28.02.01.21

.21 Evidence; Burden of Proof.

A. Evidence shall be admitted in accordance with State Government Article, §10-213, Annotated Code of Maryland, and other pertinent law.

B. The ALJ may admit evidence that reasonable and prudent individuals commonly accept in the conduct of their affairs, and give probative effect to that evidence.

C. Evidence may not be excluded solely on the basis that it is hearsay.

D. Expert Testimony. Expert testimony may be admitted, in the form of an opinion or otherwise, if the ALJ determines that the testimony will assist the ALJ to understand the evidence or to determine a fact in issue.

(1) In making that determination, the ALJ shall determine whether:

(a) The individualís knowledge, skill, experience, training, or education is sufficient to qualify them as an expert;

(b) Expert testimony on the particular subject is appropriate; and

(c) There is a sufficient factual basis to support the testimony.

(2) In the discretion of the ALJ:

(a) Expert testimony may be offered through the video deposition of an expert witness taken with the consent of all parties; and

(b) The deposition may be used for any purpose even though the witness is available to testify.

E. Exclusion of Witnesses.

(1) On request by a party, or on an ALJís own initiative, an ALJ may exclude witnesses other than parties from the hearing room, except when testifying.

(2) A party, representative, witness, or spectator may not disclose to a witness excluded under this section the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during that witness's absence.

(3) A party that is not an individual may designate an employee or officer as its representative to remain in the hearing room, even though the employee or officer may be a witness.

(4) An expert witness who is to render an opinion based on testimony given at the hearing may remain during the testimony.

(5) An ALJ may exclude the testimony of a witness who receives information in violation of §E of this regulation, or take other appropriate action.

F. Prefiled Direct Testimony

(1) At the request of a party or on the ALJís initiative, direct testimony may be received in writing in either question and answer or narrative format.

(2) The testimony shall be under oath or affirmation and be filed and served on all other parties as ordered by the ALJ or, in the absence of an order, not later than 10 days before the hearings.

(3) Any party who submits prefiled testimony shall ensure that the witness is available, either remotely or in-person, for cross-examination at the hearing.

(4) The filing of prefiled direct testimony does not preclude any party from presenting rebuttal testimony.

G. Official Notice.

(1) At the request of a party or on the ALJís own motion, an ALJ may take official notice of a fact that is:

(a) Judicially noticeable; or

(b) General, technical, or scientific and within the specialized knowledge of the agency.

(2) Before taking official notice of a fact, the ALJ shall:

(a) Notify each party before or during the hearing; and

(b) Give each party an opportunity to contest the fact.

H. Stipulations.

(1) The parties may, in accordance with law, agree to any substantive or procedural matter.

(2) A stipulation may be filed in writing or entered on the record at the hearing.

(3) The ALJ may require additional development of stipulated matters.

I. Affidavits. An ALJ may admit an affidavit as evidence.

J. Dangerous or Toxic Evidence. No dangerous or toxic item, as defined in COMAR 28.01.02.01, may be offered into evidence at a hearing unless:

(1) At least 10 days prior to the hearing, the party seeking to offer it files a motion for leave to offer the evidence; and

(2) The motion is granted in advance of the hearing.

K. Proof. Unless otherwise provided by law:

(1) The standard of proof is by a preponderance of the evidence;

(2) A party asserting:

(a) A claim, right, or entitlement bears the burden of proof regarding the claim, right, or entitlement; and

(b) An affirmative defense bears the burden of proof regarding the defense; and

(3) The proponent of a motion bears the burden of proof regarding the motion.