penalty of perjury. Nothing in this Subsection forbids the admission of an affidavit or other written statement under penalty of perjury.

2823.11

Hearsay evidence (generally, a statement by a person not present at the hearing) is admissible. When hearsay evidence is admitted, the Administrative Law Judge shall assess the reliability of the evidence to determine the weight it should be assigned. An Administrative Law Judge shall consider the speaker's absence in evaluating the evidence.

2823.12

In determining the admissibility and weight of evidence, an Administrative Law Judge may use the Federal Rules of Evidence for guidance, but they shall not be binding.

2823.13

An Administrative Law Judge may limit or exclude testimonial or documentary evidence to avoid surprise or prejudice to other parties, repetition, or delay.

2823.14

Whenever any applicable law or order requires or permits the filing of an affidavit or other writing signed under oath, the signer may submit a written declaration in substantially the following form:

"I declare under penalty of perjury that the foregoing is true and correct. Signed on (date).

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2823.15

All Administrative Law Judges are authorized to administer oaths.

D.C. Mun. Regs. tit. 1, r. 1-2823

Final Rulemaking published at 51 DCR 6399 (June 25, 2004); as amended by Final Rulemaking published at 51 DCR 8595 (September 3, 2004); as amended by Emergency and Proposed Rulemaking published at 51 DCR 9322 (October 1, 2004) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 720 (January 28, 2005); as amended by Notice of Final Rulemaking published at 57 DCR 12541, 12558 (December 31, 2010); Final Rulemaking published at 63 DCR 6556 (4/29/2016); amended by Final Rulemaking published at 71 DCR 13913 (12/1/2024)

Authority: The Chief Administrative Law Judge of the Office of Administrative Hearings (OAH), pursuant to the authority set forth in Sections 8(a)(7) and 8(b)(7) of the Office of Administrative Hearings Establishment Act of 2001, effective March 6, 2002 (D.C. Law 14-76, D.C. Official Code §§ 2-1831.05(a)(7) and (b)(7)) .