Presented by Adam Fisher, Jr., EsquireFisher Law Firm, Greenville, South Carolina

Created by Justice W. Michael “Mick” GilletteOregon Supreme Court (senior judge)

Evidence Fundamentals

Why do we discuss evidence and the strict

Rules of Evidence when they often don’t apply in an

administrative hearing?

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What is the Purpose of Evidence?

To prove the existence or nonexistence of a fact;

To induce a belief in the mind of the hearing officer that the party’s account of the events is true; and

To induce a belief in the mind of the hearing officer that the party’s contention or argument is valid.

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What is Evidence?

Any type of proof presented in your hearing in order to prove an alleged fact or proposition.

The means by which any fact in dispute is established or disproved.

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What Evidence is Not:Assertions are not evidence. They are

merely allegations or contentions.Arguments are not evidence but are

often offered posing as evidence. They may be a party’s (or their counsel’s) attempt to offer misleading testimony.

A party’s (or their counsel’s) suggestion or speculation as to other possible but unsupported factual explanations of events is not evidence.

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How is Evidence Presented?1. Through the testimony of

witnesses—live persons who report on facts.

2. Through documents—writings of all kinds, including electronic writings.

3. Through tangible objects—things of all kinds or, more commonly, photographs of things.

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Categories of EvidenceDirect evidence proves a fact by

its existence (e.g. gun) or directly describes a fact or event through the sworn testimony of an eyewitness

Indirect (circumstantial) evidence implies the existence or nonexistence of a fact (e.g. powder residue on the hands is indirect evidence the person fired a gun)

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Types of EvidenceTestimonial evidence – Communicative:

oral evidence, gestures, sign languageDocumentary evidence – records,

receipts, etc.Real evidence – relevant, tangible

thingsDemonstrative evidence – has probative

value of its own, although testimony may be needed to explain its value

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Rules of AdmissibilityFederal Rules of EvidenceState Rules of EvidenceFederal Administrative Procedures

Act State Administrative Procedures ActSpecific agency organic acts

(statutes)Agency rules (regulations)

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Standards for Admissibility Admissibility is case specific. It’s

determined bya. Applicable substantive lawb. Pleadings (notice of violation, notice

of suspension/revocation, hearing notice)

c. Background of the case & the partiesd. Potential or actual questions of

credibility

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Standards for Admissibility Admissibility is case specific. To be admissible evidence must

be “relevant” and/or “material.” In administrative hearings, the

general or preferred policy favors admissibility; therefore the focus becomes what is not admissible.

Relevant evidence may be excluded from jury trials if it’s more prejudicial than probative. 1111

Hearsay EvidenceHearsay Evidence

Hearsay Definition Under Hearsay Definition Under the Rules of Evidencethe Rules of Evidence

Hearsay: A statement, other than one made by the declarant while testifying in a hearing, offered in evidence for the purpose of proving the truth of the matter asserted (what is at issue in the hearing).

Popular But Popular But IncorrectIncorrect Definition of Hearsay:Definition of Hearsay:

Any evidence which depends on the credibility of someone who cannot be cross-examined for its probative value (i.e. if the declarant isn’t present at the hearing to be cross-examined, the statement is not admissible)

There’s Silly Hearsay…There’s Silly Hearsay…

There’s Interesting There’s Interesting Hearsay…Hearsay…

There’s Gossipy Hearsay…There’s Gossipy Hearsay…

…and there are very good and there are very good reasons why we don’t admit reasons why we don’t admit some hearsay.some hearsay.

Admissibility of Hearsay Hearsay is generally admissible in

an administrative hearing unless– It’s precluded by statute– It lacks the requisite reliability for admission

Most APAs omit hearsay from the list of evidence that should not be received

Requisite reliability: the kind of evidence reasonably prudent persons rely on for the conduct of their serious affairs. 1919

Non-Hearsay Statements:Non-Hearsay Statements:

An admission by a party to the hearing. Statements offered for purposes other

than to prove a fact at issue in the hearing.

Nonassertions: An utterance that merely implies a fact is not hearsay. Examples:

FBI answers phone at suspected bookie’s house—people placing bets.

Police officer answers drug suspect’s phone and hears “Did you get the stuff?”

Hearsay, But “Good” Hearsay, But “Good” (Admissible) Hearsay:(Admissible) Hearsay:

Hearsay to which no objection has been raised

Hearsay covered by an exceptionVerbal Acts: Hearsay testimony offered

not to prove the truth of the matter but to prove the words were spoken. Examples:

To prove the state of mind of the declarant

Explain conduct of a third person

Hearsay, But “Good” Hearsay, But “Good” (Admissible) Hearsay:(Admissible) Hearsay:

Hearsay which is reliable or trustworthy in nature, such as:

Hearsay corroborated by other independent and non-hearsay evidence (e.g. police officer’s visual observations)

Hearsay is admissible for the purpose of corroborating other non-hearsay evidence

Hearsay, But “Good” Hearsay, But “Good” (Admissible) Hearsay:(Admissible) Hearsay:

Hearsay which is from a reliable or trustworthy source, such as:

Police officer (e.g. one officer to another even if other officer is off duty)

Informant (but cannot base the facts of the case solely on that hearsay; must be based on totality of circumstances)

Hearsay Exceptions,Hearsay Exceptions,Declarant Available:Declarant Available:

Present Sense Impression Excited Utterance (spontaneous

reaction to sufficiently startling experience)

Then Existing Mental, Emotional, Physical Condition

Recorded Recollection Vital Statistics Records Family & Religious Organization Records Records of Interest in Property

Hearsay Exceptions,Hearsay Exceptions,Declarant Available:Declarant Available:

Ancient Document Market/Commercial Reports Learned Treatises Judgment of Previous Conviction Other Judgments (if relevant) Reputation as to Character (if

relevant) Records of Interest in Property

Hearsay Exceptions,Hearsay Exceptions,Declarant Unavailable:Declarant Unavailable:

Former Testimony Statement Under Belief of Impending

Death Statement Against Interest Statement of Personal or Family

History Forfeiture by Wrongdoing

Residual Hearsay ExceptionResidual Hearsay Exception: Statement not covered by any exception, but still trustworthy, can be admitted if:

The statement is offered as evidence of a material fact;

The statement is more probative on the point for which it is offered than any other reasonably procurable evidence;

The general purpose of the hearsay rule & the interests of justice will be served by admitting it.

Foundation Preliminary requirement that must

be met before evidence can be admitted.

Laying a foundation: the process of determining whether the evidence offered is connected with some issue in the proceeding and is offered in a permissible form.

Kind of foundation to be laid depends on the nature of the evidence offered. 2828

Foundation for Lay Witnesses1. Must be able to testify from personal

knowledge.2. Must be able to perceive events

through one or more senses.3. Must be able to recall what they

perceived.4. Must be able to report what they

recall.5. Must be able willing and able to tell

the truth after an oath or affirmation.2929

Foundation for Expert Witnesses

Inquiry must be made regarding: Previously qualified to testify as an

expert regarding the same subject at issue in your hearing?

Level of education Training Experience Expertise

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Foundation for Documents If the document is one that has

been kept in the regular course of business, authentication by the custodian of the document or a live witness who has seen the document is needed.

If the document is a government document, authentication/foundation may be shown by a certification from the document’s custodian. 3131

Foundation for Objects May be identified by a witness as

“the” object the witness referred to in his/her testimony.

If the object is one of many of the same/similar objects or one that could be easily altered, it may be necessary to establish the “chain of custody” (history of possession) of the object.

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Burden of Proof

The purpose of evidence is to prove something. But who must prove it? The party with the obligation to establish in the mind of the trier of fact the requisite degree of belief concerning the fact or issue in question is said to have the “burden of proof” or “burden of persuasion.”

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Burden of Proof

Ordinarily, the burden of proof is on the party that initiated the action.

The burden of proof can be established by asking: “If both sides appear, but neither side offers any evidence, who loses?” The losing party has the burden of proof.

Not the same as “burden of going forward.”

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Standards of Proof

Preponderance of the Evidence = existence of fact is more likely than not

Clear and Convincing Evidence = highly probable or reasonably certain

Beyond a Reasonable Doubt = There is no reasonable doubt concerning the existence of the fact at issue (used in criminal cases).

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Presumption - An Inference Drawn in Favor of a Particular

Fact Legal presumption – an inferred fact is

deemed to exist as a matter of law and may not be disproved by evidence to the contrary.

Conclusive presumption – the proof of a basic fact renders the existence of a presumed fact conclusive and/or irrebuttable.

Rebuttable presumption – can be overturned with sufficient showing of proof to the contrary.

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Evidence Outside the Record Certain matters need not be proved by

evidence at all:StipulationsNotice: not subject to reasonable disputeGenerally known in the territorial

jurisdiction of the hearing officerCapable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be disputed

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Notice May be Taken Regarding:

Laws, regulations, ordinances, rulesAlmanac data (time of sunrise,

sunset)State of the tides

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Official Notice

In certain types of hearings and under certain circumstances, hearing officers may take “official” notice of

Matters relating to the agency whose actions are the subject of the proceeding before the hearing officer. Examples:

Nuclear Regulatory BodyWater Resources Agency

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Questions?

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Thank you!

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