The hearsay rule is a traditional rule of evidence that is designed to keep speculative evidence out of the record. This informal type of evidence was usually beneficial to the defense in an enforcement case because it allowed a more informal style of testimony to be admitted in NTSB hearings. Needless to say, it was also beneficial to the enforcement side of the case. Some might consider this change to be a problem for the defense side in these hearings but I and others believe it will not be a significant impediment to presenting an effective defense, certainly if the airman is represented by counsel. The hearsay rule has many exceptions that lawyers routinely use to bring in otherwise inadmissable evidence.
2. The second item of interest is the matter dealing with notification to the airman. It says that, the Administrator shall provide timely, written notification to any individual who is the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate under Chapter 447 of title 49 US Code. (Deals with sanctions on certificated airmen.) This section has always been the rule and the Administrator with few exceptions has generally followed this procedure.
The notification by the Administrator must describe the nature of the investigation. In addition, the fact that an oral or written response to the notification is not required and that no action will be taken or adverse inference taken against an individual for declining to respond. More importantly, the Administrator must also now state clearly that “anything you say in your response may be used as evidence against you,” like a traditional Miranda warning. This has always been the case but few airmen were aware of it.
3. The law goes on to say that the airman can obtain the so-called releasable portions of any investigation report and in addition any air traffic data, relevant to a case, including recordings of ATC communications. This also has always been the case, but you had to ask for the information. For a mechanic’s case it of course could include any maintenance records relevant to the charges including FBO records and any other records.
For the most part, this information has always been available to the airman. The one item that was usually omitted however was the matter of your written or oral statements being used as evidence against you. All the defense lawyers knew this of course but it was not made clear by the Administrator. Now it will be. Hence, if you have a lawyer on your side he will usually urge you to say nothing. You generally have nothing to gain and a lot to lose by making a statement by telephone or letter. You should be aware that most if not all conversations with personnel at an FAA office are recorded; keep this in mind anytime you call or discuss anything with an inspector. He will always make a written record of what you say, about anything.
This part of the law also includes the rather fuzzy statement that “the Administrator may delay timely notification (of the information noted above) if the Administrator determines that such notification may threaten the integrity of the investigation.” We can only guess at what this means.
Air traffic data
Although all air traffic data has been generally available in the past there is one significant item that is new. In the past, there were times where a contract control tower company refused to provide information or tapes relating to an incident or accident simply because they were not FAA employees and therefore not subject to the Freedom of Information Act (FOIA) which only applies to federal agencies and employees. They were exercising their rights and they were obviously concerned about their tort liability under the law and their right to be protected under the 5th Amendment, which involves self-incrimination.
Now, as a result of this law, any individual subjected to an investigation for action against his or her airman certificate may obtain any air traffic data, including tapes, radar data, controller statements, flight data, investigative reports, and any other traffic or flight data from an FAA or a contract tower, or a contract flight service station.
Again, needless to say, you must keep accurate records of any event, including, but not limited to, names, time, location, and date of any occurrence, and forward this information with your phone number to the Administrator. Also, you must keep in mind that time is of the essence. The Administrator may not proceed against you (e.g. by way of a certificate action or otherwise) during the 30-day period beginning on the date on which data required is made available to you. There is an exception in the case of emergency action suspending or revoking your certificates (49USC 44709e2).
Some practical observations on the Pilots Bill of Rights
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