Administrative tribunals are not bound by the strict or technical rules of evidence governing jury trials.[i] The agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed, or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. A party is entitled to:
- present his/her case or defense by oral or documentary evidence,
- to submit rebuttal evidence, and
- to conduct such cross- examination as may be required for a full and true disclosure of the facts.
In rule making or determining claims for money or benefits or applications for initial licenses an agency may adopt procedures for the submission of all or part of the evidence in written form.[ii]
The 1981 Model State Administrative Procedure Act provides that the presiding officer must exclude evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds upon a proper objection. The presiding officer may exclude objectionable evidence in the absence of a proper objection. However, the hearing officer may not exclude evidence solely because it is hearsay.
The 1961 Model State Administrative Procedure Act requires the exclusion of irrelevant, immaterial, or unduly repetitious evidence. It provides that state law privileges will be observed. An exception to the application of the rules of evidence is made when necessary to ascertain facts not reasonably susceptible of proof under the rules, as long as:
- the admission of the evidence not admissible under the rules is not precluded by statute; and
- the evidence is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.
While compliance with strict evidentiary standards is not required in an administrative hearings, it is clearly improper for an administrative agency to base a decision of an adjudicatory nature, where there is a right to a hearing, upon evidence or information outside the record.[iii]
[i] Florida State Board of Dental Examiners v. Feinglass, 166 So. 2d 686 (Fla. Dist. Ct. App. 3d Dist. 1964)
[ii] 5 USCS § 556
[iii] Avery v. Rechter, 56 A.D.2d 963 (N.Y. App. Div. 3d Dep’t 1977)