1. 1 Ruling on Objections Presented by Peter K. Halbach, Chief Hearing Officer North Dakota Department of Transportation

2. Rules? What rules? 2

3. Are the “Rules of Evidence” applicable to your hearings? considered more formal Is the admissibility of evidence at your hearings governed by the an Administrative Procedure Act? considered more liberal Combination or hybrid? 3

4. Where? Administrative Procedure Act – –Does it require use of rules of evidence or another standard for admitting evidence? – –Examples:   Arizona APA: “without adherence to the rules of evidence”   North Dakota APA: determined by “Rules of Evidence” 4

5. Revised Model State Administrative Procedure Act All relevant evidence is admissible, including hearsay, if of the type “commonly relied on by a reasonably prudent individual in the conduct of the affairs of the individual” Rules of evidence exclude hearsay, unless an exception applies 5

6. Objections: Purpose Most common way to assert it is improper to admit certain evidence   Keep it out   It’s unreliable or untrustworthy   Don’t give it much weight 6

7. Other Purposes:   Admit proper evidence   Preserve a claim of error   Make a record for appeal   Prevent harassment   Prevent embarrassment   Prevent waste of time 7

8. Exclude Evidence Irrelevant Immaterial Unduly repetitious Constitutional or statutory grounds Privilege 8

9. Steps of an Objection Address the presiding officer Timely object Specify what is objected to Specify the grounds 9

10. Timely Shall exclude “if objection is made at the time the evidence is offered.” (Rev. Model State APA) Party may only claim error if evidence is admitted if the party, on the record, “timely objects or moves to strike,” and “states the specific ground….” (Fed.R.Ev., Rule 103) 10

11. Timeliness Improper question:   After the question is asked   Before the answer Foundation   Party has tried to lay foundation 11

12. Additional Steps Move to strike Offer of proof 12

13. Specific Grounds What is objected to The reason for the objection Concisely stated Without argument 13

14. Waiver of Objection Untimely Failed to specify grounds Did not alert the presiding officer to the proper course of action Did not enable opponent to take proper corrective actions 14

15. Role of the Hearing Official Ensure a full, fair and impartial hearing Develop a record leading to a decision, fact-finding Provide a record for appeal 15

16. Performance Goals Proper evidence will be admitted Irrelevant areas will be avoided Presentation will move smoothly Rancor will be minimized Record will be clear 16

17. Ruling on Objections If no reason is given, should ask, “On what ground?” Do not permit the reasons or grounds to be given in the form of an argument, instead of specifically referencing a rule, i.e., hearsay, irrelevant Overrule a general objection, i.e. “incompetent, irrelevant, immaterial.” 17

18. Ruling on Objections Sustained Valid objection Evidence not admitted (not received) Not received into evidence Overruled Evidence not subject to the stated objection Evidence admitted Received into evidence 18

19. Delay in Ruling Ask for additional explanation or argument Confine to what is helpful to the ruling Not argue the case Admitted subject to the objection Permit witness to testify so have an opportunity to hear the testimony Rule by the end of the proceeding Rule in the written decision Danger of forgetting to rule, implying overruled 19

20. The Record Objection Grounds Ruling What was admitted What was excluded (offer of proof) 20

21. 21 To the Form of a Question To Admission of Evidence Two Categories of Objections:

22. 22 Leading Too general Calls for a narrative Asked and answered Unintelligible or ambiguous Objections to the Form of a Question

23. 23 Harasses or embarrasses Argumentative Calls for speculation Misstates evidence Assumes facts not in evidence Objections to the Form of a Question

24. What is a leading question? A leading question is one which suggests the desired answer. Can be answered with one word Generally not allowed on direct examination or redirect 24

25. Example Hendrickson v. Olson, 2009 ND 16, at ¶ 5, 760 N.W.2d 116. “What you’re doing is actually testifying.” 25

26. 26 Leading Questions Allowed Preliminary Undisputed matters Witness unable to testify meaningfully without leading Adverse or hostile witness During cross-examination

27. 27 Relevant evidence is admissible Materiality merged into relevancy Relevant: tending to make a fact in issue more or less probable Goes to the weight, not the admissibility Relevant evidence may be excluded if “u nduly repetitious” Objection to Admission of Evidence:

28. Hearsay Is it hearsay? Does the hearsay rule apply? Does an exception apply? 28

29. Competency of the Witness Within the personal knowledge of the witness Ability to perceive Ability to remember Ability to communicate Appreciation of the oath Fact vs. opinion 29

30. Opinion Evidence Opinion of a Lay Witness Opinion of an Expert

31. Lay Opinion First hand knowledge Perceived observation Matters generally understood 31

32. 32 Opinion of an Expert Qualified by knowledge, skill, experience, or education Will assist the trier-of-fact Facts or data reasonably relied upon Facts or data need not be admissible

33. Thank you 33