Section 1240-05-06-.01 - RULES OF EVIDENCE(1) Evidence in Hearings. In all Department hearings, the testimony of witnesses shall be taken in open hearings, except as otherwise provided by these rules. In the discretion of the Department or at the motion of any party, witnesses may be excluded prior to their testimony. The standard for admissibility of evidence, including admissibility of affidavits, is set forth at T.C.A. § 4-5-313.(2) The hearing official shall admit and give probative effect to evidence admissible in a court, and when necessary to ascertain facts not reasonably susceptible to proof under the rules of court, evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. The hearing official shall give effect to the rules of privilege recognized by law and to state or federal statutes or regulations protecting the confidentiality of certain records and shall exclude evidence which in his/her judgment is irrelevant, immaterial or unduly repetitious.(3) Documentary evidence otherwise admissible may be received in the form of copies or excerpts, or by incorporation by reference to material already on file with the Department. Upon request, parties shall be given an opportunity to compare the copy with the original, if reasonably available.(4) Official notice may be taken of:(a) Any fact that could be judicially noticed in the courts of this state;(b) The record of other proceedings before the Department;(c) Technical or scientific matters within the hearing official's specialized knowledge; and(d) Codes or standards that have been adopted by an agency of the United States, of this state or of another state, or by a nationally recognized organization or association. Parties must be notified before or during the hearing, or before the issuance of any Initial or Final Order that is based in whole or in part on facts or material noticed, of the specific facts or material noticed and the source thereof, including any staff memoranda and data, and be afforded an opportunity to contest and rebut the facts or material so noticed.(5) Every party shall have the right to present evidence, to make arguments, and to confront and cross-examine witnesses.(6) At any time not less than ten (10) days prior to a hearing or a continued hearing, any party shall deliver to the opposing party a copy of any affidavit which such party proposes to introduce in evidence, together with a notice in the form provided in 1240-5-6-.01(8) below. Unless the opposing party within seven (7) days after delivery delivers to the proponent a request to cross-examine an affiant, the opposing party's right to cross-examination of such affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after a proper request is made as herein provided, the affidavit shall not be admitted into evidence. Delivery for purposes of this paragraph shall mean actual receipt.(7) The hearing official assigned to conduct the hearing may admit affidavits not submitted in accordance with paragraph (6) above, where necessary to prevent injustice.(8) The notice referred to in 1240-5-6-.01(6) above shall contain the following information and be substantially in the following form: The accompanying affidavit of __________ (here insert name of affiant) will be introduced as evidence at the hearing in __________ (here insert title of proceeding). __________ ( Here insert name of affiant) will not be called to testify orally and you will not be entitled to question such affiant unless you notify __________ (here insert name of the proponent or the proponent's attorney) at __________ (here insert address) that you wish to cross-examine such
affiant. To be effective, your request must be mailed or delivered to __________ (here insert name of proponent or the proponent's attorney) on or before __________ (here insert a date seven (7) days after the date of mailing or delivering the affidavit to the opposing party).
Tenn. Comp. R. & Regs. 1240-05-06-.01
Original rule filed January 19, 1977; effective February 18, 1977. Amendment filed January 12, 1979; effective May 1, 1979. Amendment filed February 26, 2007; effective May 12, 2007.Authority: T.C.A. §§ 4-5-202, 4-5-313, 71-1-105(12) and 71-1-111.