§91-10  Rules of evidence; official notice. In contested cases:

(1)  Except as provided in section 91-8.5, any oral ordocumentary evidence may be received, but every agency shall as a matter ofpolicy provide for the exclusion of irrelevant, immaterial, or undulyrepetitious evidence and no sanction shall be imposed or rule or order beissued except upon consideration of the whole record or such portions thereofas may be cited by any party and as supported by and in accordance with thereliable, probative, and substantial evidence.  The agencies shall give effectto the rules of privilege recognized by law;

(2)  Documentary evidence may be received in the formof copies or excerpts, if the original is not readily available; provided thatupon request parties shall be given an opportunity to compare the copy with theoriginal;

(3)  Every party shall have the right to conduct suchcross-examination as may be required for a full and true disclosure of thefacts, and shall have the right to submit rebuttal evidence;

(4)  Agencies may take notice of judiciallyrecognizable facts.  In addition, they may take notice of generally recognizedtechnical or scientific facts within their specialized knowledge; but partiesshall be notified either before or during the hearing, or by reference inpreliminary reports or otherwise, of the material so noticed, and they shall beafforded an opportunity to contest the facts so noticed; and

(5)  Except as otherwise provided by law, the partyinitiating the proceeding shall have the burden of proof, including the burdenof producing evidence as well as the burden of persuasion.  The degree orquantum of proof shall be a preponderance of the evidence. [L 1961, c 103, §10;Supp, §6C-10; HRS §91-10; am L 1978, c 76, §1; am L 2003, c 76, §3]

 

Case Notes

 

  Agencies are to admit any and all evidence, limited only byconsiderations of relevancy, materiality, and repetition.  54 H. 479, 510 P.2d89; 5 H. App. 59, 678 P.2d 576.

  Commissioner's "view" of premises in a land useboundary case without proper notice to party violated par. (4).  55 H. 538, 524P.2d 84.

  Paragraph (3) applied.  55 H. 538, 524 P.2d 84.

  Mere admission of irrelevant or incompetent evidence notreversible error.  59 H. 388, 583 P.2d 313; 5 H. App. 59, 678 P.2d 576.

  Acceptance of certain mathematical calculations not subjectto cross-examination or rebuttal testimony.  65 H. 293, 651 P.2d 475.

  Party was properly assigned burden of proof.  66 H. 538, 669P.2d 148.

  Agency properly disallowed rebuttal testimony involving nonew evidence or argument.  67 H. 425, 690 P.2d 274.

  Zoning board of appeals did not exceed its statutoryauthority by hearing evidence and considering documents verifying thatappellants were permitting zoning violation to continue on their property;rules of evidence in administrative hearings allow admission of hearsayevidence.  77 H. 168, 883 P.2d 629.

  Appellant had not met burden of demonstrating a violation ofparagraph (3) by board of medical examiners; board did not err in admittingevidence of judgment of conviction and police reports.  78 H. 21, 889 P.2d 705.

  Where unlikely that cross-examination of witnesses on appealwould have unearthed anything of particular value regarding legal arguments orsubjective feelings of witnesses who had already testified before hearingsofficer, right to cross-examine witnesses not unduly infringed by department ofland utilization's two-tiered mechanism of review.  87 H. 217, 953 P.2d 1315.

  Agency properly disallowed repetitious testimony.  4 H. App.633, 675 P.2d 784.