Evidence Fundamentals Presented by Adam Fisher, Jr., Esquire Fisher Law Firm, Greenville, South Carolina Created by Justice W. Michael “Mick” Gillette Oregon Supreme Court (senior judge)

Why do we discuss evidence and the strict Rules of Evidence when they often don’t apply in an administrative hearing?

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.

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.

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.

How is Evidence Presented? Through the testimony of witnesses—live persons who report on facts. Through documents—writings of all kinds, including electronic writings. Through tangible objects—things of all kinds or, more commonly, photographs of things.

Categories of Evidence Direct 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)

Types of Evidence Testimonial evidence – Communicative: oral evidence, gestures, sign language Documentary evidence – records, receipts, etc. Real evidence – relevant, tangible things Demonstrative evidence – has probative value of its own, although testimony may be needed to explain its value

Rules of Admissibility Federal Rules of Evidence State Rules of Evidence Federal Administrative Procedures Act State Administrative Procedures Act Specific agency organic acts (statutes) Agency rules (regulations)

Standards for Admissibility Admissibility is case specific. It’s determined by Applicable substantive law Pleadings (notice of violation, notice of suspension/revocation, hearing notice) Background of the case & the parties Potential or actual questions of credibility

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.

Hearsay Evidence

Hearsay Definition Under the 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 Incorrect 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 Interesting Hearsay…

There’s Gossipy Hearsay…

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

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” (Admissible) Hearsay: Hearsay to which no objection has been raised Hearsay covered by an exception Verbal 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” (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” (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, 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, 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, Declarant Unavailable: Former Testimony Statement Under Belief of Impending Death Statement Against Interest Statement of Personal or Family History Forfeiture by Wrongdoing

Residual 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.

Foundation for Lay Witnesses Must be able to testify from personal knowledge. Must be able to perceive events through one or more senses. Must be able to recall what they perceived. Must be able to report what they recall. Must be able willing and able to tell the truth after an oath or affirmation.

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

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.

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.

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.”

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.”

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).

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.

Evidence Outside the Record Certain matters need not be proved by evidence at all: Stipulations Notice: not subject to reasonable dispute Generally known in the territorial jurisdiction of the hearing officer Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be disputed

Notice May be Taken Regarding: Laws, regulations, ordinances, rules Almanac data (time of sunrise, sunset) State of the tides

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 Body Water Resources Agency

Questions?

Thank you!