Rules of Evidence — Affidavits — Official Notice

1. Law
2. Tennessee Code
3. State Government
4. Uniform Administrative Procedures Act
5. Contested Cases
6. Rules of Evidence — Affidavits — Official Notice

In contested cases:

1. The agency shall admit and give probative effect to evidence admissible in a court, and when necessary to ascertain facts not reasonably susceptible to proof under the rules of court, evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The agency shall give effect to the rules of privilege recognized by law and to agency statutes protecting the confidentiality of certain records, and shall exclude evidence which in its judgment is irrelevant, immaterial or unduly repetitious;
2. At any time not less than ten (10) days prior to a hearing or a continued hearing, any party shall deliver to the opposing party a copy of any affidavit such party proposes to introduce in evidence, together with a notice in the form provided in subdivision (4). Unless the opposing party, within seven (7) days after delivery, delivers to the proponent a request to cross-examine an affiant, the opposing party's right to cross-examination of such affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after a proper request is made as provided in this subdivision (2), the affidavit shall not be admitted into evidence. “Delivery” for purposes of this section means actual receipt;
3. The officer assigned to conduct the hearing may admit affidavits not submitted in accordance with this section where necessary to prevent injustice;
4. The notice referred to in subdivision (2) shall contain the following information and be substantially in the following form:

   The accompanying affidavit of  (here insert name of affiant)  will be introduced as evidence at the hearing in (here insert title of proceeding) . (Here insert name of affiant) will not be called to testify orally and you will not be entitled to question such affiant unless you notify   at (here insert name of proponent or proponent's attorney)  that you wish to cross-examine such affiant.    (here insert address) To be effective, your request must be mailed or delivered to  (here insert name of proponent or the proponent's attorney) on or before         (here insert a date seven (7) days after the date of mailing or  delivering the affidavit to the opposing party.);

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5. Documentary evidence otherwise admissible may be received in the form of copies or excerpts, or by incorporation by reference to material already on file with the agency. Upon request, parties shall be given an opportunity to compare the copy with the original, if reasonably available; and
6. 1. Official notice may be taken of:
      1. Any fact that could be judicially noticed in the courts of this state;
      2. The record of other proceedings before the agency;
      3. Technical or scientific matters within the agency's specialized knowledge; and
      4. Codes or standards that have been adopted by an agency of the United States, of this state or of another state, or by a nationally recognized organization or association.
   2. Parties must be notified before or during the hearing, or before the issuance of any initial or final order that is based in whole or in part on facts or material noticed, of the specific facts or material noticed and the source thereof, including any staff memoranda and data, and be afforded an opportunity to contest and rebut the facts or material so noticed.

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