---
kind: "section"
citation: "38 C.F.R. § 42.33"
title: "38"
number: "42.33"
heading: "Witnesses."
url: "https://uscodex.org/cfr/38/42.33"
---

# §42.33. Witnesses.

- (a) Except as provided in [paragraph (b)](#b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
- (b) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena the witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in [§ 42.22(a)](/cfr/38/42.22.md?p=a) of this part.
- (c) The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
  - (1) Make the interrogation and presentation effective for the ascertainment of the truth,
  - (2) Avoid needless consumption of time, and
  - (3) **Protect witnesses from harassment or undue embarrassment.**
- (d) The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
- (e) At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of the direct examination. To the extent permitted by the ALJ, cross-examination on matters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party.
- (f) Upon motion of any party, the ALJ shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize the exclusion of—
  - (1) A party who is an individual;
  - (2) In the case of a party that is not an individual, an officer or employee of the party appearing for the entity pro se or designated by the party's representative; or
  - (3) An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government.

## Notes

### Authority

Authority: Pub. L. 99-509, secs. 6101-6104, 100 Stat. 1874, codified at 31 U.S.C. 3801-3812.

### Source

Source: 53 FR 16710, May 11, 1988, unless otherwise noted.