Appeal Hearing Officer Handbook - Evidence

400 Evidence - Introduction

  1. A number of statutes, rules and regulations governing administrative hearings before state agencies provide that the Hearing Officer or tribunal shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure. Even in the absence of such provisions, the courts have ruled the same way.
  2. Rules of evidence have been developed over hundreds of years of experience. They are grounded in principles of fair play and common sense. The rules of evidence in common law are the product of the system of trial by jury. They were aimed to protect from false reasoning, a temporarily convened tribunal of laymen, the jury.
  3. Although the statutory rules of evidence are not binding upon administrative tribunals, they may be used wherever necessary to achieve substantial justice. Distinction must be drawn between the freedom of the Hearing Officer to receive evidence which would be excluded in a court of law and to use such evidence in making findings of fact and conclusions of law. The basic test of admissibility is whether there exists a reasonable "guarantee of trustworthiness". If not, the evidence has little or no probative force.
  4. While Hearing Officers may receive certain evidence which would be excluded under some of these rules in a court of law, a knowledge of such exclusionary rules is extremely useful in evaluating and weighing evidence and in determining what evidence is needed in order to arrive at a fair decision. Further, these rules of evidence have many exclusionary provisions which show what kind of evidence is clearly admissible.
  5. Although exclusionary rules of evidence are not binding in administrative hearings, there must be some limitation on the admission of evidence. To admit all evidence that may be offered, however remote from the issues and however untrustworthy, would often not only mean delay, but would result in intolerably long and confused records. In this connection, every effort should be made by the Hearing Officer to limit irrelevant testimony or evidence. Conversely, every effort should be made by the Hearing Officer to obtain all relevant evidence. Although almost any oral or documentary evidence may be received by the Hearing Officer, it does not give the Hearing Officer carte blanche to consider that everything and anything is of probative value. That is one reason the Hearing Officer should be acquainted with the legal exclusionary rules and should understand how they would apply to offered evidence. When the Hearing Officer refrains from applying them, the Hearing Officer should have a cogent reason for doing so. Conversely, the Hearing Officer should avoid applying the exclusionary rules mechanically.
  6. When attorneys are appearing before the Hearing Officer they may wish to offer objection to testimony. At that time the Hearing Officer should explain the end result of the hearing is to obtain facts. The attorney should also be assured that the decision of the Appeal Tribunal must be supported by admissible, valid, and legal evidence and that for this reason we rarely exclude from the hearing of the Hearing Officer any evidence which is offered. In the event they insist on making the objection, the attorneys will usually be satisfied through the use of a phrase such as, "Objection is overruled and you may have your exception noted in the record."
  7. Where the Hearing Officer is inclined to exclude evidence but is in doubt on the question of its competency, relevancy, or materiality, the evidence should be admitted and appropriate weight given in arriving at a decision. It is better to have a complete record than a limited one.
  8. In the Model State Administrative Procedure Act it is stated: "Agencies may admit and give probative effect to evidence which possessed probative value commonly accepted by reasonably prudent men in the conduct of their affairs."
  9. It is important that the Hearing Officer bear in mind that in the following sections in this handbook relative to evidence, the use of the word "inadmissible" actually means that the particular evidence which is inadmissible cannot alone and without other admissible evidence be used to support a decision. Therefore, the following should be read with the thought in mind that "inadmissible" is equal to "insufficient" to support a decision. There are virtually no rules of exclusion. Any evidence presented by the parties, their witnesses, or representatives which is reasonably relevant, and not unduly repetitious should be admitted.

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401 Definitions and Terms

  1. Evidence includes all the means by which an alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. Evidence is the medium of proof.
  2. Proof is conclusion arrived at by a consideration of the evidence. Proof is the result of evidence.
  3. Testimony means statements taken under oath or affirmation.
  4. Evidence, which includes testimony; may be either documentary or oral in nature.
  5. Facts are what a witness has seen, heard, smelled, felt or tasted. The general rule is that a witness must speak of facts alone. The witness may not utter opinions, conclusions or references.
  6. Circumstances are collections of facts. Inferences can be drawn from facts and circumstances.
  7. Evidentiary facts are primary facts which are obtained from testimony. They are the building blocks with which you construct the house or the ultimate facts.
  8. Ultimate facts are derived from evidentiary facts and lead to or result from a conclusion drawn from the existence of the evidentiary facts and upon which the law must be imposed to arrive at a conclusion of law.
  9. Conclusions of Witnesses are statements a witness makes and believes but did not witness or know from personal knowledge. They may be based on two or more separate facts.

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402 Kinds of Evidence

  1. Direct or Firsthand evidence is proof of the facts in issue communicated to the trier of the facts by witnesses having actual knowledge of them by means of their senses. Such proof would involve information actually seen, heard, touched, tasted or smelled by the witness. Direct or firsthand evidence carries the greatest weight in a hearing.
  2. Circumstantial evidence is proof of collateral facts, where circumstances are shown from which the inference may be drawn that the principal and essential facts existed, in such a way that the proof is irreconcilable with any other theory that can be presented. Circumstantial evidence is good evidence which should not be ignored.
  3. Documentary - Writings, instruments, inscriptions and documents of all kinds.
  4. Real - Objects, exhibition of parts of the body, premises.
  5. Pictures - Photographs and moving pictures which are true representations, x-ray plates.
  6. Diagrams and Models
  7. Maps
  8. Positive evidence - Proof that a certain fact does exist or did exist is positive evidence.
  9. Negative evidence - Proof that a fact does not exist or did not exist is negative evidence. Usually, positive evidence about a particular fact is considered stronger than negative evidence as to the same facts.
  10. Prima Facie Evidence - (The Latin phrase "Prima facie" literally means "at first view". Prima Facie evidence, which if unexplained or uncontradicted, would establish the fact alleged.
  11. Self-serving Evidence or Testimony - Testimony, letters or documents submitted as evidence which are self-serving or in a person's own favor are usually inadmissible in evidence.
  12. Telephone Conversations - Before proof of telephone conversations may be admitted, it is necessary that the identity of the speaker be sufficiently authenticated. Such authentication may be based on recognition of the voice because of prior or subsequent conversations with the same person or may be based on action of the speaker subsequent to the telephone conversation.
  13. Hearsay or Secondhand evidence is a statement of a witness regarding matters the witness does not personally know but has only heard from someone else. Such evidence is admissible in a hearing but does not carry as much weight as firsthand evidence.

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403 Reasons for Rules of Evidence

  1. The object of evidence is to inform the trier of the case of the material facts bearing upon the issues, in order that the truth may be discovered and a just determination of the controversy reached.
    1. The Rules of Evidence have been tested by years of experience and found effective.
    2. They have evolved and changed gradually in keeping with the times either by legislation or court interpretation.
    3. It is important to know what is or is not admissible in order to "gather in" the reliable evidence, or evidence with probative force.
    4. Their purpose is to establish the truth.
    5. They restrict trials to the germane issues of the dispute.
    6. They are designed to reduce delays during trials by excluding excursions into matters outside the germane issues.
    7. They are comparable to the "ground rules" of most contested sports.
    8. They are brought into play while the "contest" is on.

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404 Stipulations (Rule 16.3(B)), 40 TAC §815.16

  1. The parties to an appeal, with the consent of the Appeal Tribunal, may stipulate in writing the facts involved. The Appeal Tribunal may decide the appeal on the basis of such stipulation, or in its discretion, may set the appeal for hearing and take such further evidence as it deems necessary to enable it to determine the appeal.
  2. While the rules require, under our practice and procedure, that stipulations be in writing, it is believed that the same purpose can be served and much more quickly and easily by dictating as a part of the appeal hearings, such stipulations as have been reached by the parties and having the parties under oath identify the stipulations which have been dictated as the stipulations they have made and that they have agreed mutually to these stipulations.
  3. Stipulations are usually made for the purpose of saving the time of the Hearing Officer and the parties. However, they have no value in uncomplicated hearings because testimony may be secured from the parties as easily as stipulations could be drawn up and agreed to. It is not good practice to attempt to use stipulations unless the parties are represented by counsel.
  4. Where parties enter into a stipulation with regard to the facts in the case for the purpose of evidence, it is in the case for all purposes until the litigation is ended or until the trier of the case, upon application, should relieve the party therefrom.

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405 Facts and Opinions

  1. Facts are testified to by witnesses having personal knowledge.
  2. Opinions are rendered by experts who are qualified and not under compulsion to testify.
  3. Qualifications. By the qualification of an expert is meant testimony under oath by the expert or some other witness who has knowledge of the facts, that the expert witness has training or experience of sufficient nature, length, or dignity, as would cause him to have a reasonable basis upon which he/she can base an opinion which will have probative force. To illustrate, one of the most common sources of "expert" testimony required in our hearings is the opinion testimony of Commission representatives as to what the wage range is in a particular labor area for a particular occupation and for the particular skills, capabilities and experience that a claimant possesses. Several years and wide experience in dealing with claims examining or investigating cases for the Benefits Department as well as placement experience certainly should furnish adequate background upon which the opinion of the witness may be based. The witness is said to be qualified as the result of these facts. Proper cross-examination, for instance, of such a witness would entail attacking the fact of the witness' knowledge and acquaintance with the particular subject with respect to which the witness is expressing an opinion or delving into the reasons the witness is expressing an opinion to be as testified. Cross-examination would also be pertinent of such an expert witness to determine why and how the witness arrived at the opinion.
  4. Opinion is reasoning, based on facts, such as: cause and effect, values, handwriting, blood specimens, cause of injury or death, mental condition and damages.
  5. A layman need not be qualified to give opinions relative to speed, intoxication, color, weight, size, quantity, state of emotion, apparent physical condition, identity and likeness, identification of person by their voice (over telephone), estimated age, rational or irrational conduct, genuineness of handwriting.
  6. Conclusions. Bearing in mind that the Appeal Tribunal is attempting to elicit all facts possible about the issues, it is highly possible that witnesses who are not experts will testify to what at first glance is apparently an ultimate fact when in truth and in fact the so-called "fact" is nothing but a conclusion, or in other words, an opinion of the witness. While in judicial proceedings this type of testimony is wholly inadmissible, in our proceedings the opinion or conclusions of the non-expert witness has no probative force except it might show a state of mind or an intention which existed in the mind of the witness, for instance, at the time the witness did something or omitted to do something while under the apprehension that the conclusion was accurate.
  7. It is for the Appeal Tribunal to "conclude". The Appeal Tribunal's opinion as to the conclusion which must be drawn from the existence of certain facts may or may not agree with the opinions or conclusions of the witness. In any event where a different conclusion is compelled by the facts such opinion testimony by the non-expert witness should have no bearing on rebutting the conclusion of the Hearing Officer. However the giving of an opinion or a conclusion by a non-expert witness should be the signal to thoroughly explore why the witness reached the conclusion. The ultimate facts which lay behind the witness' conclusion or opinion may well be pertinent and helpful in the solution of the case.

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406 Affidavits

  1. An affidavit is a statement sworn to before a person authorized to take oaths and acknowledgments.
  2. Strictly speaking, the affidavits are inadmissible in judicial proceedings. However, there is a guarantee of trustworthiness in such affidavits in that they are made in proceedings which require an oath by witnesses and probably would fall within the definition of the crime of perjury as set in the Penal Code of Texas. The crime of perjury is punishable as a felony. This would seem to justify using these affidavits as proof of facts in our proceedings. The only fault of the affidavit is the inability of anybody to cross-examine the affiant.
  3. Occasionally, a document will be received which purports to be an affidavit but which lacks some of the necessary requisites of an affidavit. It may not be signed by the affiant or by the notary, or it may not bear the notary's seal. Such a document can, if furnished in response to a notice to appear for hearing, be used as an appearance by the party furnishing it but it should be given no more weight than the usual written but unattested document. The appearance should be shown as "(claimant) (employer) by unsworn statement."
  4. It has been our long-standing policy that more weight is given to sworn testimony of a hearing witness than is given to an affidavit executed by an individual not subject to the hearing examination; therefore, we must make our policy clear to a party attempting to introduce such evidence. If the party does not wish to produce the witnesses, the Hearing Officer should inform the party that the party must bear the risk of non-persuasion.

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407 Relevancy of Evidence

  1. What is relevant relates in some logical way to the principal fact. A fact is relevant to another fact when, according to the common course of events, the existence of one, either by itself or in connection with other facts, proves or renders probable, the existence of the other. Relevant evidence is not necessarily competent, i.e., "hearsay".
  2. Generally, it is irrelevant if the purpose of showing that a person did a particular thing at one time to prove that he did a similar thing at another time. Exceptions are where such proof is intended to show a regular or continuous course of conduct. Generally, the fact that a party is a habitual litigant is irrelevant. Proof of prior dealings between the litigants is irrelevant. Proof of prior dealings between the same parties may be relevant to show authority to act. Generally, the wealth of a party is irrelevant and inadmissible.

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408 Administrative Notice

  1. Administrative notice covers undisputed matters of which a trier of the case will take notice, as within general knowledge, although no evidence thereof is introduced. Administrative notice is taken of matters which are of such general and public knowledge that everyone is presumed to be acquainted with them. In court proceedings this notice is referred to as judicial notice.
  2. Examples of Matters of Fact:
    1. Historical events,
    2. The course of nature,
    3. Mortality tables,
    4. Intoxicating nature of certain beverages,
    5. Geographical facts,
    6. Census Statistics,
    7. Meteorological data on certain days,
    8. Official weather reports.
  3. Examples of Matters of Law:
    1. Statutes of the state,
    2. Acts of Congress,
    3. Traffic regulations of a city,
    4. Court procedures,
    5. Authority of public officers.
  4. Laws of other states or foreign countries may be administratively noticed in the discretion of the tribunal.
  5. The nature of proceedings before an Appeal Tribunal require a Hearing Officer to include as part of the hearing record any facts that the Hearing Officer intends to administratively take notice. This practice avoids surprise on the part of the parties when the parties receive the decision. It also provides for rebuttal by the parties which should be helpful to the Hearing Officer in guarding against taking notice of events which do not meet the requirements.
  6. The Appeals Department is required to mail documents relevant to an appealed determination/decision to all parties for the hearings. These documents, referred to as the Information Packet, include the notice of application for unemployment benefits (if applicable to the issue on appeal), any protests to a claim, information the Commission received in response to a claim, any fact-finding statement taken during the investigation and the appeal itself. The Information Packet is mailed in the same envelope with the Notice of Telephone Hearing. To verify that the parties have received the Information Packet and the Notice of Telephone Hearing, the Hearing Officer shall take "administrative notice" that relevant agency documents and notice were sent to both parties. The parties shall be asked to acknowledge such receipt. At this point, an inventory of the documents shall not be necessary. While the Hearing Officer shall permit objections to be raised about the taking of "administrative notice" of the Information Packet, the Hearing Officer shall also inform the parties that "notice" was being taken only as to the receipt and not as to the accuracy or as to the credibility of the documents contained therein.

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409 Presumptions

  1. Definition: A presumption is an inference drawn from particular facts or from particular evidence, unless and until the truth of the inference is disproved. A presumption is indulged to supply the place of facts and disappears in the presence of substantial evidence to the contrary.
  2. Presumption of Fact: A presumption of fact is made upon principles of induction. It is an inference drawn by a logical process of reasoning from observation, experience or other admitted facts. Every inference must stand upon some clear, direct evidence and not upon some other inference or presumption.
  3. Presumption of Law: There is a rule of law and part of the law itself. For example, the presumption of death after seven years' unexplained absence. A presumption of law is subject to the same condition as a presumption of fact, in that it disappears when substantial evidence to the contrary is introduced.
  4. Conflicting Presumptions: Where there are conflicting presumptions of unequal weight, the stronger will prevail.
  5. Examples of Presumptions:
    1. A fact continuous in its nature is presumed to continue to exist.
    2. The continuance of law in force is presumed.
    3. Identity of name is presumptive evidence of the identity of person, where there is similarity of residence or trade or where the name is an unusual one.
    4. It is presumed that an instrument was made at its date and that it was delivered at the time of its date.
    5. Delivery of an instrument is presumed from possession thereof.
    6. Legitimacy of children is presumed.
    7. Knowledge of the contents of their books is presumed when members of a firm have access to them and an opportunity to know how their accounts are kept.
    8. It is presumed that parties know the terms of their contracts.
    9. Mailing of letters. It is presumed that a properly addressed and stamped envelope, deposited in a post office or regularly maintained post box, reaches its destination.
    10. If the proof is that such mailing took place in the regular course of business without direct testimony of the person who mailed the letter himself, it does not give rise to the presumption of mailing the particular letter involved.
    11. A letter of communication is presumed to have been mailed on the date shown by the postmark. However, this is rebuttable by proof of the actual time of the mailing.
    12. addressed and transmitted.
    13. Telegrams are presumed to be delivered, if properly It is presumed that public officers do their duty in good faith.
    14. It is presumed that a person in possession of personal property is its owner.
    15. Where alleged services are rendered by a relative or close friend, it is presumed, in the absence of agreement, that they were given voluntarily, gratuitously and without expectation of pay.
  6. No Presumptions: Fraudulent intent is not presumed. Payment is not presumed by lapse of time except where various statutes of limitations which outlaw certain debts and obligations apply.
  7. Presumption on Presumption: A presumption cannot be based upon another presumption. Presumptions arise only as the result of the existence of facts and must be based only on facts.

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410 Hearsay Rule

  1. Hearsay is a statement of a witness relative to matters the witness does not know but has only heard someone else say.
  2. Technically, hearsay is defined as a statement as to the existence or non-existence of facts by some person, not under oath as a witness, made outside the presence of the court, without the opportunity of cross-examination of the person making the statement where the statement is introduced to prove the truth of the facts contained in such statement. The one necessary element in determining whether any evidence offered is hearsay and inadmissible (where it lacks a guarantee of trustworthiness) is whether the statement is introduced to prove the truth of the facts contained in such statement.
  3. Examples of utterances which ordinarily would meet the test of the definition of hearsay but nevertheless are not hearsay and are admissible are:
    1. Testimony of a witness that he heard a third party say that he was feeling unwell, where such evidence is offered to show not the truth of the facts contained in the statement but that, at the time the utterer made the statement, the declarant was conscious and able to talk.
    2. Reports made by expert appraisers when the report is offered in evidence not to show the truth of the facts contained in the report but the fact that an appraisal had been undertaken.
    3. Report of administrative agencies where the report is offered not to show the truth of the facts contained therein but to prove that an administrative agency has considered a certain matter.
    4. All of these examples are not hearsay because they do not meet the last and most important element of the definition of hearsay.
  4. In a court of law, hearsay evidence is generally inadmissible unless it comes under one of the recognized exceptions to the rule, but in administrative appeal hearings, hearsay is admissible even if it does not come under one of the exceptions. The decision in an administrative appeal hearing is based upon the weight of the evidence. Hearsay testimony can be admitted as evidence into the record; however, such evidence will not carry as much weight as firsthand testimony. Generally, greater weight must be given to direct testimony under oath that is subject to cross-examination than hearsay testimony or unsworn written statements, including those which result from investigations by TWC representatives. (See Section PR 190.00 Appeals Policy and Precedent Manual)

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411 Exceptions to the Hearsay Rule

  1. Each of these exceptions, it will be noted, is based upon the existence of a guarantee of trustworthiness because they are based upon some situation which gives to the class of declaration in question an average reliability greater than those of hearsay declarations generally. It will also be seen that these declarations are made under circumstances which would reasonably indicate that the declarant is speaking in a natural unforced way and for purposes other than litigation. The listed exceptions hereinafter do not include certain exceptions with which the Hearing Officer will not conceivably deal in Appeal Tribunal hearings under the Texas Unemployment Compensation Act.

    Keep in mind that all of the following are examples of hearsay. The hearsay statements will be given the same consideration as other evidence, which is not of a hearsay nature, if certain conditions are met; that is, if they fall within one of the exceptions. It is the Hearing Officer's responsibility to make certain that the conditions for each exception are met before the hearsay statements are given the same evidentiary weight as other non-hearsay evidence.
  2. Declarations as to bodily condition of the declarant. An example of evidence which is admissible under this exception to the hearsay rule is testimony that the witness heard the victim of an accident say, "My head aches" for the purpose of proving that the speaker did then have a headache.
  3. Declarations as to a state of mind. Here again is a guarantee of trustworthiness in that the statement, to come under the exception, must have been made under circumstances free of suspicion and made before the declarant had any reason to falsify. For this reason, the exception is confined to a description of the mental state at the time of the declaration. An example of this exception would be testimony of a witness that the witness had heard another state, "I hate 'X' and intend to kill 'X'." This statement is admissible to show that the declarant did actually hate "X" and did at that time when he made the statement intend to kill "X".
  4. Spontaneous declarations as to objective facts. Here again the reliability of the testimony justifies admissibility of this type of hearsay. Examples of this type of admissible hearsay statements are declarations made by persons injured in accidents and those made by victims of crimes of violence when the witness testifies that the declarant had uttered them under circumstances that reveal that such statements were absolutely spontaneous. Generally, to be admissible they must have been provoked by startling or unusual events and must have been declarations which were, in the sense that they were not forethought, almost involuntary. One of the guarantees of the reliability of this type of exception to the hearsay rule is that they are made under circumstances which would give no time to fabricate facts contained in the statement.
  5. Evidence in previous proceedings. Generally, in judicial proceedings the requirement for the admissibility of this type of hearsay as an exception to the hearsay rule is that the witness be dead or not available to testify in a subsequent proceeding. Generally, it requires the same parties and the same issues.
  6. Declarations and statements of fact against interest. When it is considered that this exception to the rule prohibiting the admissibility of hearsay testimony rests upon the fact that the utterance is against the pecuniary or proprietary interest of the declarant it is obvious how such a declaration has a great degree of reliability. These types of statements must not be confused with admissions which are dealt with hereinafter. They only concern financial interests against which the declaration is opposed. A good example is that the witness testifies that an employer stated that the employer owed the claimant a salary check and had not paid the claimant. The admissibility for instance of this form of testimony would go a long way to disprove the employer's sworn testimony at the hearing that the employer did not owe the claimant any money.
  7. Admissions. To be admissible such statements must have been made at a time when the declarant had no motive to falsify. They are sometimes described as admissible because the declarations are contrary to a position which the party is taking at the subsequent date of a proceeding which has arisen upon the fact admitted prior to the proceeding. When admitted in evidence and when weighed against the position which the interested party (the declarant) is taking at the appeal hearing, this type of evidence is of great probative value. Since the later contrary position has been taken after it became apparent to the declarant that a former declaration will hurt the declarant, the guarantee or reliability of such previous declaration is obvious on its face. Perhaps this exception and the "Statements Against Interest" rule are the most reliable of these exceptions and have great probative influence. Let it not be understood that these statements by way of admission are incontrovertible. When once admitted in evidence they are like any other evidence which must be weighed to determine where the greater weight of the competent legally admissible evidence would lie.
  8. Acquiescence. One particular admission which will probably be important to the Hearing Officer is the question of silence or acquiescence. While the ancient maxim, "Silence gives consent" states a broad principle, it does not, without qualification, represent a practical rule of law. At most, silence warrants an inference of assent of correctness to a comment only when no other explanation is equally consonant with silence. In other words, silence may be treated as an admission only when one ought to speak. The rule may be stated as follows: Where a statement is made in the presence of a party under such circumstances that the party heard and understood what was said, had an opportunity to reply, and would naturally have replied unless the party admitted the truth of the statement, the silence may be received as a tacit admission of its truth.
  9. Regular entries in the books and records of a business. The guarantee of trustworthiness of this type of evidence is found in the fact that the entire business of the country is conducted on such records and the records are frequently checked as to correctness by systematic balance striking. Since many types of this kind of evidence may come in and be admissible under some of the other exceptions to the hearsay rule, the application of this particular rule requires certain facts to exist to make these documents admissible only under this exception. The requirements are:
    1. The witness who made the entries is not available or present at the hearing.
    2. The documents must be books or records of original entry, such as payroll records, day books, cash books, journals, ledgers, slips and other like memoranda.
    3. Entries must have been made within a short time after the transaction.
    4. The entries must be "regular" entries and must bear an apparent fairness on the fact of the record and be free from suspicion or alteration.
    5. The information in the documents must pertain to the business of the offeror. The rule respecting this type of evidence has been broadened to extend to birth records, attendance records, and the like.
    6. The documents must be authenticated or proven to be what they purport to represent. The proof must comply with the above requirements and in addition thereto that they were relied on in the conduct of the business.
  10. Office written statements or public documents. Books, documents, and records of a public nature which are required by law to be kept, are "prima facie" evidence because they are made by disinterested persons in the discharge of a public duty with no reason to falsify such entries. In this type of evidence we have a guarantee of trustworthiness in the fact that the statement was made in the line of an official duty by an officer who is sworn to perform that duty in addition thereto they are public records open to inspection and correction. The statements must be in writing and to be admissible under this exception must be authenticated by the signature of the official charged with the duty of authenticating the record or recording the facts contained in the written statement. It must also contain the imprint of a seal where there is a seal authorized for such officer.
  11. Evidence as to reputation. Testimony of this character is admissible because of two factors:
    1. The inherent difficulty of obtaining any satisfactory evidence of the desired fact other than proof of tradition and reputation create a necessity for this evidence; and
    2. The fact that a prolonged observation and discussion of certain matters of general interest by a whole community will sift possible errors and bring the result down to us in a fairly trustworthy form. An example of this type of testimony would be the testimony of the witness as to the general moral character of a person and the person's reputation for truth and veracity and as to whether the witness would or would not believe a statement made by such person.

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412 Handling Documentary Evidence

  1. As a matter of routine, the Commission mails relevant separation and timeliness information in its custody to both parties along with the notice of hearing. Included in each case file are copies of the Information Packet and the Notice of Hearing that are mailed by the Commission to parties prior to the date of the scheduled hearing. The Information Packet includes all information received from the parties in response to, or in protest to the claim, as well as all fact-finding statements relating to the work separation and the appeal itself. The Hearing Officer will take "administrative notice" that both the packet and the hearing notice were sent to the parties, but will not formally introduce them as exhibits. Any documents within the packet that either the Hearing Officer or one or both parties wish to enter as an exhibit will be handled at the appropriate time under existing procedures for handling exhibits. (See 412.2--412.5 of this subchapter).

    Parties do not have the option of waiving receipt of the Information Packet on a case involving a work separation issue.
    1. If a party in a telephone hearing sends a copy of a document to the Hearing Officer, which was not previously sent to the Commission, nor was included in the information packet, and which was not sent to the opposing party, the Hearing Officer should first determine the relevancy and materiality of the offered document. If the document is not relevant and material, the document should be excluded and the Hearing Officer should continue in the development of the record. The Hearing Officer must clearly state the ruling regarding this on the record. If the Hearing Officer determines that the document is relevant, the Hearing Officer should attempt, if possible, to fax the document to the other party. If successful in this attempt, the hearing should proceed as usual. If faxing of the document is not a viable alternative, the Hearing Officer should inquire of the other party whether the party is willing to waive review of the document. If the other party has no objection, the Hearing Officer should describe the document and enter the document into the record. If waiver cannot be secured, the Hearing Officer should inform the parties that it will be necessary to continue the hearing at some point to enter the document into the record. Before effecting a continuance, the Hearing Officer should complete as much of the hearing as is possible without discussion of the document. The Hearing Officer should never use the fact that a party did not receive a document as basis for denying the document.
    2. If the offering party in a telephone hearing did not mail a document to either the Hearing Officer or the other party or neither the Hearing Officer nor the other party received the document, the Hearing Officer should inquire about the contents and nature of the document in order to determine whether the document is relevant and material. If the document is not relevant and material, the Hearing Officer should rule that the document is not relevant and material, and should continue with the development of the record. If the document appears to be relevant and material, the Hearing Officer should try first to complete as much of the hearing as possible before effecting a continuance. The offering party should be advised to mail or fax to the Hearing Officer and the other party, any document(s) that are to be entered into the record during the next hearing.
    3. If a party in a telephone hearing refers to a previously undisclosed document, the Hearing Officer first shall determine relevance and then attempt to have the document faxed to the other party, ask for a waiver, or postpone the hearing. If the hearing is not postponed and the document is not faxed, the Hearing Officer shall determine the length of the document. If the document is three pages or less and relevant, the witness shall be instructed to read the entire document into the record. If the document is more than three pages and relevant, then the Hearing Officer shall require the witness to read all relevant portions of the document or shall postpone the hearing. In those situations where the document or a portion of it was read into the record, then the Hearing Officer shall instruct the party presenting the evidence to send within five calendar days a copy of the entire document to the Hearing Officer and the other party. The Hearing Officer shall label all proposed exhibits and consider objections regarding admissibility from any party. (See subchapter 316.14 of this Handbook)
  2. The Hearing Officer, in the conduct of a hearing, should be acutely aware that the Hearing Officer is, in effect, creating an "appellate" record by use of a recording machine. The recording machine, needless to say, is blind in that the only thing it does is to record voices. Many otherwise fine records are ruined where the Hearing Officer fails to take the following steps.
  3. The steps to be followed in this manner each time, are as follows:
    1. When documentary evidence is sought to be introduced and made a part of the record, the Hearing Officer should identify the document in some convenient location such as the upper right corner, as Exhibit #1, etc. Other documents should likewise be identified using a consecutive Arabic numerals regardless of which party offered the exhibit. However, the Hearing Officer may identify which party offered the document. If there are reopenings, the Hearing Officer continues with the numerical sequence..
    2. The document should be authenticated by testimony establishing that it is what it purports to be.
    3. An opportunity to examine the proffered document should be afforded to all interested parties.
    4. A party or their representative who wishes to object to the introduction of evidence, should be allowed to state their objection and the basis therefore on the record.
    5. A witness who is testifying with respect to any documentary evidence should identify the documents in the testimony as "Exhibit #10" or some similar statement. Many witnesses will testify as to "it", "them", or "this" without identifying what they are talking about causing ambiguity of the record.
  4. Hearing Officers should mark each exhibit with an exhibit label. Preprinted exhibit labels are normally provided for each hearing. The label should be affixed to an unobtrusive place preferably on the first page of the exhibit. Subsequent pages of multi-page numbered exhibits should be numbered 2 of 8, 3 of 8 and so forth. The first page of the exhibit should identify the total number of pages in the exhibit. In the case of extremely long exhibits, the initial page should be labeled and the total number of pages identified.

    The Hearing Officer when accepting an exhibit into the record should not only mark the exhibit, but should state for the record that he/she is marking the identified document as Exhibit x and for which party.
  5. The Hearing Officer should obtain either the original of a document or a true and correct copy thereof. No evidence may be accepted into the record that cannot be made a part of the record and retained. An exception may be made for bulky objects not subject to being kept with the file. In such case, a photo of the object might be secured from the party.
  6. When a party does not have a copy of a document, the party may waive the right to have a copy and the document can be described or read for them by the Hearing Officer. Waiving the right to a copy is distinct from offering an objection to admissibility and these should not be combined into one question.
  7. A party or witness should not read or refer to documents unless those documents are entered into evidence. Employer computer records are documents also, and if they are used as evidence, should be printed out and mailed to the Hearing Officer and the claimant. A party may look at various records or notes to refresh their memory; however, if they are going to be read or discussed in the hearing, copies should be obtained and entered.
  8. Any document sent to the Hearing Officer prior to the hearing is considered offered as a potential exhibit and cannot be ignored by the Hearing Officer. The party is not required to "bring it up" during the hearing for the exhibit to be considered offered. The Hearing Officer must either admit the document or rule on the record why it is not being admitted. Any document referred to during the hearing is also considered a potential exhibit and cannot be ignored. This would include file documents and documents that the parties may not have sent to the Hearing Officer.
  9. Exhibits should not be written on or defaced by the Hearing Officer other than what is needed to properly identify the document. It is permissible to note the date and time of receipt if necessary. The exhibit label should not cover the information on the document.
  10. A document should be entered as contemporaneously as possible to the time it is discussed in the testimony. It is permissible for a few questions to be asked to lay a foundation fo the document, but it should be entered as soon as possible. The Hearing Officer should not wait until the end of the hearing to enter all of the documents.
  11. The Hearing Officer should be familiar with all file documents including the fact finding statements of the investigation. If any party gives testimony that appears to be in conflict with their previous statement in the file, the party should be confronted with that file document. The appropriate method is to enter the file document as evidence and then ask the party to explain the apparent inconsistency. Any file documents referred to in the hearing must be either entered as exhibits or a ruling made on the record as to why they are being denied.
  12. File documents may not be used or read in the hearing unless they are entered as exhibits.
  13. No document should be used in a decision unless it has been entered as an exhibit.
  14. The Hearing Officer should be liberal in admitting any documents offered that might be considered material and relevant to the issues.

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413 Best Evidence and Parol Evidence Rules

  1. Best Evidence Rule. This requires a party to produce the best evidence of which the case in its nature is susceptible. The use of substitute or secondary evidence is forbidden when the original or primary evidence can be had. This rule is literally interpreted. Trustworthy copies (photostats) are usually admissible in the first instance. The rule relates entirely to documentary evidence. If a writing is collateral to the principal fact, it is not necessary to produce it. Collateral matters are not within the rule.
  2. Secondary evidence of the contents of a writing may be offered where it is shown that the original is lost, destroyed, or without the jurisdiction and unavailable.
  3. Where any form of a written agreement is in the case, or, where a series of written communications represent the agreement, the Hearing Officer should be extremely careful to make every effort to obtain either the original or an authenticated copy and introduce it in evidence after authentication and to adhere to the procedure with respect to written evidence provided for above. The best illustration of the necessity of observing this lies in a case where both the claimant and the employer and all the witnesses testified that a written contract contained a particular provision which was important to the decision and, in fact, the crux of the particular case. There was unanimous agreement that this provision was contained in the written agreement. However, a copy of the written agreement was obtained by the Hearing Officer and the agreement was found to be lacking in the particular provision that all witnesses testified was in the written agreement. It was then obvious that the witnesses had been testifying as to their opinions or conclusions as to what the contract meant and had given the Hearing Officer the impression that they had been testifying to ultimate facts. Without obtaining written instruments it is impossible for the Hearing Officer to place a legal construction on the agreements as to what they mean or what they contain. It is the responsibility of the Appeal Tribunal to construe these instruments and not the responsibility of the parties or the witnesses.
  4. Parol Evidence Rule. The foregoing is particularly true where a written agreement is clear, unambiguous and contains all of the elements necessary to a contract and is complete in its details. If this situation obtains, the Hearing Officer must be aware that a rule called the "Parol Evidence Rule" prohibits oral testimony from being considered to change, add to, modify or vary in any respect the express terms of the clear and unambiguous contract. In short, the written contract will govern, and not the oral testimony, regardless of whether or not it is admitted in evidence in the record of the hearing.
  5. Notwithstanding the above-mentioned prohibition of oral testimony to vary the terms of a written contract, the rule is not applicable where the contract is ambiguous or not clear in its terms. Parol evidence may be introduced from the parties to straighten out the lack of clarity or correct the ambiguity. Likewise, if the contract is not complete but the other parts are clear insofar as the contract goes, parol evidence may be used to supply the missing part of the contract but not to affect the clear parts of the contract.
  6. In connection with the foregoing, the Hearing Officer must notice that the law in some cases makes use of "customs and usages" which have obtained in an industry or in a particular business. The principle governing the admission of evidence of customs or usage of the trade or locality to supplement a written instrument is the same as that which determines the admissibility of a collateral agreement. Where, from all the circumstances including the terms of the writing and of the custom or usage sought to be introduced, it appears to the Hearing Officer that the writing was designed to be the embodiment of the transaction, the custom or usage relating to the same subject matter is not competent and will not support a decision. On the other hand, if it appears that the custom or usage is that the writing might well have been in contemplation of a custom and with the expectation that the custom would be used to supplement its terms, the latter is admissible and useable in the decision.
  7. It is easier to infer that the custom or usage was intended to stand with the contract, than that a collateral agreement was so intended, for the probability is usually strong that the terms of an outside agreement would have been incorporated in the writing if not meant to be superseded, but the custom or usage would usually be tacitly accepted as part of the understanding without it being thought necessary to set it down in writing. The question, therefore, is whether the custom or usage is so inconsistent or repugnant to the probable purpose of the writing as that the parties by their writing intended to depart from it. If so, evidence of the custom or usage will be excluded otherwise it will come in.
  8. It must also appear that the custom must be almost invariably observed and followed in the industry or locality for a sufficient length of time as to render the knowledge of such custom so widespread as to impute knowledge thereof to all parties, before evidence of such custom will be allowed to vary the terms or add to a contract.

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414 Burden of Proof

  1. In unemployment insurance appeals, it is inaccurate to say that either party bears the burden of proof. Unemployment insurance appeals differ from the adversary proceedings of the traditional judicial proceedings. The courts will not take action unless the party seeking judgment can make out an affirmative case in its behalf. In the unemployment insurance appeal, the appellant's action in bringing the appeal is the occasion for an inquiry by the Hearing Officer into the facts of the case. This inquiry takes the form of a hearing on the appeal where it is the Hearing Officer's duty to elicit all the available facts and render judgment based upon the evidence. In a sense, it may be said that the Hearing Officer has the procedural burden of proof.
  2. When all the available evidence has been obtained, however, the Hearing Officer should not find the claimant eligible unless the record contains substantial affirmative evidence to that effect. Neither should the Hearing Officer impose or sustain a disqualification unless the Hearing Officer is affirmatively satisfied by substantial evidence that the facts call for a disqualification.
  3. Although there is no technical burden of proof upon any party to an unemployment insurance appeal, if important facts are peculiarly within the knowledge of a party, that party is under a duty to make a complete and candid disclosure of such facts.
  4. The agency has the responsibility for assuming the burden of coming forth with certain facts, for example, those possessed by the agency which the parties could not be expected to supply, such as, procedural data and economic data.
  5. Discharges. In all cases where Section 207.044 of the Act is concerned, the proof that misconduct existed and caused the discharge must be clear and it must be supported by a preponderance of the credible and legally available evidence before the Appeal Tribunal, or the employer will lose the issue. Thus, in that sense, the employer has the risk of losing the appeal if the facts do not show misconduct, although technically, the burden is on the Hearing Officer to obtain the facts if such are the facts in the particular case.
  6. Resignations. Considering the same problem in cases involving Section 207.045 of the Act, while the burden is on the Hearing Officer to produce the facts, good cause connected with the work for leaving the work must be established by clear and preponderant weight of the legally available testimony in the record of the hearing or the claimant will lose his/her appeal. Thus it can be said that in a sense a claimant suffers the risk of non-persuasion because claimant is in the position of suffering unless there is an affirmative showing that there was good cause connected with the work which served as the reason for claimant's resignation.
  7. Fraud Cases. In Section 214.003 cases the situation is slightly different to the extent that the Commission, or a division of the Commission, has in one sense of the word become an "adversary" to the claimant. The Commission has recognized the seriousness of the offense charged. Because the case does involve a forfeiture, which the law traditionally is said to abhor, the Commission has consistently held that the evidence must not be only preponderant to the effect that the person committed the fraud but the evidence must be "clear and convincing." This would seem to indicate that something more is required than mere equality of the evidence, pro and con in a fraud case. (See Forfeitures, Chapter 6).
  8. Weight of Evidence. Preponderance of Evidence means the greater weight of the evidence. In a civil case, the plaintiff must establish its claim by a fair preponderance of the evidence. The attitude, appearance, and acts of parties and witnesses may be taken into consideration and there may be deduced therefrom such inferences as fairly arise out of the given circumstances. The advantages of the trier of the case who saw and heard the witnesses should be considered and when the truth hangs upon the credibility of the witnesses, the conclusions of the trier of the case should be given the greatest weight.
  9. Prima Facie Case. When the party who has the burden of the proof has produced sufficient evidence to be entitled to judgment in favor of such party, a "prima facie" case has been made out. When the other side goes forward and presents evidence, such side may overcome the "prima facie" case. But see the discussion above as to the burden of proof in administrative appeals.
  10. Res Adjudicata. This means "the thing adjudicated." An existing final judgment rendered upon the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all other actions on the points of issue and adjudicated in the first suit.

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415 Credibility of Witnesses and Weight of Evidence

  1. In General. The two subjects described in the heading of this section of the manual are two distinct and different matters. They have been grouped together because they relate to each other. The determination of the credibility of witnesses, that is, determining which evidentiary facts are going to be accepted by the Hearing Officer must precede the second step. The second step is an analysis of the accepted evidentiary facts and the making of such analysis of them as will enable the Hearing Officer to arrive at the ultimate fact. The ultimate fact must be arrived at by the Hearing Officer, not by the witness.

    If a witness is detected testifying as to opinions or conclusions as facts, the witness should be meticulously questioned about the basis for such opinion or conclusion.
  2. Considerations To Be Given in Determining Credibility. One of the most important duties which rests on the Hearing Officer is determining the credibility of the witnesses. It is from the testimony of witnesses and the other evidence that the facts which are controlling in the particular case are "found" to be the facts by the Hearing Officer, so that the Hearing Officer may apply the law and reach a decision.

    To help the Hearing Officer arrive at the facts, the following suggestions are made respecting the credibility of witnesses in situations which will confront the Hearing Officer.
    The situation may arise where there is an apparent conflict in the testimony of two witnesses. This does not mean that the Hearing Officer has to find that one is not worthy of belief and that the other is. No person ever sees all of an event or comprehends all of a situation. Each person fills in the gaps in observation and comprehension from past experience. Two persons honestly describing the same event, therefore, will almost always give different descriptions.

    Testimony of witnesses is composed of evidentiary facts. (See Subsection 401.7) The Hearing Officer's search is for the ultimate facts. (See Subsection 401.8) Therefore, it is quite probable that some evidentiary facts from one witness and other evidentiary facts from another witness may be accepted by the Hearing Officer. From the evidentiary facts which are accepted it becomes the duty of the Hearing Officer to find what the ultimate fact is.
  3. Experience shows that the Hearing Officer will be greatly handicapped in doing a job properly if the Hearing Officer enters the hearing with the idea that most witnesses are untruthful. Most cases of perjury are exposed by interrogation from an experienced trier of the facts. If at all possible, the Hearing Officer should attempt to arrive at the ultimate facts by reconciling all of the testimony and the evidence.
  4. It may occur that part of the testimony of a witness may be accepted as true and the rest disbelieved. It is entirely permissible to give no credibility to the entire testimony of a witness who willfully testifies falsely as to a material fact. However, this is within the judgment of the Hearing Officer. A disinterested witness is not necessarily entitled to more credibility than an interested witness. However, in determining a witness' credibility, a lack of interest in the outcome may be considered. Also, showing a bias, hostility, or any emotion which would tend to convince the Hearing Officer that the witness was probably either deliberately or unconsciously giving testimony in such a fashion as to create a different impression than the actual truth of the matter, may well justify discounting the witness' testimony.
  5. Appraising and determining the weight of the evidence. When the terms "greater weight of the evidence" or "preponderance of the evidence" are used, it is meant that there are more evidentiary facts established which tend to establish an ultimate fact. To illustrate the difference between an evidentiary fact or set of facts and an ultimate fact, the question of whether a claimant was in employment or was independent should be given consideration. The evidentiary facts are such as the right to control, the right to stop work, what was the ultimate object of the performance of service, etc. The ultimate fact of whether the claimant was in employment is derived from weighing the evidentiary facts on one side against the evidentiary facts on the other.

    Generally, the evidentiary facts must first be established by applying the rule of credibility to the witnesses. Then, after these evidentiary facts have been established and weighed, the ultimate fact will be found to exist. For instance, the testimony in some respects would be conflicting between two witnesses who saw an automobile accident from two opposite points or from different sides of the street. In that case, giving greater weight to the testimony of the witness whose view was better than the other witness is not a matter of disbelieving one and believing the other.
  6. In determining the greater weight of credible testimony, the number of witnesses is not controlling. The testimony of a single witness, if believed, may be given sufficient credibility to establish either the ultimate fact or evidentiary facts from which the ultimate facts may be found.
  7. Generally, greater weight must be given to direct testimony under oath that is subject to cross-examination than hearsay testimony or to general reports made to the departments in the course of its investigation. Direct testimony may be disbelieved, however, where it appears unreliable, contradictory, or inherently improbable.
  8. It is the responsibility of the Appeal Tribunal to afford the parties a fair and impartial hearing, an opportunity to present their evidence, and obtain a just decision. To the extent that the underlying principles of evidence herein discussed are useful in achieving this goal, these underlying principles should be observed in Appeal Tribunal hearings. However, the efficiency of the Hearing Officer must not be hampered by too strict an interpretation of these rules.

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416 Substantial Evidence Rule

From Railroad Commission v. Shell Oil Company, 161 S.W. 2d 1022, 1029 (Texas Sup. Ct., 1942)

"In such a case, the issue is not whether or not the agency came to the proper fact conclusion on the basis of the conflicting evidence, but whether or not it acted arbitrarily and without regard to the facts. Hence it is generally recognized that where the order of the agency under attack involved the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the Court will sustain the order if the action of the agency in reaching such conclusions is reasonably supported by substantial evidence. This does not mean that a mere scintilla of evidence will suffice, nor does it mean that the court is bound to select the testimony of one side, with absolute blindness, over that introduced by the other. After all, the court is to render justice in the case. The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside."

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