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



(1)  Except as provided in section 91-8.5, any oral or
documentary evidence may be received, but every agency shall as a matter of
policy provide for the exclusion of irrelevant, immaterial, or unduly
repetitious evidence and no sanction shall be imposed or rule or order be
issued except upon consideration of the whole record or such portions thereof
as may be cited by any party and as supported by and in accordance with the
reliable, probative, and substantial evidence.  The agencies shall give effect
to the rules of privilege recognized by law;



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



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



(4)  Agencies may take notice of judicially
recognizable facts.  In addition, they may take notice of generally recognized
technical or scientific facts within their specialized knowledge; but parties
shall be notified either before or during the hearing, or by reference in
preliminary reports or otherwise, of the material so noticed, and they shall be
afforded an opportunity to contest the facts so noticed; and



(5)  Except as otherwise provided by law, the party
initiating the proceeding shall have the burden of proof, including the burden
of producing evidence as well as the burden of persuasion.  The degree or
quantum 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 by
considerations of relevancy, materiality, and repetition.  54 H. 479, 510 P.2d
89; 5 H. App. 59, 678 P.2d 576.



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



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



  Mere admission of irrelevant or incompetent evidence not
reversible error.  59 H. 388, 583 P.2d 313; 5 H. App. 59, 678 P.2d 576.



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



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



  Agency properly disallowed rebuttal testimony involving no
new evidence or argument.  67 H. 425, 690 P.2d 274.



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



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



  Where unlikely that cross-examination of witnesses on appeal
would have unearthed anything of particular value regarding legal arguments or
subjective feelings of witnesses who had already testified before hearings
officer, right to cross-examine witnesses not unduly infringed by department of
land 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.