Administrative hearings are of utmost importance to the criminal justice system. Section 554 (a) of the APA “applies…in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing…” (Carter and Harrington, 2000, p. #). It is important to know that stating that the words “on the record” are generally used to trigger the formal adjudication of a hearing under the Administrative Procedure Act (APA), but it is also important to keep in mind that these words do not have to be specifically said in order to make a formal adjudication. Carter and Harrington state the following to show proof for this:
Although Section 554 specifies that the governing statute must satisfy the ‘on the record’ requirement, those three magic words need not appear for a court to determine that formal hearings are required. It is enough that Congress clearly indicate its intent to trigger the formal, on-the-record hearing provisions of the APA (p. #).
It is enough to state that the hearing will be “on the record” in order to formulate an adjudication. As stated above, it is not even necessary to specifically say it. It is enough for Congress to specifically indicate its intent for formal adjudication. They just have to be able to do this based on the provisions in the APA. However, sometimes it is up to the judge to decide this as well. Some judges will honor the idea that it doesn’t have to be formally said while others will not. This is all a judgment call. Carter and Harrington (2000) state the following to explain this a little more:
In some cases, courts will refuse to decide simply on the basis of the presence or absence of the magic words on the record in the authorizing statute. Courts may look to the legislative history of the statute in order to determine if formal adjudication is required (p. #).
It is easy to state that something is on the record and then it is “official.” However, it isn’t required by the APA because it isn’t specifically stated that these magic words have to be used. Therefore, as long as there is intent, it is enough to trigger adjudication.
There are four specific components of a hearing. These components include timely and adequate notice, disclosure of opposing evidence and opportunity to confront and cross-examine witnesses, oral presentation of arguments and evidence, and the right to retain an attorney (Carter and Harrington, 2000). The first component, timely and adequate notice, has been put into effect in order to give the individual notice of what he or she did wrong and allows them time to do something about it if they need to or wish to. This ensures that fairness is present. This also allows for the individual to learn the mechanics of their case such as when and where their hearing will take place. The second component, oral presentation of arguments and evidence, has been put into effect so that the individual knows that due process will be followed. However, Carter and Harrington (2000) state that it doesn’t necessarily mean that all claimants will get to present orally, but that they do have a right to if they so wish to do so. Most of the time, this part can be done in a written presentation and will result in the same evidence and arguments being heard. This will include depositions, direct examination and cross-examination. “Direct examination consists of the questioning of your client and your client’s witnesses by you to elicit testimony about your client and the circumstances that brought about the hearing” (“Components of an Administrative Hearing,” 2009, p. 2). Being able to confront witnesses and cross-examine witnesses is also another important part of the administrative hearing process. This allows the individual to confront his or her witnesses, know what he or she did wrong, and to allow the plaintiff’s attorney to question the individual’s witnesses. This can be explained in a little more detail by reviewing the case Greene v. McElroy (1959) where Greene’s security clearance was being denied based on confidential information which the defense department refused to provide to him. Chief Justice Earl Warren basically stated that this could not happen as Greene had a right to know what he allegedly did so that he could deny or accept it (Carter and Harrington, 2000). To put it simply, section 556(e) states: “when an agency decision rests on official notice of a material fact not appearing in the evidence in record, a party is entitled, on timely request, to an opportunity to show the contrary” (Carter and Harrington, 2000, p. #). The third component, oral presentation of arguments and evidence, does not mean that each person will necessarily get to present orally. However, if the person claims the right to be heard orally, the courts will fall back on the due process analysis. Most of this can be done in written form through depositions, but the importance of this component is giving the person the right to do it orally if they would like. Each area of the hearing (direct examinations, cross-examinations, redirect examinations, and opening and closing arguments) are all able to be done within a written text rather than oral and most courts like it this way. Finally, the fourth component, the right to retain an attorney is of utmost importance in an administrative hearing. This is a bit of a catch 22. The reason for this catch 22 is due to the fact that, in most cases, indigent individuals cannot afford an attorney even though they have the right to retain one. Therefore, the government is required to provide lawyers who cannot afford them in these cases. There are also non-profit organizations that help with this as well, according to Carter and Harrington. For example, the “National Resources Defense Council (NRDC) and the Environmental Defense Fund (EDF), provide legal representation for citizens concerned about cleaning up and protecting the environment” (Carter and Harrington, 2000, p. #).
In conclusion, the Administrative Procedure Act does not specifically set a whole lot in stone. There are ways in which the government, Congress, judges and others can get away with the “formalities” of the act. As stated in the first two paragraphs, it is important to state that the hearing is on the record; however, it is not necessary. It does not have to be said in order to have a formal adjudication. So, as we can see, the components and the act are put into place in order to provide a specific degree of justice. However, there is some leeway in the ways in which things are said and done in order to deal with each hearing on its own basis.
Carter, L., & Harrington, C. (2000). Administrative law and politics: Cases and comments. (3rded.). Addison Wesley Longman, Inc.
Components of an administrative hearing. (2009). Center for Legal Aid Education Administrative Hearing Skills, 1-3. Retrieved from http://drupaldev.povertylaw.org/sites/default/files/files/training/adminhs/components_of_hearing.pdf