2 AAC 64.290 - Evidence

(a) The administrative law judge may

(1) admit evidence of the type on which a reasonable person might rely in the conduct of serious affairs;

(2) refuse to admit evidence that is unduly repetitious; and

(3) exclude any documentary, testimonial, or physical evidence that was not disclosed as required in an approved discovery plan or by a discovery order, unless the failure to disclose was due to

(A) surprise;

(B) the new discovery of evidence that could not have been disclosed sooner through the exercise of due diligence;

(C) the misconduct of another party; or

(D) discovery, after the deadline for the disclosing evidence, of evidence that rebuts another party's evidence.

(b) The rules of evidence used in the courts of the state do not apply to an administrative hearing except as a guide, unless the parties stipulate to the application of those rules. The rules of privilege apply as they apply in civil actions in the courts of the state.

(c) Oral evidence may be taken only under oath or affirmation. An administrative law judge may administer an oath or affirmation.

(d) Testimonial evidence may be given by affidavit unless an applicable law, written agreement, or order of the administrative law judge requires that testimony be given in person or telephonically. The administrative law judge will condition the use of an affidavit in lieu of live testimony at the hearing on the ability of an opposing party to cross-examine the witness and to evaluate the evidence. Affidavits submitted to support a motion, including a motion requesting disqualification of an administrative law judge, or submitted in place of in-person or telephonic testimony at a hearing, if allowed, must be made under oath or affirmation, must be based on personal knowledge, must set out facts that would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated.

(e) Unless otherwise provided by applicable statute or regulation, the burden of proof and of going forward with evidence is on the party who requested the hearing or made the motion under consideration, and the standard of proof is preponderance of the evidence. To prove a fact by a preponderance of evidence, a party with the burden of proof must show that the fact more likely than not is true.

Notes

2 AAC 64.290

Eff. 7/2/2006, Register 178

Authority:AS 44.64.020

AS 44.64.040

AS 44.64.060