Section 50758 - Conduct of Formal Hearing(a) Testimony shall be taken only on oath, affirmation or penalty of perjury.(b) The proceedings at the formal hearing shall be electronically recorded or reported by phonographic reporter.(c) Each party shall have the right to:(1) Call and examine parties and witnesses;(3) Question opposing witnesses and parties on any matter relevant to the issue even though the matter was not covered in the direct examination;(4) Impeach any witness regardless of which party first called the witness to testify;(5) Rebut the evidence against him/her.(d) The appellant shall not be called to testify during presentation of the Department's prima facie case pursuant to subsection (k) of this section. An appellant who declines to testify or present his/her case may be called and examined by the Department as if under cross-examination.(e) The formal hearing need not be conducted according to technical rules relating to evidence and witnesses.(f) Irrelevant repetitious evidence shall be excluded.(g) Relevant evidence, including hearsay, shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions, provided:(1) Hearsay evidence shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions;(2) The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions;(3) The evidence shall be excluded if its probative value is outweighed by excessive consumption of time, undue repetition, or its prejudicial effect.(h) The "best evidence" rule (Evidence Code Section 1500) does not apply unless:(1) A genuine question is raised as to the authenticity of the original or the duplicate; or(2) It would be unfair to admit the duplicate in lieu of the original.(i) A hearing officer may question any party or witness.(j) The hearing officer shall control the taking of evidence in a manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the hearing officer shall set forth the order in which evidence will be received.(k) The Department or regional center shall present its findings and evidence first at the hearing. The Department or regional center has the burden of proof of demonstrating, by a preponderance of the evidence, that the findings were correctly made. Once the Department or regional center has presented such a prima facie case, the burden of proof shifts to the appellant to demonstrate, by a preponderance of the evidence, that the appellant's position regarding disputed issues is correct.(l) The burden of producing evidence is the obligation of introducing sufficient testamentary or demonstrative evidence to establish the existence of an alleged fact. A party who, in support of his/her position, alleges a fact which is specifically or generally disputed by the opposing party, as the burden of producing evidence as to that fact. If the party having the burden of producing evidence fails to introduce sufficient evidence, the hearing officer shall find against such party as to the existence of the particular fact alleged.(m) The hearing shall be conducted in the English language. The proponent of any testimony to be offered by a witness who does not speak the English language proficiently shall provide an interpreter, approved by the hearing officer as proficient in the English language and the language in which the witness will testify, to serve as interpreter during the hearing. The cost of the interpreter shall be paid by the party providing the interpreter.Cal. Code Regs. Tit. 17, § 50758
1. Renumbering and amendment of former Section 50658 to Section 50758 filed 7-5-88; operative 8-4-88 (Register 88, No. 29).
2. Editorial correction of subsection (k) (Register 2002, No. 46). Note: Authority cited: Section 11152, Government Code; and Sections 4648.2 and 4780.5, Welfare and Institutions Code. Reference: Sections 4629, 4635, 4648.1 and 4780.5, Welfare and Institutions Code; and Sections 11180, 11181, and 11182, Government Code.
1. Renumbering and amendment of former Section 50658 to Section 50758 filed 7-5-88; operative 8-4-88 (Register 88, No. 29).
2. Editorial correction of subsection (k) (Register 2002, No. 46).