Excluding Witnesses from the Hearing Room

Rule R2-19-118 of the Rules for the Office of Administrative Hearings provides that, “[a]t the request of a party, or at the discretion of the administrative law judge, the administrative law judge may exclude witnesses who are not parties from the hearing room so that they cannot hear the testimony of other witnesses.” This article briefly discusses the circumstances under which a party may request and the administrative law judge may grant a request to exclude witnesses from the hearing room.

The administrative rule is wholly discretionary, which means that, if a party requests that non-party witnesses be excluded, the administrative law judge is not required to grant the request.¹ Parties’ attorneys cannot be excluded from the hearing. Parties may request, or the administrative law judge may order, that witnesses be excluded at any time during the administrative hearing.² If the rule of exclusion is successfully invoked at the start of the hearing, the non-party witnesses will not be allowed to hear the parties’ opening statements. The purpose of the rule allowing witnesses to be excluded from the hearing is to prevent witnesses from fabricating facts and to preserve individual witnesses’ testimony, which otherwise might be tainted if the witnesses are allowed to hear others’ testimony.³ Once a witness has testified and has been cross-examined, he or she may stay to hear the remaining testimony and closing argument.⁴ Some witnesses lack firsthand knowledge of the events giving rise to the administrative claim or dispute but, instead, are called to testify as an expert about his or her opinion of the significance of facts that other witnesses’ testimony establish.⁵ Expert witnesses generally are not subject to exclusion because, although their opinions may be unfounded or unconvincing, opinions are not facts and cannot be true or false.⁶ As a practical matter, if the parties’ experts are not allowed to hear and respond to or critique each other’s opinions, the hearing may be unduly prolonged as the parties and the administrative law judge attempt to characterize the experts’ respective positions. The record also may be compromised if the parties and the administrative law judge inadvertently mischaracterize or inadequately summarize an expert’s opinion.

A party may oppose a request to exclude witnesses if the party shows that the witness is essential to the presentation of the party’s case.⁷ For example, a party may have retained an investigator or consultant to help it prepare for the hearing.⁸ The purpose of having an investigator or consultant at the hearing is to allow him or her to call the party’s attention to factual matters that the party may not be aware of.⁹ A witness’s presence also may be essential to the party’s case when the witness is also acting as translator for the party or when the party and the witness have a special relationship, for example, husband and wife, parent and child, or therapist and patient,¹⁰ that will facilitate the presentation of evidence and expedite the hearing. But, because the administrative rule is wholly discretionary, the administrative law judge may find that the witness’s presence is less important than the other party’s right to invoke the rule and may order that the witness be excluded.

1 Cf. Ariz. R. Evid. 615; Ariz. R. Cr. P. 9.3(a) which makes exclusion mandatory.

2 See, e.g., State v. Edwards, 154 Ariz. 8, 13-14, 739 P.2d 1325-26, 1330 (App. 1986).

3 See, e.g., Edwards, 154 Ariz. at 13, 739 P.2d at 1330.

4 See Ariz. R. Cr. P. 9.3(a).

5 See generally cases interpreting Ariz. R. Evid. 702.

6 See, e.g., Burgunder v. State of Arizona, 55 Ariz. 411, 427, 103 P.2d 256 (1940).

7 Cf. Ariz. R. Evid. 615(3); Ariz. R. Cr. P. 9.3(a).

8 Cf. Ariz. R. Evid. 9.3(d).

9 See State v. Williams, 182 Ariz. 368, 380, 904 P.2d 437, 449 (1995); State v. Hill, 174 Ariz. 313, 321 n.3, 848 P.2d 1375, 1383 n.3 (1993) (citing comment to Rule 9.3(d)), cert. denied, 510 U.S. 898, 114 S. Ct. 268, 126 L. Ed. 2d 219 (1993).

10 Cf. State v. Uriarte, 194 Ariz. 275, 279, 981 P.2d 575, 577 (App. 1999) (interpreting Victims’ Bill of Rights).