Targeting Exculpatory Evidence to Defend Your License
Updated: Jan 31, 2020
Sometimes the Causes for Discipline concerning your license are false or erroneous. Learn more on how to obtain evidence to support this position in defense of your license.
Requirement - Notice and Opportunity to Be Heard
Before taking or impairing an individual's professional or occupational license, the underlying license agency must provide notice and an opportunity to be heard in response. That is the minimal due process requirement for disciplining or revoking someone license.
In California, that opportunity to be heard is in an administrative hearing. Most licensing agencies contract with the Office of Administrative Hearings to oversee that proceeding. Once assigned to the Office of Administrative Hearings, the matter becomes more-or-less a contentious legal proceeding. The licensing agency typically has the burden to prove its causes for disciplining your license. And it does so through by producing evidence and testimony to show that the licensee violated its professional practice act, regulations, or another portion of the law that is substantially related to the profession.
Making Sure You are Heard Effectively - Exculpatory Evidence
In cases where the cause for discipline is not really in dispute, the focus for the licensee is evidence of rehabilitation, mitigation, and good character. I went over that type of evidence in a prior blog post.
In cases where the licensee disputes the cause (or causes) for discipline, then another form of evidence takes on a more prominent role. This is evidence of exculpation or exculpatory evidence. Exculpatory evidence, in a professional licensing proceeding, is any evidence that is favorable to the licensee for purposes of disproving the cause for discipline.
What Does Exculpatory Evidence Look Like?
Exculpatory evidence can take many different forms. The most simple form is the licensee's own denial of having engaged in the alleged misconduct that makes up the cause for discipline. For example, if the licensee is accused of tampering with a medical chart, the licensee's denial of having done so is a form of exculpatory evidence.
Evidence that negates responsibility for what has been charged
Evidence that negates mental state (e.g. intent, recklessness, negligence) for what has been charged
Evidence that negates an element of what has been charged
Evidence that impeaches a witness testifying in support of the agency (i.e. impeachment evidence is simply a fancy way of saying any information that can be used to attack the credibility of a witness [e.g. bias, changing testimony, evidence that shows the witness's memory is fallible, etc.])
How do I get Exculpatory Evidence?
First and foremost, you. You, more so than anyone else, should be able to identify helpful evidence that you know exists. Initially, you will be the most knowledgeable person about your case. So, the first thing you need to do is pass a long all of that knowledge to your attorney. With that knowledge, your attorney can brainstorm and identify all sources of information and evidence supporting your narrative of what took place.
Second, you will get some through discovery. You have a right to request all information and documents in the possession of the licensing agency that will be used by the licensing agency, is regarding the identity of witnesses or evidence, or can be used to uncover witnesses or evidence. Keep in mind that there is a bit of "gaming," when it comes to acquiring this evidence from the agency--sometimes you will be required to compel its production.
Third, you and your attorney both need to thoroughly review the discovery that is provided. Often, the materials turned over by the agency shows that other, more favorable evidence exists. Or that there are other witnesses who may be more helpful to you or even more credible than the witnesses identified by the state.
Fourth, you and your attorney need to investigate. As surprising as it may seem, the agency is not looking out for you and attempting to exonerate you from the alleged cause for discipline. Rather, it is looking to discipline or revoke your license, and will be looking for evidence and witness to help them do so at your hearing. "Investigate," includes things like interviewing witnesses, obtaining documents (through subpoena or other means), and hiring experts if necessary. Investigation will often reveal helpful information, or expose weaknesses in the agency's case. Sometimes, it will reveal entire categories of helpful evidence that no one knew existed.
Still Need Evidence of Rehabilitation, Mitigation, and Good Character
The most common oversight I see in these types of cases is the singular focus on exculpatory evidence. The licensee's mentality is, "I did not do what they are accusing me of, so I do not want to imply otherwise by compiling and submitting this apology evidence."
That is extremely foolish. The likelihood of you compiling evidence EXONERATING you of the cause for discipline is remote. If you establish exonerating evidence, then the agency would likely dismiss the case before the hearing. So, the case in chief if going to be a close one.
So, even if you do a great job compiling exculpatory evidence, there could still be a chance that the administrative law judge decides the case against you. Or the licensing agency overrides the administrative law judge and decides to impose discipline anyway--which they have the authority to do.
Thus, evidence of rehabilitation, mitigation, and good character is still essential. It is still required because even if offered in the alternative, it has to be considered. And if considered, will likely reduce the discipline to be imposed.
When denying causes for license discipline, you NEED exculpatory evidence. And there is never a moment you will have too much exculpatory evidence. Rather, the more you can overwhelm the licensing agency, the merrier.