Forum: Protest Hearing Procedures
The proper time and/or right for Parties to provide the Jury their Rule applications/interpretations ...
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Angelo GuarinoNationality: United States
Certifications:
- Regional Judge
- Fleet Measurer
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I think it's fair to say that we all endeavor to run hearings in a fair but also efficient manner. To that end, we try to curb parties from:
- continuously repeating themselves,
- asking leading questions,
- using their "question-time" to repeat their testimony, and
- keeping to "the facts" when they are given opportunity to describe the incident in their terms.
We run our hearings in very much the same model and basically the same sequence (Appendix M) we all know.
But, Appendix M is "only advisory" and even in its title they are "Recommendations".
If you look at what is in Rule 63, which actually dictates what is required regarding the conduct of the hearing, it is quite brief and boils-down to just 3 things [bullets added]
63.6. Taking Evidence and Finding Facts
- The protest committee shall take the evidence of the parties present at the hearing and of their witnesses and other evidence it considers necessary [...]
- A party present at the hearing may question any person who gives evidence.
- The committee shall then find the facts and base its decision on them.
But what is "evidence"? The word "evidence" (undefined by the RRS) is defined in Merriam-Webster as ...
Definition of evidence
a : an outward sign
b : something that furnishes proof
Can "evidence" be interpreted as excluding "opinion" about the rules?
If you look at the last line of M3.2, the use of "particularly" would imply a broader definition of evidence which includes the rule opinions of the parties ... also "particularly" seems to imply an importance to their inclusion.
M3.2 (last line) " Invite first the protestor and then the protestee to make a final statement of her case, particularly on any application or interpretation of the rules.".
Now to the questions:
- Can the Chair of the Jury limit the interpretation of "evidence" such that it is limited to only the facts of the incident and information which relates to those facts?
- Can the Chair cut-off/redirect testimony of a party (in an attempt at expediency and to keep things on task) when the party attempts to integrate the rules they believe apply when recounting the incident, limiting the party to describing only "what happened"?
- If "yes" to either 1 or 2, does a party have the right to provide their opinion of how the rules applied in the incident before the hearing closes?
- If so, can the party replay their previous testimony (even though it is redundant) and integrate their rule interpretations if that manner and style is more comfortable for them?
Comments
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The panel can try to guide them toward that division but I don't know if you can entirely control it without being overly controlling or peremptory.
In protest hearings we avoid such formalism, and apply the term 'evidence' to whatever parties want to say or present.
The process described in Appendix M, on a purist model would have all the 'evidence' of the parties and their witnesses, relating to facts, and the parties 'summaries' at the end including a brief summary of the facts for which they contend (and why) and how they think the rules apply to those facts (and why).
It's more than flesh and blood can stand to expect some parties not to start talking about rules early in the process.
I think Tim puts it very nicely when he says the chair needs to control the hearing 'without being overly controlling or peremptory'.
Angelo Guarino
I am very delicate about this. The more people say the more people contradict themselves: that's valuable to the protest committee, and stopping people telling their story in their own way is not a good idea, and may well lead to allegations of unfair process. When parties or witnesses are rambling, I might put my oar in, and say something like 'you already seem to have covered that', but I think a very light touch is needed.
I'm happy to stamp on this when it comes up. I might say "I don't think that is a fair question. You may put your question about ... in another way."
Likewise I will stamp on this the very first time it happens. I might say "Now is the time for asking questions, please stick to just asking questions".
As for 1, I'm not happy about restricting parties from describing things in their own terms.
It would be very unwise to do so. It's just begging for an appeal on due process grounds.
I don't think so, nor do I think it is a good idea. Why would you want to? Just let them tell the tale.
Of course the parties have the right to explain to the protest committee how they think the rules apply to the facts. We want them to do that, it's a guard against the committee making mistakes.
Though I understand the desire to move the hearing along, I agree one must be careful not to stifle the parties or make them feel incompetent or intimidated, which is easy to do as many parties come into the room in a stressed condition