Last Update: 9/2/05 (Transmittal I-2-64)
The ALJ determines the subject and scope of claimants' and witnesses' testimony, and how and when they will testify at the hearing (e.g., the ALJ may decide to use the question and answer method or allow the claimant or witness to testify in his or her own way). If a claimant or witness requests to testify in a particular way, or at a particular time during the hearing, and has a good reason for making the request, the ALJ should make a reasonable effort to accommodate the person. If the ALJ does not grant the request of a claimant or witness to testify in a particular time or way, the ALJ shall state on the record the reasons the request is being denied.
The claimant and the representative have the right to question witnesses. A claimant or representative is entitled to conduct such questioning as may be needed to inquire fully into the matters at issue. The ALJ should provide the claimant or representative broad latitude in questioning witnesses. However, this latitude does not require the ALJ to permit testimony that is repetitive and cumulative or questioning that is designed to intimidate, harass or embarrass the witness.
The ALJ determines when they may exercise this right. The ALJ usually allows the claimant and the representative the opportunity to question a witness when the ALJ completes his or her initial questioning of the witness. If necessary, the ALJ may recall a witness for further questioning. Subpoenaed witnesses are subject to such cross-examination as may be required for full and true disclosure of the facts.
The claimant and the representative have a right to be present during the entire hearing. However, there may be instances in which the claimant may be excused from the hearing. Such instances include, but are not limited to:
When the claimant requests that the ALJ proceed without his or her attendance and only after the claimant is advised by the ALJ of their right to be present and participate in the hearing and the claimant understands that right and what will happen if he or she is not present.
The representative asks the claimant to be excused from the hearing, the claimant agrees, and the representative remains in the hearing room for the rest of the hearing to protect the claimant's interest.
The claimant or the representative is being disruptive during the hearing and continues this pattern of behavior after being fully advised that the conduct is disruptive of the proceedings.
When there is more than one claimant to the hearing, the ALJ will bring the claimants together at one hearing, if possible. (See I-2-1-45 B., Informing Individuals Who May Be Parties to The Hearing; I-2-1-65 B., Types of Hearings; and I-2-3-10 A., Determining the Time and Place for Hearing.)
Each claimant at such a hearing will testify in the presence of the other claimants, unless a claimant requests to testify separately and the other claimants consent to the separate testimony or the ALJ decides on his or her own initiative to receive the testimony separately. The ALJ shall place on the record or issue a written ruling that will be made an exhibit, the reasons why the ALJ on his or her own initiative has elected to take testimony from one claimant outside the presence of the other claimants.
The ALJ may exclude a witness from the hearing, while others are testifying, if the ALJ thinks the presence of the witness might influence or embarrass the individual testifying, be harmful to either the witness or the individual testifying, or affect subsequent testimony.
The ALJ must rule on any claimant's or witness' objection to the presence of other claimants or witnesses during his or her testimony.