Current through Register Vol. 35, No. 9, May 7, 2024
Section 13.1.5.17 - BURDEN OF PROOF, PRESENTATION OF CASE, EVIDENCEA.Burden of proof. Unless otherwise specified by statute, the burden of proof in a proceeding is the preponderance of evidence.B.Presentation order. The party with the burden of proof in the case shall ordinarily present their case first, followed by the opposing party, if any, unless the hearing officer makes reasonable exceptions related to the availability of the witnesses, representatives or other scheduling concerns.C.Opening statements. The hearing officer may require or allow opening statements as the circumstances justify. Opening statements are not ordinarily evidence, but without objection, may be adopted as evidence by sworn oath of the party-witness who made the opening statement.D.Testimony under oath. All testimony must be given under oath and shall be subject to questioning of each other party. The hearing officer may also ask questions of the witness as appropriate. At the hearing officer's discretion, redirect and re-cross may be allowed.E.Closing arguments. The parties may make closing arguments, either orally at the conclusion of the case or, upon order of the hearing officer, in writing after conclusion of the hearing.F.Post-hearing briefs. The hearing officer may also order the parties to submit further briefing on any issue in the case, and to submit proposed findings of fact and conclusions of law. The hearing officer shall establish a timeline for submission of any post-hearing pleadings, including time for the parties to exchange briefs, as the hearing officer finds necessary. No decision-writing deadline commences until the parties have submitted any ordered post-hearing briefing or submission.G.Rules of evidence.(1) Formal rules of evidence and civil procedure shall not apply in a proceeding unless otherwise expressly and specifically required by statute, regulation, or order of the hearing officer. The rules of evidence and civil procedure pertaining to privilege shall always apply regardless of the level of formality in a particular proceeding.(2) Relevant and material evidence shall be admissible. Irrelevant, immaterial, unreliable, or unduly repetitious evidence may be excluded.(3) A party may offer exhibits, such as records of transactions.(a) The party shall have the exhibits numbered by the stenographer prior to the hearing.(b) The party shall provide copies of the evidence to the stenographer, all parties and to the hearing officer.(c) Exhibits must be introduced and explained by a witness, who must be prepared to answer questions from the parties and the hearing officer.(d) The hearing officer shall be asked by the party offering an exhibit to accept the exhibit into evidence. The hearing officer may be asked to consider all exhibits introduced by a witness at the conclusion of that witness's testimony or at the conclusion of that party's case in chief.(e) The stenographer shall retain on copy of all exhibits that are admitted and shall make them a part of the record.(4) The hearing officer shall consider and give appropriate weight to all relevant and material evidence admitted in rendering a final decision on the merits of a matter.H.Taking notice.(1) The hearing officer may take administrative notice of facts not subject to reasonable dispute that are generally known within the community, capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably disputed, or as provided by an applicable statute.(2) The hearing officer may take administrative notice at any stage in the proceeding, whether suasponte or at the request of a party.(3) A party may dispute the propriety of taking administrative notice, including the opportunity to refute a noticed fact.I.Objections.(1) A party objecting to evidence, qualifications of an expert, a line of questioning, or the response shall timely and briefly state the grounds for the objection.(2) Rulings on objections may be addressed on the record at the time of the objection, reserved for ruling in a subsequent written order, or noted as a continuing, ongoing objection for which ruling is reserved to later in the proceeding.J.Audio or video evidence. Any party wishing to submit a video or audio recording into the record shall provide a complete tangible, playable copy that can be retained as part of the record.K.Size of exhibits. In general, documentary evidence shall be no larger than 8.5 inches by 11 inches unless expressly allowed by the hearing officer. The hearing officer may admit larger documentary exhibits presented at hearing, provided the proponent of such exhibits provides the hearings officer with a copy of the exhibit reduced to 8.5 inches by 11 inches. After the hearing at which the exhibit was admitted, the reduced copy shall be substituted for the larger exhibit and made part of the record of the hearing. Arrangements to provide a reduced copy of a large exhibit shall be undertaken in advance of the hearing. Failure by the proponent to provide a reduced copy shall be deemed a withdrawal of the exhibit.L.Substitutions for objects. In lieu of the introduction of tangible objects as exhibits, the hearing officer may require the moving party to submit a photograph, video, or other appropriate substitute such as a verbal description of the pertinent characteristics of the object for the record.Adopted by New Mexico Register, Volume XXX, Issue 12, June 25, 2019, eff. 7/1/2019