Evidence Fundamentals
Presented by Adam Fisher, Jr., Esquire
Fisher Law Firm, Greenville, South Carolina
Created by Justice W. Michael “Mick” Gillette
Oregon Supreme Court (senior judge)
Why do we discuss
evidence and the strict
Rules
of Evidence when they
often don’t apply in an
administrative hearing?
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What is the Purpose of Evidence?
 To
prove the existence or
nonexistence of a fact;
 To induce a belief in the mind of the
hearing officer that the party’s
account of the events is true; and
 To induce a belief in the mind of the
hearing officer that the party’s
contention or argument is valid.
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What is Evidence?
 Any
type of proof presented in your
hearing in order to prove an alleged
fact or proposition.
 The means by which any fact in
dispute is established or disproved.
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What Evidence is Not:
 Assertions
are not evidence. They are
merely allegations or contentions.
 Arguments are not evidence but are
often offered posing as evidence. They
may be a party’s (or their counsel’s)
attempt to offer misleading testimony.
 A party’s (or their counsel’s) suggestion
or speculation as to other possible but
unsupported factual explanations of
events is not evidence.
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How is Evidence Presented?
Through the testimony of witnesses—
live persons who report on facts.
2. Through documents—writings of all
kinds, including electronic writings.
3. Through tangible objects—things of
all kinds or, more commonly,
photographs of things.
1.
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Categories of Evidence
 Direct
evidence proves a fact by its
existence (e.g. gun) or directly
describes a fact or event through the
sworn testimony of an eyewitness
 Indirect (circumstantial) evidence
implies the existence or nonexistence
of a fact (e.g. powder residue on the
hands is indirect evidence the person
fired a gun)
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Types of Evidence
 Testimonial
evidence – Communicative:
oral evidence, gestures, sign language
 Documentary evidence – records,
receipts, etc.
 Real evidence – relevant, tangible things
 Demonstrative evidence – has probative
value of its own, although testimony may
be needed to explain its value
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Rules of Admissibility
 Federal
Rules of Evidence
 State Rules of Evidence
 Federal Administrative Procedures Act
 State Administrative Procedures Act
 Specific agency organic acts (statutes)
 Agency rules (regulations)
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Standards for Admissibility

a.
b.
c.
d.
Admissibility is case specific. It’s
determined by
Applicable substantive law
Pleadings (notice of violation, notice of
suspension/revocation, hearing notice)
Background of the case & the parties
Potential or actual questions of
credibility
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Standards for Admissibility
Admissibility is case specific.
 To be admissible evidence must be
“relevant” and/or “material.”
 In administrative hearings, the general
or preferred policy favors admissibility;
therefore the focus becomes what is
not admissible.
 Relevant evidence may be excluded
from jury trials if it’s more prejudicial
than probative.

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Hearsay Evidence
Hearsay Definition Under
the Rules of Evidence
Hearsay: A statement, other than
one made by the declarant while
testifying in a hearing, offered in
evidence for the purpose of proving
the truth of the matter asserted
(what is at issue in the hearing).
Popular But Incorrect
Definition of Hearsay:
Any evidence which depends on the
credibility of someone who cannot be
cross-examined for its probative value
(i.e. if the declarant isn’t present at
the hearing to be cross-examined,
the statement is not admissible)
There’s Silly Hearsay…
There’s Interesting Hearsay…
There’s Gossipy Hearsay…
…and there are very good reasons
why we don’t admit some hearsay.
Admissibility of Hearsay
Hearsay is generally admissible in an
administrative hearing unless

–
–


It’s precluded by statute
It lacks the requisite reliability for admission
Most APAs omit hearsay from the list of
evidence that should not be received
Requisite reliability: the kind of
evidence reasonably prudent persons
rely on for the conduct of their serious
affairs.
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Non-Hearsay Statements:
 An
admission by a party to the hearing.
 Statements offered for purposes other than
to prove a fact at issue in the hearing.
 Nonassertions: An utterance that merely
implies a fact is not hearsay. Examples:
 FBI answers phone at suspected bookie’s
house—people placing bets.
 Police officer answers drug suspect’s phone
and hears “Did you get the stuff?”
Hearsay, But “Good”
(Admissible) Hearsay:
 Hearsay
to which no objection has been
raised
 Hearsay covered by an exception
 Verbal Acts: Hearsay testimony offered
not to prove the truth of the matter but to
prove the words were spoken. Examples:
 To prove the state of mind of the
declarant
Hearsay, But “Good”
(Admissible) Hearsay:
 Hearsay
which is reliable or trustworthy in
nature, such as:
 Hearsay corroborated by other
independent and non-hearsay evidence
(e.g. police officer’s visual observations)
 Hearsay is admissible for the purpose of
corroborating other non-hearsay evidence
Hearsay, But “Good”
(Admissible) Hearsay:
 Hearsay
which is from a reliable or
trustworthy source, such as:
 Police officer (e.g. one officer to
another even if other officer is off
duty)
 Informant (but cannot base the facts of
the case solely on that hearsay; must
be based on totality of circumstances)
Hearsay Exceptions,
Declarant Available:
 Present
Sense Impression
 Excited Utterance (spontaneous reaction
to sufficiently startling experience)
 Then Existing Mental, Emotional, Physical
Condition
 Recorded Recollection
 Vital Statistics Records
 Family & Religious Organization Records
 Records of Interest in Property
Hearsay Exceptions,
Declarant Available:
 Ancient
Document
 Market/Commercial Reports
 Learned Treatises
 Judgment of Previous Conviction
 Other Judgments (if relevant)
 Reputation as to Character (if relevant)
 Records of Interest in Property
Hearsay Exceptions,
Declarant Unavailable:
 Former
Testimony
 Statement Under Belief of Impending Death
 Statement Against Interest
 Statement of Personal or Family History
 Forfeiture by Wrongdoing
Residual Hearsay Exception:
Statement not covered by any exception,
but still trustworthy, can be admitted if:
 The statement is offered as evidence of a
material fact;
 The statement is more probative on the
point for which it is offered than any other
reasonably procurable evidence;
 The general purpose of the hearsay rule &
the interests of justice will be served by
admitting it.
Foundation
Preliminary requirement that must be
met before evidence can be admitted.
 Laying a foundation: the process of
determining whether the evidence
offered is connected with some issue
in the proceeding and is offered in a
permissible form.
 Kind of foundation to be laid depends
on the nature of the evidence offered.

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Foundation for Lay Witnesses
1.
2.
3.
4.
5.
Must be able to testify from personal
knowledge.
Must be able to perceive events through
one or more senses.
Must be able to recall what they
perceived.
Must be able to report what they recall.
Must be able willing and able to tell the
truth after an oath or affirmation.
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Foundation for Expert Witnesses
Inquiry must be made regarding:
 Previously qualified to testify as an
expert regarding the same subject at
issue in your hearing?
 Level of education
 Training
 Experience
 Expertise
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Foundation for Documents
If the document is one that has been
kept in the regular course of business,
authentication by the custodian of the
document or a live witness who has
seen the document is needed.
 If the document is a government
document, authentication/foundation
may be shown by a certification from
the document’s custodian.

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Foundation for Objects
May be identified by a witness as “the”
object the witness referred to in
his/her testimony.
 If the object is one of many of the
same/similar objects or one that could
be easily altered, it may be necessary
to establish the “chain of custody”
(history of possession) of the object.

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Burden of Proof
The purpose of evidence is to prove
something. But who must prove it?
The party with the obligation to
establish in the mind of the trier of
fact the requisite degree of belief
concerning the fact or issue in
question is said to have the “burden of
proof” or “burden of persuasion.”
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Burden of Proof
Ordinarily, the burden of proof is on
the party that initiated the action.
 The burden of proof can be
established by asking: “If both sides
appear, but neither side offers any
evidence, who loses?” The losing
party has the burden of proof.
 Not the same as “burden of going
forward.”

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Standards of Proof
 Preponderance
of the Evidence =
existence of fact is more likely than not
 Clear and Convincing Evidence =
highly probable or reasonably certain
 Beyond a Reasonable Doubt = There is
no reasonable doubt concerning the
existence of the fact at issue (used in
criminal cases).
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Presumption - An Inference
Drawn in Favor of a Particular Fact
Legal presumption – an inferred fact is
deemed to exist as a matter of law and may
not be disproved by evidence to the contrary.
 Conclusive presumption – the proof of a basic
fact renders the existence of a presumed fact
conclusive and/or irrebuttable.
 Rebuttable presumption – can be overturned
with sufficient showing of proof to the
contrary.

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Evidence Outside the Record
Certain matters need not be proved by
evidence at all:
 Stipulations
 Notice: not subject to reasonable dispute
 Generally known in the territorial
jurisdiction of the hearing officer
 Capable of accurate and ready
determination by resort to sources whose
accuracy cannot reasonably be disputed
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Notice May be Taken Regarding:
 Laws,
regulations, ordinances, rules
 Almanac data (time of sunrise, sunset)
 State of the tides
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Official Notice
In certain types of hearings and under
certain circumstances, hearing officers
may take “official” notice of
 Matters relating to the agency whose
actions are the subject of the proceeding
before the hearing officer. Examples:
 Nuclear Regulatory Body
 Water Resources Agency
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Questions?
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Thank you!
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