Rule 590-4-6-.16 - Evidence; Official Notice(1) Pursuant to the APA, the Hearing Officer shall apply the rules of evidence as applied in the trial of civil nonjury cases in the superior courts and may, when necessary to ascertain facts not reasonably susceptible of proof under such rules, consider evidence not otherwise admissible thereunder if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs At the discretion of the Hearing Officer, such evidence that may be admitted includes the following: (a) Records, reports, statements, plats, maps, charts, surveys, studies, analyses, or data compilations, in any form, of public offices or agencies, setting forth (i) the activities of the office or agency, or (ii) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or (iii) factual findings resulting from an investigation or research not performed in conjunction with the matter being heard and carried out pursuant to authority granted by law, unless its probative value cannot be determined or it lacks trustworthiness due to the sources of information or other circumstances;(b) Reports, records, statements, plats, maps, charts, surveys, studies, analyses, or data compilations after testimony by an expert witness that the expert witness prepared such document and that it is correct to the best of the expert witness's knowledge, belief and expert opinion;(c) To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by official notice;(d) Any medical, psychiatric, or psychological evaluations, or scientific or technical reports, records, statements, plats, maps, charts, surveys, studies, analyses, or data compilations of a type routinely submitted to, and relied upon by, the Commissioner in the normal course of his or her business; and(e) Documentary evidence in the form of copies, if the original is not readily available, if its use would unduly disrupt the records of the possessor of the original, or by agreement of the parties. Upon request, parties shall have an opportunity to compare the copy with the original. Documentary evidence may also be received in the form of excerpts, charts, or summaries when, in the discretion of the Hearing Officer, the use of the entire document would unnecessarily add to the record's length. The entire document shall be made available for examination or copying, or both, by other parties at a reasonable time and place.(2) Where practicable, a copy of each exhibit identified or tendered at the hearing shall be furnished to the Hearing Officer and the other parties when first presented at the hearing.(3) The Hearing Officer shall give effect to statutory presumptions and the rules of privilege recognized by law.(4) If scientific, technical, or other specialized knowledge may assist the Hearing Officer to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The expert may testify in terms of opinion or inference and give the reasons therefore without prior disclosure of the underlying facts or data, unless the Hearing Officer requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.(5) The Hearing Officer shall have the discretion to authorize or require the submission of direct testimony in written form. Unless otherwise ordered by the Hearing Officer, a party submitting such testimony in support of an issue on which he, she, or it has the burden of proof shall file and serve the testimony upon all parties not less than fifteen (15) Days before the hearing. All other such testimony shall be filed and served upon all parties not less than five (5) days before the hearing. The admissibility of the evidence contained in written testimony shall be subject to the same rules as if the testimony were produced under oral examination. The witness presenting the statement shall swear to or affirm the statement at the hearing and shall be subject to full cross-examination during the course of the hearing.(6) Whenever any oral testimony sought to be admitted is excluded by the Hearing Officer, the proponent of the testimony may make an offer of proof by means of a brief statement on the record describing the excluded testimony. Whenever any documentary or physical evidence or written testimony sought to be admitted is excluded, it shall remain a part of the record as an offer of proof.(7) All objections shall include a statement of the legal basis for the objection and shall be made promptly, or they shall be deemed waived. Parties shall be presumed to have taken exception to an adverse ruling. No objection shall be deemed waived by further participation in the hearing.(8) Official notice may, in the discretion of the Hearing Officer, be taken of judicially recognizable facts. Any documents officially noticed shall be admitted into the record of the hearing. All parties shall be notified either prior to or during the hearing of the material noticed, and any party shall, on a timely request, be afforded an opportunity to contest the matters of which official notice is taken.(9) The weight to be given to any evidence shall be determined by the Hearing Officer based upon its reliability and probative value.Ga. Comp. R. & Regs. R. 590-4-6-.16
O.C.G.A. Secs. 10-5-10, 10-5-16, 10-5-70, 10-5-71, 10-5-73, 10-5-74, 50-13-15.
Original Rule entitled "Evidence; Official Notice" adopted. F. Dec. 21, 2004; eff. Jan. 10, 2005. Repealed: New Rule of same title adopted. F. Nov. 18, 2011; eff. Dec. 8, 2011.