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(6.58) Who can be present during the due process hearing?

(6.58) Who can be present during the due process hearing?

You have the right to have the hearing open or closed. [34 C.F.R. Sec. 300.512(c)(2); 5 C.C.R. Sec. 3082(f); Cal. Ed. Code Sec. 56501(c)(2).] If the hearing is open, members of the public can attend. Even if the hearing is open, you may still wish to request to have witnesses excluded from the hearing, so that they do not hear the testimony of other witnesses. [5 C.C.R. Sec. 3082(c)(3).] If the hearing is closed, members of the public cannot attend. A closed hearing usually consists of you (and your child if you want), your representative, the ALJ, the district’s representative and the district’s witnesses.

Testimony can be taken by telephone or other electronic means at the discretion of the ALJ if each participant “has an opportunity to participate in and to hear the entire proceeding” and to observe exhibits. [5 C.C.R. Sec. 3082(g).] In practice, as long as a particular witness has a copy of the exhibits relevant to their testimony and is available for questioning by both sides, the ALJ will not require that this witness sit through the entire hearing. If you intend to present any testimony by electronic means, you should make sure you have the ALJ’s permission to do so well in advance of the hearing. This is usually discussed at a pre-hearing conference where the logistics and any other concern can be addressed. Since the ALJ may deny your request, you should be prepared to explain the importance of the witness’ testimony and why the circumstances make it extremely difficult or impossible to have the witness appear in person.