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.

Cited: 132 H. 9, 319 P.3d 1017 (2014).



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