respectfully dissenting and concurring with the Court of Appeals’ majority opinion.
OPINION
SUTIN, Judge.Gomez appeals a Fair Hearing Decision of the Human Services Department. We reverse.
Gomez’ AFDC benefits were terminated as a result of a telephonic hearing conducted by the hearing officer and his report to HSD. Prior to the hearing, Gomez, by mail, stated:
We again insist that the requested hearing must be held in person to satisfy due process requirements since the decision clearly depends on Mr. Gomez’ credibility, which cannot be judged over the telephone * * *.
In response, the hearing officer stated:
During the Pilot Project testing the use of telephone conferences in Fair Hearings, one of the requisites of the Pilot Model was that a client might refuse to consent to a telephone hearing. However, based on the results of the Project and limitations imposed by time and the budget, the Department has designated certain counties where Fair Hearing will be held only by telephone * * *.
I have accordingly scheduled a hearing for your client for November 10, 1981 at 10:00 A.M. * * *.
On the morning of the hearing, the hearing officer, by telephone, read both letters into the record. Gomez made it clear on the record that he was still in opposition to the telephone hearing. The hearing officer proceeded with the telephonic hearing.
The hearing officer has the power of “examining witnesses.” Section 27-3-3(C), N.M.S.A.1978 (1982 Repl.Pamph.). The examination of a witness consists of the series of questions put to him by the hearing officer for the purpose of bringing before him the knowledge which the witness has of the fact and matters in dispute, or of probing and sifting his evidence previously given. See, Black’s Law Dictionary (Rev. 4th Ed. 1968) p. 664. In a telephonic hearing, a hearing officer can examine witnesses but cannot observe them. A telephonic television hearing would afford a public officer the opportunity to observe the demeanor of a witness.
Black’s Law Dictionary (Rev. 4th Ed. 1968) p. 517 defines “Demeanor”:
As respects a witness or other person, relates to physical appearance. [Citation Omitted.] It embraces such facts as the tone of voice in which a witness’ statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expression, his yawns, the use of his eyes, his furtive or meaning glances, or his shrugs, the pitch of his voice, his self-possession or embarrassment, his air of candor or seeming levity. [Citation Omitted.]
“ ‘The tongue of the witness,’ it has been said, ‘is not the only organ for conveying testimony.’ ” Frank, Law and The Modern Mind, p. 109 (1936).
“Demeanor evidence may be a great weight in determining who is telling the truth.” State v. Engstrom, 226 Minn. 301, 32 N.W.2d 553, 559 (1948).
The failure of a hearing officer or trial examiner to observe the demeanor of witnesses denies a party due process of law. S. Buchsbaum & Co. v. Federal Trade Commission, 153 F.2d 85 (7th Cir.1946). Supplemental opinion, 160 F.2d 121 (1947); U.S. v. Raddatz, 592 F.2d 976 (7th Cir.1979); Smith v. Dental Products Co., 168 F.2d 516 (7th Cir.1948); Shawley v. Industrial Commission, 16 Wis.2d 535, 114 N.W.2d 872 (1962); Trzebiatowski v. Jerome, 24 Ill.2d 24, 179 N.E.2d 622 (1962).
Buchsbaum involved a hearing before the Federal Trade Commission based upon testimony obtained by one trial examiner who died. A second trial examiner completed the taking of the testimony, closed the ease and made his report to the commission. The court said:
Indeed, under those authorities the Commission should disregard the finding of the Examiner if he had not complied with the rule of confrontation, and that is the precise question which confronts us. Congress has authorized the appointment of Examiners in such cases and they are the eyes and ears of the Commission. There is no complaint as to this delegated power, but it certainly cannot be said that the appointment would free the Examiner from the duty of observing the demeanor of witnesses, for this would amount to a lack of due process to which petitioner is entitled. [Id. 87.]
In Smith, the hearing officer was a master who died before making any finding or report. A transcript of the evidence was lodged with the district judge upon which a final judgment was entered. The court followed Buchsbaum. The Smith court said:
The reason for the rule is applicable here; the deciding officer, whether administrative in character or judicial, has a real function to perform in due process. The defect is one going to the right of the parties to have a decision from the agency having jurisdiction upon the merits upon testimony submitted by witnesses whom the trial tribunal has seen and heard. [Id. 519.].
As Raddatz said:
Our reading of the record convinces us of the wisdom of the traditional practice. The record here does not reveal a pattern of facts that exposes the defendant’s testimony as wholly incredible. Thus the truth cannot be derived from this written record without an intolerably high margin of error — a margin of error that time-honored tradition teaches can be substantially reduced by simply requiring the trier of fact to hear and observe the witnesses. [Id. 983-4.]
Gomez was heard but not seen. He was denied due process of law.
Judge Wood points out in his dissent that “demeanor” of a witness is not an aspect of the constitutional right of confrontation. We agree. The Confrontation Clause of the Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Its primary object is to compel an adverse witness, not an accused, to stand face to face with the jury in order that they may look at him and judge by his demeanor whether he is worthy of belief. But this rule must occasionally give way to considerations of public policy and the necessities of the case. “The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.” Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895). A witness not present at trial should not allow an accused to go scot free when the witness’ former testimony is available. The rights of the public demand it. Therefore, the demeanor of the witness is only an incidental benefit of the accused.
The Confrontation Clause does not involve the demeanor of an accused who takes the witness stand. A jury would not be allowed to sit in a jury box outside the court room and listen by telephone to the accused’s testimony. Under due process of law, the demeanor of an accused is an essential ingredient in the determination of his guilt or innocence.
Judge Wood relies upon Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In each of these cases, no evidentiary hearing was held prior to termination of public assistance or disability benefit payments to a recipient. The recipient had not testified. The demeanor of the recipient was not an issue. The question for decision was whether the Due Process Clause of the Fifth Amendment required that the recipient be afforded an opportunity for an evidentiary hearing before the termination of social security public assistance or disability benefit payments. Goldberg states that the recipient may request a post-termination “fair hearing”, that
[tjhis is a proceeding before an independent state hearing officer at which the recipient may appear personally, offer oral evidence, confront and cross-examine the witnesses against him, and have a record made of the hearing. If the recipient prevails at the “fair hearing” he is paid all funds erroneously withheld. [397 U.S. 259-260, 90 S.Ct. at 1016.]
The instant case is involved with a post termination “fair hearing” procedure, not with whether a recipient should be afforded an evidentiary hearing before termination of benefits. Goldberg and Mathews have no bearing upon the due process issue in the case before us.
Before the close of the case, Gomez requested that the record be kept open for 10 days to allow the submission of a doctor’s report concerning the re-examination of Gomez before the hearings. The hearing officer granted the request. The hearing was adjourned. The report was filed on December 4, 1981, and made a part of the record as Exhibit F. Appearing in the record as Exhibit G, dated January 12, 1982, was a memorandum to the hearing officer, the subject of which was: “Review of Post-Hearing Medical Evidence.” It recites that the Incapacity Review Unit made a careful review of existing medical reports, the new medical report submitted by Gomez and the fair hearing transcript. Each of the doctors’ opinions were summarized and the memorandum concluded that:
The IRU has determined that the client is able to work, that he is not disabled * *.
In the report of the hearing officer to HSD, it stated:
3. After the hearing I requested that the IRU review the transcript and the latest medical report submitted .... This was the third review by the IRU, of the client’s case. Attached as Exhibit G are IRU’s findings supporting their original decision of denial made in February 1981, and again in October 1981.
In his findings of fact, the hearing officer stated:
6. The IRU has reviewed the client’s medical reports and case record for a third time. * * * Medical Consultant to IRU, in each review found that the client is not disabled.
The report of the hearing officer was the basis upon which the “Fair Hearing Decision” was made.
The hearing officer did not submit the memorandum to Gomez nor re-set the case for another hearing at which time Gomez could examine and question the validity of the memorandum or object to its admission in the record. HSD argues that Gomez, by offering Exhibit F after the "hearing, waived any objection to Exhibit G and is estopped to deny the validity of acceptance into evidence of Exhibit G. We disagree. The hearing officer allowed Gomez to file Exhibit F. The hearing officer, one who sits as fair and impartial, who governs the proceedings initiated by the county, did not announce that Exhibit F would be reviewed by IRU, or that a memorandum would be prepared and admitted in evidence as Exhibit G. Neither did the county request it. Section 275.31 of the Income Support Div., Program Manual, Volume I states:
The right to a hearing includes the right * * * to have a hearing which fully safeguards the client’s opportunity to present his case * * *.
Section 275.472 states:
All information presented or used by the county office (or its witnesses, if any) during the course of the hearing must be heard by or, if written, must be available to the claimant or his representative for examination prior to the hearing as well as during the hearing itself. No other information may be a part of the hearing record or used in making a decision on the case. [Emphasis added.]
The county argues:
Since * * * it was Gomez, through counsel, who requested that the record remain open, it is clear that Gomez manifested an actual intention to relinquish his rights under ISD Manual § 275.472 * *.
This attempted escape hatch does not meet the challenge of § 275.472 nor the rules of administrative procedure. Neither Gomez nor the county had access to the memorandum. There is no hearing when a party does not know what evidence is offered or considered and is not given an opportunity to test, explain or refute. All parties must be fully appraised of the evidence submitted or to be considered and must be given an opportunity to inspect documents and offer evidence in explanation or rebuttal. Transcontinental Bus System v. State Corp. Commission, 56 N.M. 158, 241 P.2d 829 (1952). Hearings before administrative bodies need not be conducted generally with the formality of court hearings or trials, but procedures before such bodies must be consistent with the essentials of a fair trial. Ferguson-Steere Motor Co. v. State Corp. Com’n, 63 N.M. 137, 314 P.2d 894 (1957). See, First Nat. Bank v. Bernalillo Cty. Valuation, 90 N.M. 110, 560 P.2d 174 (Ct.App.1977), Hernandez, J., specially concurring.
Hillman v. Health and Soc. Services Dept., 92 N.M. 480, 590 P.2d 179 (Ct.App. 1979) presented a similar problem under the same regulation. At the end of the fair hearing, the hearing officer decided to refer a medical statement admitted in evidence to IRU for a recommendation. IRU concluded that the statement was completely inadequate. It recommended a psycho-diagnostic and orthopedic examination and requested a social summary to accompany the medical reports. Hillman refused upon the belief that her continued eligibility would be made on evidence outside the fair hearing. Her benefits were terminated. In reversing the “Fair Hearing Decision” this Court said:
The record * * * does not show that the hearing would be reopened in order to allow appellant to present her case in light of the resulting medical reports and accompanying social summary. In this situation, Section 275.31 demanded that appellee advise appellant of the availability of another hearing. Because appellee failed to inform appellant of this availability, appellant’s refusal to consent to the requested examination was justified. Therefore, Section 241.72 cannot be used as a lawful basis for terminating appellant’s benefits. [Id. 483, 590 P.2d 179.]
Hillman also stated:
We have already indicated that Section 275.472 requires the availability of examination as a requisite for inclusion in the record. Therefore, the availability to examine reports made pursuant to Section 275.472 is implicitly required in this section’s provision that they be “made part of the record.” [Id. 482, 590 P.2d 179.]
The difference between Hillman and the instant case is that the hearing officer in the instant case actually did that which was prohibited in Hillman. The memorandum was made a part of the record without examination by Gomez and the hearing officer failed to make another hearing available. The Department’s decision was not rendered in accordance with law.
The “Fair Hearing Decision” is reversed. Gomez is entitled to a hearing with the hearing officer present and presiding. AFDC and medicaid benefits of Gomez and his family shall be reinstated and paid in full from the date payments ceased and shall continue unless a fair hearing decision to the contrary is made.
IT IS SO ORDERED.
LOPEZ, J., concurs. WOOD, J., dissents.