California OAH special education order · September 8, 2023

Order Denying Motion to Quash

OAH Case No. 2023050768 · ALJ June Lehrman

OAH refused to strike a district psychologist's hearing testimony over an alleged conflict of interest, ruling that credibility challenges affect the weight of evidence, not whether it is admissible.

Denied Evidence and witnesses

This case went to decision

Student v. Fremont Unified School District: Fremont Unified wrongly stopped serving an adult student who moved out of state; must fund driver's training and train staff. (2023)

Summary

Fremont called Licensed Educational Psychologist Sherry Burke as a percipient and expert witness on the fourth day of the due process hearing. Student then moved to quash, dismiss, or remove her testimony, citing a conflict of interest, and Fremont opposed. The ALJ denied the motion. The testimony was given under oath, Student had the chance to cross-examine and impeach her, the testimony was relevant, and its value was not outweighed by undue consumption of time.

Why it matters

A witness's bias or conflict of interest is usually not a reason to throw out testimony at an OAH hearing. Parents should raise these concerns through cross-examination and closing argument to reduce how much weight the ALJ gives the testimony.

Key authority cited

  • Gov. Code, § 11513, subd. (a)
  • Gov. Code, § 11513, subd. (b)
  • Gov. Code, § 11513, subd. (c)
  • Gov. Code, § 11513, subd. (f)

People named in the order

  • Sherry Burke, Licensed Educational Psychologist; District percipient and expert witness

Topics

motion to quash witness testimony expert witness conflict of interest credibility admissibility

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 MATTER OF:

PARENTS ON BEHALF OF STUDENT,

v.

FREMONT UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2023050768

ORDER DENYING MOTION TO QUASH

SEPTEMBER 8, 2023

During the fourth day of the due process hearing in this matter, on August 29, 2023, Fremont Unified School District called witness Sherry Burke, Licensed Educational Psychologist, to testify as a percipient and expert witness. On August 31, 2023, Student filed a “Motion To Quash, Dismiss And/Or Remove From Consideration Sherry Burke's, Ed. D. Testimony -- Conflict Of Interest,” in which Student challenged the credibility of Ms. Burke’s testimony. On August 31, 2023, Fremont opposed.

The motion is denied. Credibility determinations are within the discretion of the administrative law judge and do not warrant exclusion of evidence. Ms. Burke’s testimony was taken under oath. (Gov. Code, §11513, subd. (a).) Student had the opportunity to cross-examine the witness and to impeach her testimony (Gov. Code, §11513, subd. (b).) Her testimony, as a percipient and expert witness, was relevant.

(Gov. Code, §11513, subd. (c).) The probative value of the evidence was not outweighed by undue consumption of time. (Gov. Code, §11513, subd. (f).)

Therefore the evidence is admissible and shall not be excluded. Student’s arguments go to the weight of the evidence, not its admissibility.

IT IS SO ORDERED.

June Lehrman Administrative Law Judge Office of Administrative Hearings