Simply because a proceeding qualifies as an adjudication under the APA does not mean that trial-type procedures must be used. The APA mandates trial-type procedures only whenever another statute specifically requires them. A congressional mandate for a hearing is not likely to be construed as requiring a trial-type hearing; Congress must clearly state that the right to a trial-type hearing is granted.

If a full trial-type hearing is not required, an agency may use any other form of hearing within the limits of due process. Such hearings are similar in many respects to court trials. The parties may make opening and closing statements—they are permitted to call and cross-examine witnesses; and they may introduce other evidence and make objections. An administrative law judge or other officer presides at the hearing. However, as you will learn, some important differences exist between judicial trials and administrative adjudications.

In federal and state courts, rules of evidence govern whether testimony, exhibits, or other evidence may be admitted. Evidence that is untrustworthy, irrelevant, or unduly prejudicial will be excluded from trial under various rules. A presiding officer of an administrative hearing may admit hearsay or other evidence that would be excluded from a judicial trial unless the agency has a rule of evidence that requires otherwise.

Although agencies are not bound by court rules of evidence and, therefore, may admit incompetent evidence, their decisions should not be based on such evidence alone. Common law, recognizing the importance of the privacy of certain communications, developed privileges prohibiting the government from compelling disclosure of such communications.