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Library: Policy

340:2-5-121. Evidence

Issued 06-27-02

(a) In general.

  • (1) Formal rules of evidence are not observed.
  • (2) Evidence is admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely on in the conduct of serious affairs.
  • (3) Evidence which may reasonably be construed as relevant and which is not otherwise unduly repetitious is admitted.  Evidence which is irrelevant or unduly repetitious may be excluded. 

(b) Specific evidentiary issues.

  • (1) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available.  Upon request all parties are given an opportunity to compare the copy with the original.
  • (2) Evidence normally stored in electronic form may be printed and introduced as if the printed page was the original.  Electronic evidence includes, but is not limited to: 
    • (A) Department of Human Services (DHS) records;
    • (B) e-mail; and
    • (C) Internet pages. 
  • (3) When all parties stipulate to a fact, the administrative hearing officer (AHO) may make a finding of fact on the basis of the stipulation. 
  • (4) Judicial notice. 
    • (A) Law.  Judicial notice is taken by the AHO of the common law, constitutions, statutes, and administrative regulations in force in every state, territory, and jurisdiction of the United States.
    • (B) Facts.
      • (i) A judicially noticed fact is not subject to reasonable dispute.  It is either:
        • (I) generally known within the state; or
        • (II) capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned. 
      • (ii) An AHO may take judicial notice of a fact:
        • (I) if requested by a party and supplied with the necessary information; or
        • (II) on his or her own motion.
    • (C) Propriety.  In determining the propriety of taking judicial notice of a matter:
      • (i) the AHO may consult and use any source of pertinent information, whether or not furnished by a party; 
      • (ii) a party is entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice and the scope of the matter noticed; and
      • (iii) judicial notice may be taken at any stage of the proceeding.
  • (5) Hearsay.
    • (A) Hearsay is evidence regarding a statement made outside of the hearing by a person not present at the hearing and which is offered to prove the truth of the statement. 
    • (B) Hearsay evidence is not excluded because of its hearsay nature but is admitted or excluded based upon the standards set forth below.
    • (C) Admissibility and weight of hearsay evidence is explained in (i) - (iii) of this subparagraph.
      • (i) Generally, evidence is admissible if it is the kind of evidence upon which reasonable persons are accustomed to rely on in the conduct of serious affairs. 
      • (ii) Unlike judicial proceedings in which certain classes of hearsay evidence are automatically excluded due to concerns over the hearsay's reliability, no class of hearsay evidence is automatically excluded in administrative proceedings. 
      • (iii) Once hearsay evidence has been admitted, it is still necessary for the decision maker to decide what weight should be given to the evidence.  • 1
    • (D) Even if hearsay evidence is admitted and accorded great weight, an administrative decision may not be based solely on hearsay.


(1) Evidence, although admissible, may not be very persuasive relevant to other evidence.On the other hand, that same evidence might not be very "weighty" by itself but may corroborate other evidence on a particular point and make the evidence on that point highly persuasive.

(2) It is not necessary to separately assign value to each item of evidence, but rather such evidence must be considered in the context of all evidence received.

(3) Caution must be exercised in both the decision to admit hearsay and as to determining the weight accorded to such evidence.There can be great variation among different hearsay evidence. For example, a medical conclusion found in a well-known medical text is likely to be more reliable than a second or third-hand version of a given fact.

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