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Ruling on Objections

Presented by Peter K. Halbach, Chief Hearing Officer

North Dakota Department of Transportation

Rules? What rules?

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Rules? What rules?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 liberalCombination or hybrid?

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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”

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Revised Model StateAdministrative 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

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Objections: Purpose

Most common way to assert it is improper to admit certain evidence

Keep it outIt’s unreliable or untrustworthyDon’t give it much weight

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Other Purposes:Admit proper evidencePreserve a claim of error Make a record for appealPrevent harassmentPrevent embarrassmentPrevent waste of time

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Exclude EvidenceIrrelevantImmaterialUnduly repetitiousConstitutional or statutory groundsPrivilege

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Steps of an Objection

Address the presiding officerTimely objectSpecify what is objected toSpecify the grounds

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TimelyShall 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)

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TimelinessImproper question:

After the question is askedBefore the answer

FoundationParty has tried to lay foundation

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Additional Steps

Move to strikeOffer of proof

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Specific Grounds

What is objected toThe reason for the objectionConcisely statedWithout argument

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Waiver of Objection

UntimelyFailed to specify groundsDid not alert the presiding officer to the proper course of actionDid not enable opponent to take proper corrective actions

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Role of the Hearing OfficialEnsure a full, fair and impartial hearingDevelop a record leading to a decision, fact-findingProvide a record for appeal

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Performance GoalsProper evidence will be admitted Irrelevant areas will be avoidedPresentation will move smoothlyRancor will be minimizedRecord will be clear

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Ruling on ObjectionsIf 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, irrelevantOverrule a general objection, i.e. “incompetent, irrelevant, immaterial.”

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Ruling on ObjectionsSustained

Valid objectionEvidence not admitted (not received)Not received into evidence

OverruledEvidence not subject to the stated objectionEvidence admitted Received into evidence

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Delay in RulingAsk for additional explanation or argument

Confine to what is helpful to the rulingNot argue the case

Admitted subject to the objectionPermit witness to testify so have an opportunity to hear the testimonyRule by the end of the proceedingRule in the written decisionDanger of forgetting to rule, implying overruled

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The Record

ObjectionGroundsRulingWhat was admittedWhat was excluded (offer of proof)

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To the Form of a Question

To Admission of Evidence

Two Categories of Objections:

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LeadingToo generalCalls for a narrativeAsked and answeredUnintelligible or ambiguous

Objections to the Form of a Question

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Harasses or embarrasses ArgumentativeCalls for speculationMisstates evidenceAssumes facts not in evidence

Objections to the Form of a Question

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

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ExampleHendrickson v. Olson, 2009 ND 16, at ¶ 5, 760 N.W.2d 116.

“What you’re doing is actually testifying.”

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Leading Questions Allowed PreliminaryUndisputed mattersWitness unable to testify

meaningfully without leading Adverse or hostile witnessDuring cross-examination

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Relevant evidence is admissibleMateriality merged into relevancyRelevant: tending to make a fact in issue more or less probableGoes to the weight, not the admissibility Relevant evidence may be excluded if “unduly repetitious”

Objection to Admission of Evidence:

Hearsay

Is it hearsay?Does the hearsay rule apply?Does an exception apply?

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Competency of the WitnessWithin the personal knowledge of the witnessAbility to perceiveAbility to rememberAbility to communicateAppreciation of the oathFact vs. opinion

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Opinion Evidence

Opinion of a Lay WitnessOpinion of an Expert

Lay Opinion First hand knowledgePerceived observationMatters generally understood

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Opinion of an Expert Qualified by knowledge, skill, experience, or educationWill assist the trier-of-factFacts or data reasonably relied uponFacts or data need not be admissible

Thank youThank you

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