71 Ind. Admin. Code 10-3-12

Current through September 18, 2024

Section 71 IAC 10-3-12 - Evidence

Authority: IC 4-31-3-9

Affected: IC 4-31-13

Sec. 12.

(a) All testimony must be given under oath administered by the administrative law judge. The administrative law judge may limit the number of witnesses and shall exclude all irrelevant, immaterial, or unduly repetitious evidence.

(b) The administrative law judge shall follow the rules of evidence as applied in administrative hearing procedures in this state. If necessary to ascertain facts not reasonably susceptible of proof under those rules, the administrative law judge may, unless precluded by statute, admit evidence not admissible under those rules, provided the evidence is of a type commonly relied on by reasonably prudent persons in the conduct of their affairs. The rules of privilege recognized by law in this jurisdiction apply in commission proceedings.

(c) A party may object to offered evidence and the objection shall be noted in the record. Formal exceptions to rulings by the administrative law judge during a hearing are unnecessary. A party, at the time an objection is made or sought, shall make known to the administrative law judge the action the party desires.

(d) When the administrative law judge rules to exclude evidence, the party offering the evidence may make an offer of proof by dictating or submitting in writing the substance of the proposed evidence before the closing of the hearing. The offer of proof preserves the point for review. The administrative law judge may ask a witness or offered witness questions necessary to indicate that the witness would testify as represented in the offer of proof. An alleged error in sustaining an objection to questions asked on cross examination is preserved without making an offer of proof.

(e) The administrative law judge may take official notice of judicially recognizable facts and of facts generally recognized within the area of the commission's specialized knowledge. The commission shall notify each party of record before the final decision in a proceeding of each specific fact officially noticed, including any facts or other data in staff memoranda. A party must be given an opportunity to rebut the facts to be noticed.

(f) The special skills and knowledge of the commission and the commission staff may be used in evaluating the evidence. In addition, during the course of any proceedings under these rules which are brought by or are pending before the commission, the commission staff may recommend the imposition of penalties and sanctions authorized by statute which the administrative law judge may in its discretion accept, reject, or modify.

(g) The administrative law judge may receive documentary evidence in the form of copies or excerpts if the original is not readily available. On request, the administrative law judge shall allow a party to compare the copy with the original. If many similar documents are offered in evidence, the administrative law judge may limit the documents admitted to a number which are representative of the total number, or may require that the relevant data be abstracted from the documents and presented as an exhibit. If the administrative law judge requires an abstract, the administrative law judge shall allow each party or the party's representative to examine the documents from which the abstracts are made.

(h) The administrative law judge may require prepared testimony in a hearing if the administrative law judge determines that it will expedite the hearing without substantially prejudicing the interests of a party. Prepared testimony consists of any document that is intended to be offered as evidence and adopted as sworn testimony by a witness who prepared the document or supervised its preparation. A person who intends to offer prepared testimony at a hearing shall prefile the testimony with the commission on the date set by the administrative law judge and shall serve a copy of the prepared testimony on each party of record. The administrative law judge may authorize the late filing of prepared testimony on a showing of extenuating circumstances. The prepared testimony of a witness may be incorporated into the record as if read or received as an exhibit, on the witness being sworn and identifying the writing as a true and accurate record of what the testimony would be if the witness were to testify orally. The witness is subject to clarifying questions and to cross examination, and the prepared testimony is subject to a motion to strike either in whole or in part.

(i) Documentary exhibits must be of a size which will not unduly encumber the record. Whenever practicable, exhibits must conform to the size requirements in these rules for pleadings. The first sheet of the exhibit must briefly state what the exhibit purports to show and the pages of the exhibit must be numbered consecutively. Exhibits may include only facts material and relevant to the issues of the proceeding. Maps or drawings must be rolled or folded so as not to encumber the record. Exhibits not conforming to this subsection may be excluded.

(j) The party offering an exhibit shall tender the original of the exhibit to the administrative law judge for identification. The party shall furnish one (1) copy to the administrative law judge and one (1) copy to each party of record. A document received in evidence may not be withdrawn except with the permission of the administrative law judge. If an exhibit has been offered, objected to, and excluded, and the party offering the exhibit withdraws the offer, the administrative law judge shall return the exhibit to the party. If the party does not withdraw the offered exhibit, the exhibit shall be numbered for identification, endorsed by the administrative law judge with the ruling on the exhibit, and included in the record to preserve the exception.

(k) The administrative law judge may allow a party to offer an exhibit in evidence after the close of the hearing only on a showing of extenuating circumstances and a certificate of service on each party of record.

71 IAC 10-3-12

Indiana Horse Racing Commission; 71 IAC 10-3-12; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1205; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA

Readopted filed 11/10/2014, 2:07 p.m.: 20141210-IR-071140230FRA

Readopted filed 10/7/2020, 2:27 p.m.: 20201104-IR-071200406RFA