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Tuesday, February 28, 2012

Children permitted to testify as witnesses in a disciplinary arbitration

Children permitted to testify as witnesses in a disciplinary arbitration
Stergiou v New York City Dept. of Educ., 2012 NY Slip Op 50291(U), Supreme Court, New York County, Justice Shlomo S. Hagler

One of the issues in this Article 75 of the Civil Practice Law appeal from an adverse disciplinary arbitration award was the arbitrator’s permitting 8-year old third grade students to testify in a disciplinary hearing “because she believed that they were competent witnesses.” The arbitrator excluded the accused teacher from the hearing room while the students were testifying but permitted the teacher’s attorney to cross-examine them.

Justice Hagler, noting that under Education Law §3020-a the parties are subject to compulsory arbitration, said that the arbitration award must satisfy the tests set out in Article 75 and, in addition, also satisfy further judicial scrutiny in that it "must have evidentiary support and cannot be arbitrary and capricious."

Addressing the teachers argument that the arbitrator permitted incompetent witnesses to testify and failed to let her “confront the witnesses,” Justice Hagler said that the “courts are the gate-keepers in ensuring that only competent witnesses may testify under oath” and children may testify “after a preliminary examination gauging the capacity and intelligence of the child, the appreciation of the difference between right and wrong, and the obligations of taking an oath.”

The court then quoted United States Supreme Court Justice Brewer’s statement in Wheeler v United States, 159 US 523, that "The decision of this question rests primarily with the trial judge [or hearing officer], who sees the proposed [child] witness, notices his manner, his apparent possession or lack of intelligence, as well as his understanding of the obligations of an oath."

Justice Hagler found that the arbitrator conducted an adequate voir dire or preliminary examination into each witnesses’ competency and was able to gauge their level of understanding, ability to tell the truth and to take an oath. In addition, said the court, the arbitrator’s “line of inquiry was satisfactory” and the teacher’s counsel “did not seek any voir dire whatsoever into the minor witnesses competency.”

Further, Justice Hagler held that “Even assuming arguendo that the [arbitrator] did not have a proper foundation for children's testimony, the [she] was not bound by the strict rules of evidence and was permitted to elicit such testimony that she believed would be just and proper under the circumstances.”

As to the teacher’s claim that she was denied her due process rights to hear the testimony or confront the eight (8) year old witnesses, the court said that she “did not have an absolute right to do so in the context of an arbitration/administrative disciplinary hearing,” citing Matter of Abdur-Raheem v Mann, 85 NY2d 113.

The decision is posted on the Internet at:

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