Introducing Evidence

Why do I need to know about evidence?

This guide is designed to provide helpful information to a party wishing to introduce evidence at the Energy Commission's siting hearing. It is provided for information only and is not intended to provide legal advice or to address every situation that may arise in the administrative hearing process. Please seek the advice of a qualified attorney for answers to specific legal questions. The information in this guide is current through the date of publication, September 2004.

What rules apply to the introduction of evidence at Energy Commission's siting hearings and where can I find them?

The hearing need not be conducted according to technical rules relating to evidence and witnesses. (See Title 20, California Code of Regulations, section 1212.)

The rules governing the introduction of evidence at Energy Commission hearings are located at Title 20, California Code of Regulations, sections 1209 through 1213. Copies of the rules can be obtained from the Commission's Publications Unit by calling (916) 654-5200 or from the Commission's website at http:// www.energy.ca.gov/reports/title20/index.html.

What kinds of evidence will be admitted (or excluded)?

Any relevant noncumulative evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. (See Section 1212.)

Evidence is "relevant" if it tends to make any disputed fact that is important to the outcome of the hearing more or less likely to be true.

"Cumulative evidence" is evidence that is not needed even though it may be relevant because other relevant evidence on the same issue has already been presented.

What about hearsay evidence?

If the witness will testify about an oral or written statement made outside the hearing, this statement may be hearsay.

A statement is hearsay if the statement was made outside the hearing by someone other than a witness testifying at the hearing, and is offered to prove the truth of the matter stated.

In general, you can only introduce hearsay evidence if it adds to or explains other evidence, unless it would be admissible over objections in a civil action. (For information on when hearsay evidence is admissible in a civil action, please see California Rules of Evidence, Sections 1200-1380)

What kinds of evidence can I introduce?

In general, you may introduce exhibits (such as charts, graphs, maps or other documents), call and examine witnesses, and cross-examine opposing witnesses.

How do I introduce a witness's testimony?

You may call a witness to testify on any matter as long as the witness has personal knowledge of the matter. The witness must testify under oath, and must be capable of understanding the duty to tell the truth. The witness must be able to communicate in a way that can be understood (either directly or through an interpreter).

If the witness will testify about his or her opinion, and the witness does not qualify as an expert, the opinion must be reasonably based on the witness's perception, and must be helpful to a clear understanding of the witness's testimony.

What steps do I take when I call a witness to testify?

  • Call the witness to the stand. For example, if you want Mr. Smith to testify you would say, "I would like to call Mr. Smith to the stand".
  • The witness will be sworn in.
  • Begin questioning the witness by asking the witness to state his or her name for the record.
  • Next you will ask questions to establish the witness has personal knowledge of the subject of the witness's testimony. For example, if the witness will testify about a specific event, you should ask the witness, "Were you present at the event?" (shows the opportunity to form personal knowledge) and, "Did you see what happened?" (shows personal knowledge).
  • If the witness will testify about his or her opinion on something, you should ask questions to show the witness has personal knowledge of the facts that he or she used to form the opinion. For example, if a witness will testify about his or her opinion of a person, you should ask the witness, "Do you know this person?" (shows the opportunity to form personal knowledge), "How long have you known this person?", and "How well do you know this person?" (shows the personal knowledge that is needed to form an opinion).
  • Once you have established personal knowledge on a matter, you may ask the witness any other questions on that matter.
  • When you are done questioning a witness you should state, "I have no further questions for this witness." The other party(s) will then have a chance to question (cross-examine) your witness. You may then call your next witness.

When is a witness an expert?

A witness is an expert if he or she has enough special knowledge, skill, experience, training, or education to qualify as an expert on the subject of his or her testimony. You can use any admissible evidence to show the witness meets these requirements, including the witness's own testimony that he or she meets the requirements.

An expert witness may testify about his or her opinion on issues that are beyond the common knowledge so that the opinion would be helpful to the committee.

The expert's opinion must be based on information the expert knows personally, and it must be reasonable for an expert to base such an opinion on that information.

What steps do I take when I qualify an expert witness?

  • Call the witness to the stand. For example, if you want Mr. Smith to testify you would say, "I would like to call Mr. Smith to the stand".
  • The witness will be sworn in.
  • Begin questioning the witness by asking the witness to state his or her name for the record.
  • Next you will ask questions to qualify the witness as an expert in the fields necessary. For example, you will have to carefully and deliberately lay foundation by asking: a) present occupation; b) academic background; c) occupational history in detail; d) licenses or special honors or group associations; e) publications, if any; f) any teaching experience; and g) other special familiarity or experience with the subject matter.
  • Once the witness has been qualified as an expert, you may ask the witness to develop the factual background for the witness's testimony followed by asking the witness for his/her opinion. If the witness has prepared written testimony that was mailed to parties in advance of the hearing, you should ask the witness if he or she was responsible for the preparation of the testimony, if there are any corrections or changes to be made, and if the witness believes that the testimony is true and correct to the best of their knowledge.
  • When you are done questioning a witness you should state, "I have no further questions for this witness." The other party(s) will then have a chance to question (cross-examine) your witness. You may then call your next witness. Remember to move into evidence any written testimony and exhibits that any of your witnesses have sponsored.

What is "authentication"?

Authentication means that you are able to show that the writing is what you are claiming it is. In most cases this is easy to do.

Any written evidence (a "writing") you wish to introduce has to be authenticated. This includes, for example, newspaper and magazine articles, information from books, printouts of information from a computer, transcripts from other proceedings, and letters and emails. Pictures and sound recordings are also considered "writings."

If you would like to introduce a copy of a writing, you have to authenticate the original and the copy. In other words, you must show that the copy is actually a copy of the original and you must show that the original is what you are claiming it is.

If you are introducing a writing to show that the information in the writing is true, you may only introduce the writing to explain or add to other evidence. For example, you may introduce a writing to supplement a witness's testimony.

What is "official notice"?

During a proceeding, the commission may take "official notice" of any generally accepted matter within the commission's field of competence and of any fact which may be "judicially noticed" by the courts of this state. (See Title 20, California Code of Regulations, Section 1213) The effect is that such official or judicial notice alleviates the necessity of introducing evidence to prove certain matters. Judicial notice is not limited to those matters specified by statute (Evidence Code Sections 451, 452, matters which must or may be judicially noticed), but includes matters of common knowledge which are certain and indisputable, those matters authorized or required by other statutes, as well as decisional law.

How do I introduce a newspaper or magazine article?

When you introduce an original of an article from a regularly issued newspaper or a magazine, the hearing officer will presume that the article came from that newspaper or magazine. You do not have to do anything extra to authenticate the article. It is always best to bring in the original of the article if you have it.

If you do not have the original of the article and you would like to introduce a copy, you may be asked to authenticate the copy (to prove the document you would like to introduce is actually a copy of the original article). For example, you could have the person who copied the original article testify that this document is the copy of the original article by explaining the steps the person took to make the copy (such as placing the original on the copy machine, pressing start, etc.).

How do I introduce information from a web site?

In order to authenticate a document you have printed from a web site, you will have to show that this document is the same document that was posted on the web site, and that it was printed from that web site. For example, the person who printed the document off the web site could testify the steps he or she took to get to the web site (such as typing the web address in the address bar, hitting enter, etc.), that this document was on the web site, that he or she pushed the "print" button, and that the document printed. The hearing officer can then presume the printout accurately shows the existence and the content of the information on that web site.

How do I introduce a transcript of another proceeding?

You will most likely not need to authenticate an official, certified copy of the transcript of another proceeding. If you would like to introduce the transcript of another proceeding, it is always best to introduce an official, certified copy.

You will be required to authenticate an unofficial transcript or recording of another proceeding. In other words, you will have to show that the unofficial transcript or recording is actually a transcript or recording of the prior proceeding. For example, you could have the person who made the transcript or recording testify how it was made, and that it was made of the other proceeding. The hearing officer may still exclude this evidence if there is a real dispute concerning relevant parts of the transcript or recording.

A witness may not testify as to what happened at another proceeding.

How do I introduce a photograph?

To introduce a photograph, you will have to show that it is a photo of whatever you are claiming in order to authenticate the photograph. For example, if it is a photograph of a particular location, a witness who has been to that location could testify that the photograph is an accurate depiction of the location.

What steps do I take to introduce a document into evidence?

  • The first time you want to use a document during the hearing, you should briefly describe it (without using the substance of the document) and request that it be marked for identification. For example, if you would like to introduce a newspaper article you could say, "I ask that this document be marked for identification as Exhibit A. It is an article from the December 2, 2003, edition of The Sacramento Bee."
  • Then you will have to show the document is relevant and authenticate the document. For example, if you are introducing the document while you are questioning a witness, you would ask the witness questions that show the document is relevant and to authenticate the document.
  • Once you have established the document is relevant and you have authenticated the document, you should immediately offer the exhibit into evidence. For example, if you would like to introduce a newspaper article into evidence you could say, "I offer Exhibit A, an article from the December 2, 2003, edition of The Sacramento Bee, into evidence."

The document is not part of the evidentiary record of the hearing until the hearing officer accepts your offer to receive the document into evidence.

NOTICE: Distributed by the Public Adviser's Office. This is for informational purposes only. It is designed to assist you in understanding the process. It is, therefore, general in nature and does not discuss all exceptions and variations.