holding that the absence of the formal requirement of a notarization in sworn affidavits did not invalidate the statements or render them inadmissible since they were actually sworn to before an officer who was authorized to administer an oath and who testified at subsequent hearing to the procedures followed
How later courts described this case
- holding that the absence of the formal requirement of a notarization in sworn affidavits did not invalidate the statements or render them inadmissible since they were actually sworn to before an officer who was authorized to administer an oath and who testified at subsequent hearing to the procedures followed
- “A basic rule of evidence is that the party offering testimony has the burden of the evidence to see that it is admissible.”
- quoted in Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985)
Written by the judges who cited it.
The opinion
NICHOLS, Judge
(concurring):
Common sense compels the conclusion that the Congress intends a tribunal to receive hearsay testimony if it requires that tribunal to ascertain facts without endowing it with the subpoena power. Should we apply, in reviewing decisions by that tribunal, the evidentiary rules an appellate court would apply to the decisions of a trial court, we would either make it impossible for the Government to get rid of faithless or corrupt employees, or else force the Congress to be far more liberal than it has been in granting subpoena power. Yet there are other rights to be considered: It may be that potential witnesses have a right not to be dragooned hither and yon by administrative tribunals, unless the necessity of their having that power is clearly domonstrated to the Congress.
The framers of regulations for administrative tribunals have endeavored to grapple with this problem and have come up with varied solutions. We have before us a regulation of the Williams v. Zuckert, 372 U.S. 765 , 83 S.Ct. 1102 , 10 L.Ed.2d 136 (1963) type. It allows hearsay under certain conditions which are intended to minimize its bad effects and maximize its dependability. We have had that type of regulation before us many times. The cases are cited and discussed in Fletcher v. United States, 392 F.2d 266 , 183 Ct.Cl. 1 (1968). In that case, as in Glidden v. United States, 185 Ct.Cl. 515 (decided October 18, 1968), and in Conn v. United States, 376 F.2d 878 , 180 Ct.Cl. 120 (1967), we had to apply differently worded regulations which we have construed as intended to erect additional safeguards against hearsay. But in no case in this field that I know of did any regulation attempt to limit the reception of hearsay to the hearsay exceptions allowed in courts of law, nor have we or other courts until now, imposed such a requirement. We should think long and hard before we begin. It follows that to reach the result we do in this ease, it is in no way necessary to bring this case within any hearsay exception recognized in law *728 courts, and I find that part of the court opinion somewhat strained as well as unnecessary.
As to substantiality and credibility, it is well known, I believe, that there is peculiar difficulty in proving cases of petty shakedowns by public employees, such as we have alleged here. The only available witnesses usually are those who were shaken down. They are more likely to tell the truth when first approached than they are later. At that time they regard being shaken down as the experience of everybody, which they can discuss without embarrassment. The shaker down sedulously conveys that impression. I would, therefore, regard a series of mutually corroborative sworn statements, reflecting a common technique on the part of the offender, as highly credible. That it could not be used to convict him of a crime is neither here nor there: the question to be decided is, do we want him as a public servant? The only real difficulty is whether the receipt of the involved evidence was in conformity to the regulation governing operations of the tribunal involved.