California OAH special education order · January 10, 2020
Order Granting Motion to Exclude Testimony of Student
OAH Case No. 2019040734, 2019050092 · ALJ Rommel P. Cruz
OAH barred both parties from calling Student as a witness, finding his testimony would be cumulative and unnecessarily time-consuming; the District did not oppose.
This case went to decision
Student v. McCabe Union Elementary School District (consolidated): McCabe Union Elementary must reimburse a $4,778.96 IEE and fund compensatory services after wrongly finding a student with ADHD ineligible. (2020)
Summary
Parents, on Student's behalf, asked OAH to keep Student from testifying at the due process hearing. They argued his testimony would be irrelevant, cumulative, and time-consuming, and Student declared that testifying would cause him significant trauma and anxiety. McCabe Union filed a non-opposition. Using its discretion under Evidence Code section 352, OAH granted the motion: neither party may call Student unless the ALJ grants a written motion showing a compelling reason for his testimony.
Why it matters
Families can ask OAH ahead of the hearing to protect a child from testifying, especially when other evidence covers the same ground and a declaration describes the harm testifying would cause. A party that later wants the child's testimony must file a written motion showing a compelling need.
Key authority cited
- Evid. Code, § 352
- Gov. Code, § 11513, subd. (f)
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
IN THE CONSOLIDATED MATTERS OF:
PARENTS ON BEHALF OF STUDENT,
v.
MCCABE UNION ELEMENTARY SCHOOL DISTRICT,
OAH CASE NUMBER 2019040734
and
MCCABE UNION ELEMENTARY SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT,
OAH CASE NUMBER 2019050092
ORDER GRANTING MOTION TO EXCLUDE TESTIMONY OF STUDENT
On, January 6, 2020, Parents on behalf of Student filed with the Office of Administrative Hearings a motion to exclude the testimony of Student. The motion was supported by a declaration from Student. Student contends that his testimony is irrelevant, would result in cumulative evidence and would be unnecessarily time- consuming. In addition, Student declares that compelling him to testify at the hearing would cause him to experience significant trauma and anxiety. On January 7, 2020, McCabe Union Elementary School District filed a non-opposition to the motion.
The Administrative Law Judge has discretion to exclude any otherwise relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, create a substantial danger of undue prejudice, or result in confusing the issues. (Evid. Code, § 352; Gov. Code, § 11513 (f).) Here, Student’s testimony would result in cumulative evidence and would be unnecessarily time-consuming. Accordingly, the motion to exclude Student’s testimony is granted. Neither party may call Student as a witness at the due process hearing, unless the Administrative Law Judge grants a party’s written motion based on a compelling reason establishing the need for Student to provide his testimony.
IT IS SO ORDERED.
DATED: January 10, 2020 Rommel P. Cruz Administrative Law Judge Office of Administrative Hearings