Get the Most Out of Your Character Letters
Character letters are typically worth their weight in gold when defending your license. But heed the following advice to make sure that they do not create more problems than they are trying to solve.
One of the most common forms of evidence used in defending oneself at a professional licensing disciplinary hearing are letters of support. Letters of support (or "character letters") are often used in lieu of live testimony, especially when used to demonstrate the licensee's or applicant's good character.
However, it is important that certain elements be present in the letter to be most effective. This will ensure that the court can consider the letter and can give the letter the most weight possible.
Character Letters are Hearsay
First and foremost is to understand that letters of support are, in fact, hearsay. Hearsay evidence, simply stated, is a statement made outside of court that one of the parties is trying to introduce in court to show that the statement is true. In most circumstances, hearsay is not admissible because there is no real opportunity to cross-examine the speaker about the statement being made.
However, luckily there are a number of exceptions. And in administrative proceedings there is one specific exception that will always permit such character letters into evidence. Specifically, California Government Code, section 11513, subdivision (d), provides that hearsay evidence is admissible in administrative hearings. But it comes with a catch - the administrative hearsay cannot be the basis for the administration’s finding without corroboration of the contested out of court statements.
This means that if you are attempting to establish your good character solely through character letters, it will need to be supplemented by something else in order for the administrative law judge to base its determination on that evidence. More likely than not that "something else," would be your own testimony. This testimony would verify your relationship with the individual author of each character letter and provide context to the sentiments contained therein.
Character Letters can still be Attacked
Even though the character letters are considered hearsay and their reliability is questioned because the author cannot be fully cross-examined, the letters can still attacked. Specifically, letters lacking signatures can be questioned for their authenticity. Letters lacking dates can be questioned about the timing of when the letter was given--e.g. was this letter provided before or after you were charged with the underlying misconduct warranting the license disciplined. Moreover, letters lacking reference to the underlying Accusation, Statement of Issues, Petition to Revoke Probation, or Citation can also be attacked as being given out-of-context. And illegible letters can be attacked as being illegible and not conveying what it is that you are attempting to convey.
So, the best way to deal with these potential avenues of attack is to make sure each letter is:
Addressed to the licensing agency (e.g. Department, Board, Bureau, Commission, Committee, etc.)
References the underlying pleading and causes for discipline
References that the endorsement or compliments are being given despite knowledge of the underlying pleading and causes for discipline
States that the letter is being given "under penalty of perjury"
Printed Name of Signor contained on the letter
Ensuring the character letters have these components decreases the likelihood that they will be attacked on these form issues. More than likely the letters will be admitted as administrative hearsay without any objection or even comment from the other side.
Defect? Cure with a Declaration
If you receive a great character letter but it contains one of the above-described defects, rather than asking the author to re-write the letter, you can prepare and ask them to sign a declaration.
A declaration is a statement, sworn under penalty of perjury, that is often used as a means of providing testimony in writing. It is also used to authenticate documents. In California, it contains the same weight as an affidavit, which is basically a declaration authenticated by a notary public.
The declaration can be used to address any of the above defects by just ensuring that it includes statements addressing any questions as to the timing, authenticity, substance, and relation to the underlying causes for discipline.
Convert Character Letters into Testimony
The final thing you should contemplate doing is attempting to get your character letters admitted as testimony. So long as the letter--or curing declaration--convey that the statement is being given under penalty of perjury, the character letter is just as if it were testimony, but with one caveat. It has not faced cross-examination.
Luckily, the Administrative Procedure Act provides a mechanism to permit either side to convert letters of support into testimony. At any time 10 or more days prior to the hearing, you may mail to the opposing party a copy of any declaration that you propose to introduce into evidence as testimony. Unless the opposing party, within seven days after such mailing or delivery, mails or delivers to you a request to cross-examine the declarant, the opposing party's right to cross-examine is waived. And then the declaration is given the same effect as if the affiant or declarant had testified orally. See Government Code, section 11514.
There is specific language that must be used in providing this notice (see Gov. Code, section 11514(b)) and the Office of Attorney General typically objects and requests to cross-examine. However, sometimes they do not. And then you get the added bonus of your declarations being testimony!