10-144 C.M.R. ch. 1, § VII - EVIDENCE

Evidence, General Rules

1. Admissibility. Generally, evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.

2. Irrelevant or Repetitious Evidence. Evidence which is irrelevant or unduly repetitious may be excluded.

3. No Formal Rules of Evidence. Formal rules of evidence shall not be observed.

4. Admission of Evidence. Evidence which may reasonably be construed as relevant, and which is not otherwise unduly repetitious shall be admitted. The fact that evidence is admitted, however, shall not limit the authority of the Hearing Officer in determining the appropriate weight to be given such evidence.

5. Exclusion of Evidence. If the Hearing Officer decides to exclude evidence, the proponent shall have the opportunity to make an offer of proof to preserve the record regarding the excluded evidence. The reasons for the exclusion shall be documented in the record, and the excluded evidence will be retained.

6. Hearsay. Hearsay evidence shall not be excluded because of its hearsay nature. Rather, it shall be admitted or excluded based upon the standards and requirements of Section VII.

7. Rules of Privilege. Rules of privilege shall be observed. Privileges recognized shall be those outlined in the Maine Rules of Evidence, Article V and as stated in Maine or federal law.

8. Sworn Written Evidence

a. As used in this section the following words shall have the following meaning:

(i) Affidavit means sworn written evidence;

(ii) Affiant means the person swearing to such written evidence, the term "author" is synonymous with "affiant";

(iii) Offering party means the party attempting to introduce into evidence an affidavit;

(iv) Opposing party means the party against whom an affidavit is offered.

b. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown.

c.

(i) The offering party shall mail the affidavit, a statement of intention to introduce the affidavit, and all information necessary to subpoena the affiant to the opposing party at least twelve (12) days before the scheduled hearing date. If the offering party believes the affiant is not subject to subpoena the notice shall so state.

(ii) If the opposing party wishes to cross-examine an affiant who is subject to subpoena, that party shall attempt in good faith to subpoena the affiant in accordance with the provisions of these rules and prior to the hearing. Failure to attempt to subpoena the affiant shall constitute a waiver of any objection to the affidavit based upon the absence of the affiant at the hearing. If the affiant is subpoenaed, the affidavit shall be admitted only if the affiant is present at the hearing and available for cross- examination, unless the offering party shows good cause as to why the affidavit should be admitted anyway.

(iii) The following procedure may replace the advance notice procedure of sub-sections (i) and (ii) only when the affiant is actually subject to subpoena. If the offering party does not follow the procedure outlined in sub-sections (i) and (ii) above, and offers an affidavit of an affiant who is not present, and the opposing party objects to its introduction based upon the unavailability of the affiant for cross- examination, the offering party shall provide the opposing party with all information necessary to subpoena the affiant or, in the alternative, agree to produce themselves the affiant for cross-examination; in either instance, the hearing shall be continued to accommodate production of the affiant. Only if the affiant actually appears and is therefore subject to cross- examination shall the affidavit be admitted into evidence, unless the offering party shows good cause as to why the affidavit should be admitted anyway.

d. The twelve (12) day notice period of sub-section c (i) may be modified prospectively or retrospectively by the Hearing Officer for good cause shown.

9. Stipulation of Facts. Unless withdrawn by one of the parties, a Hearing Officer shall not admit evidence or hear argument that contradicts a stipulated fact. The use of a stipulation to establish an undisputed fact or a series of stipulations in a statement of agreed facts is encouraged to save time, reduce the number of witnesses, and expedite the hearing process. A Hearing Officer may require parties to propose stipulations. When all parties stipulate to a fact, the Hearing Officer may make a finding of fact on the basis of the stipulation. Signed statements by the parties or on-the- record oral statements by the parties are sufficient as stipulations. Written stipulations may be filed with the Hearing Officer at any stage of the proceeding. In making findings, a Hearing Officer is not bound by a stipulation that contravenes law or is clearly erroneous.

10. Official Notice of Facts. The Hearing Officer can take official notice of a fact upon the Hearing Officer's own initiative or at the request of a party. The Hearing Officer may take official notice of any fact of which judicial notice could be taken, and in addition may take official notice of general, technical, or scientific matters within their specialized knowledge and of statutes, regulations, and non-confidential agency records. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed.

11. Pre-filing of Direct Testimony

a. Who may request

Any party or Hearing Officer may request the pre-filing of direct testimony in a particular matter. A Hearing Officer may grant such a request if it will expedite the hearing process and it imposes no prejudice on any party.

b. Scheduling

A Hearing Officer shall issue a scheduling order indicating the dates by which pre-filed testimony shall be submitted, the dates such witnesses shall be available for cross-examination, and other dates relevant to the hearing process. The Hearing Officer shall hold a conference prior to issuing such an order.

c. Limitation

Nothing in this subsection limits the right of any party to subpoena witnesses or to exercise the right of cross- examination.

Notes

10-144 C.M.R. ch. 1, § VII