NJAC 1:1-14.6 Judge’s powers in presiding over prehearing activities, conducting hearings, developing records and rendering initial decisions

NJAC 1:1-14.6 Judge’s powers in presiding over prehearing activities, conducting hearings, developing records and rendering initial decisions

		(a) The judge may schedule any form of hearing or proceeding and establish appropriate location areas and instruct the Clerk to issue all appropriate notices.

		(b) When required in individual cases, the judge may supersede any notice issued by the Clerk by informing the parties and the Clerk of this action.

		(c) Depending on the needs of the case, the judge may schedule additional hearing dates, declare scheduled hearing dates unnecessary, or schedule any number of in-person conferences or telephone conferences.

		(d) When required in individual cases, the judge at any time of the proceeding may convert any form of proceeding into another, whether more or less formal or whether in-person or by telephone.

		(e) The judge may bifurcate hearings whenever there are multiple parties, issues or claims, and the nature of the case is such that a hearing of all issues in one proceeding may be complex and confusing, or whenever a substantial saving of time would result from conducting separate hearings or whenever bifurcation might eliminate the need for further hearings.

		(f) The judge may establish special accelerated or decelerated schedules to meet the special needs of the parties or the particular case.

		(g) The judge may administer any oaths or affirmations required or may direct a certified court reporter to perform this function.

		(h) The judge may render any ruling or order necessary to decide any matter presented to him or her which is within the jurisdiction of the transmitting agency or the agency conducting the hearing.

		(i) The judge shall control the presentation of the evidence and the development of the record and shall determine admissibility of all evidence produced. The judge may permit narrative testimony whenever appropriate.

		(j) The judge may utilize his or her sanction powers to ensure the proper conduct of the parties and their representatives appearing in the matter.

		(k) The judge may limit the presentation of oral or documentary evidence, the submission of rebuttal evidence and the conduct of cross-examination.

		(l) The judge may determine that the party with the burden of proof shall not begin the presentation of evidence and may require another party to proceed first.

		(m) The judge may make such rulings as are necessary to prevent argumentative, repetitive or irrelevant questioning and to expedite the cross-examination to an extent consistent with disclosure of all relevant testimony and information.

		(n) The judge may compel production of relevant materials, files, records and documents and may issue subpoenas to compel the appearance of any witness when he or she believes that the witness or produced materials may assist in a full and true disclosure of the facts.

		(o) The judge may require any party at any time to clarify confusion or gaps in the proofs. The judge may question any witness to further develop the record.

		(p) The judge may take such other actions as are necessary for the proper, expeditious and fair conduct of the hearing or other proceeding, development of the record and rendering of a decision.

		Administrative Procedures

		CASE NOTES:

		Where a confidential informant‘s statements served as evidence in a disciplinary action against a correction officer for engaging in an inappropriate relationship with an inmate, but the informant was not called as a witness during the hearing, the matter was remanded to allow the appointing authority to call the confidential informant as a witness; if the appointing authority did not call the confidential informant, the ALJ was authorized to act in its stead to take the testimony. In re Smith, OAL Dkt. No. CSV 4528-07, 2008 N.J. AGEN LEXIS 136, Remand Decision (January 30, 2008).

		Record needed to be developed to facilitate review of ALJ‘s determination that a senior correction officer was improperly dismissed after he tested positive for marijuana because the expert‘s testimony was not transcribed and the parties offered conflicting interpretations of what the testimony was; the ALJ was authorized to take the expert‘s testimony to clarify the urine testing process, including appropriate cut-off levels, and the margin of error associated with such testing (remanding 2007 N.J. AGEN LEXIS 140). In re Fuller, OAL Dkt. No. CSV 439-06, 2007 N.J. AGEN LEXIS 1124, Remand Decision (November 8, 2007).

		ALJ properly limited the evidence to whether a police officer was successfully re-trained, as required by a settlement agreement between the officer and the appointing authority arising out of a prior disciplinary matter; the allegations giving rise to the prior disciplinary proceeding did not need to be considered in determining whether the officer had fulfilled his obligations under the agreement (adopting 2007 N.J. AGEN LEXIS 242). In re MacDonald, OAL Dkt. No. CSV 474-05, 2007 N.J. AGEN LEXIS 1133, Merit System Board Decision (August 29, 2007).

NJAC 1:1-15.9 Expert and other opinion testimony

NJAC

1:1-15.9 Expert and other opinion testimony

		(a) If a witness is not testifying as an expert, testimony of that witness in the form of opinions or inferences is limited to such opinions or inferences as the judge finds:

		1. May be rationally based on the perception of the witness; and

		2. Are helpful to a clear understanding of the witness’ testimony or to the fact in issue.

		(b) If a witness is testifying as an expert, testimony of that witness in the form of opinions or inferences is admissible if such testimony will assist the judge to understand the evidence or determine a fact in issue and the judge finds the opinions or inferences are:

		1. Based on facts and data perceived by or made known to the witness at or before the hearing; and

		2. Within the scope of the special knowledge, skill, experience or training possessed by the witness.

		(c) Testimony in the form of opinion or inferences which is otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the judge.

		(d) A witness may be required, before testifying in terms of opinions or inference, to be first examined concerning the data upon which the opinion or inference is based.

		(e) Questions calling for the opinion of an expert witness need not be hypothetical in form unless, in the discretion of the judge, such form is required.

		(f) If facts and data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, those facts and data upon which an expert witness bases opinion testimony need not be admissible in evidence.

		Administrative Procedures

		CASE NOTES

		Adopting and modifying on other grounds Initial Decision (2005 N.J. AGEN LEXIS 1070), which found the testimony of the manufacturer‘s witness to be lacking in foundation and not credible where the witness testified that the after-market installation of a snowplow on the consumer‘s truck could have been the cause of the vehicle‘s intermittent shutting down without warning; although the administrative rules give an ALJ latitude in admitting evidence, an expert‘s opinion must still be based on factual evidence. Marago v. Daimler Chrysler Motors Co., OAL Dkt. No. CMA 8775-05, 2005 N.J. AGEN LEXIS 1070, Final Decision (December 22, 2005)

NJAC 1:1-15.8 Witnesses; requirements for testifying; testifying by telephone

NJAC 1:1-15.8 Witnesses; requirements for testifying; testifying by telephone

		(a) Except as otherwise provided by this subchapter, by statute or by rule establishing a privilege:

		1. Every person is qualified to be a witness; and

		2. No person has a privilege to refuse to be a witness; and

		3. No person is disqualified to testify to any matter; and

		4. No person has a privilege to refuse to disclose any matter or to produce any object or writing; and

		5. No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing but the judge presiding at the hearing in a contested case may not testify as a witness.

		(b) A person is disqualified to be a witness if the judge finds the proposed witness is incapable of expression concerning the matter so as to be understood by the judge directly or through interpretation by one who can understand the witness, or the proposed witness is manifestly incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of these rules relating to witnesses.

		(c) As a prerequisite for the testimony of a witness there must be evidence that the witness has personal knowledge of the matter, or has special experience, training or education, if such is required. Such evidence may be provided by the testimony of the witness. In exceptional circumstances, the judge may receive the testimony of a witness conditionally, subject to evidence of knowledge, experience, training or education being later supplied in the course of the proceedings. Personal knowledge may be obtained through hearsay.

		(d) A witness may not testify without taking an oath or affirming to tell the truth under the penalty provided by law. No witness may be barred from testifying because of religion or lack of it.

		(e) Testimony of a witness may be presented by telephone if, before the hearing begins, the judge finds there is good cause for permitting the witness to testify by telephone. In determining whether good cause exists, the judge shall consider:

		1. Whether all parties consent to the taking of testimony by telephone;

		2. Whether credibility is an issue;

		3. The significance of the witness’ testimony;

		4. The reason for the request to take testimony by telephone; and

		5. Any other relevant factor.

		(f) Testimony of a witness may be given in narrative fashion rather than by question and answer format if the judge permits.

NJAC 1:1-15.8 Witnesses; requirements for testifying; testifying by telephone

NJAC 1:1-15.8 Witnesses; requirements for testifying; testifying by telephone

		(a) Except as otherwise provided by this subchapter, by statute or by rule establishing a privilege:

		1. Every person is qualified to be a witness; and

		2. No person has a privilege to refuse to be a witness; and

		3. No person is disqualified to testify to any matter; and

		4. No person has a privilege to refuse to disclose any matter or to produce any object or writing; and

		5. No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing but the judge presiding at the hearing in a contested case may not testify as a witness.

		(b) A person is disqualified to be a witness if the judge finds the proposed witness is incapable of expression concerning the matter so as to be understood by the judge directly or through interpretation by one who can understand the witness, or the proposed witness is manifestly incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of these rules relating to witnesses.

		(c) As a prerequisite for the testimony of a witness there must be evidence that the witness has personal knowledge of the matter, or has special experience, training or education, if such is required. Such evidence may be provided by the testimony of the witness. In exceptional circumstances, the judge may receive the testimony of a witness conditionally, subject to evidence of knowledge, experience, training or education being later supplied in the course of the proceedings. Personal knowledge may be obtained through hearsay.

		(d) A witness may not testify without taking an oath or affirming to tell the truth under the penalty provided by law. No witness may be barred from testifying because of religion or lack of it.

		(e) Testimony of a witness may be presented by telephone if, before the hearing begins, the judge finds there is good cause for permitting the witness to testify by telephone. In determining whether good cause exists, the judge shall consider:

		1. Whether all parties consent to the taking of testimony by telephone;

		2. Whether credibility is an issue;

		3. The significance of the witness’ testimony;

		4. The reason for the request to take testimony by telephone; and

		5. Any other relevant factor.

		(f) Testimony of a witness may be given in narrative fashion rather than by question and answer format if the judge permits.

NJAC 1:1-15.7 Exhibits

NJAC 1:1-15.7 Exhibits

		(a) The verbatim record of the proceedings shall include references to all exhibits and, as to each, the offering party, a brief description of the exhibit stated by the offering party or the judge, and the marking directed by the judge. The verbatim record shall also include a record of the exhibits retained by the judge at the end of the proceedings and of the disposition then made of the other exhibits.

		(b) Parties shall provide each party to the case with a copy of any exhibit offered into evidence. Large exhibits that cannot be placed within the judge‘s file may be either photographed, attached to the file, or described in the record and committed to the safekeeping of a party. All other admitted exhibits shall be retained in the judge‘s file until certified to the agency head pursuant to N.J.A.C. 1:1-18.1.

		(c) The standard marking for exhibits shall be:

		1. P = petitioner;

		2. R = respondent;

		3. A = appellant;

		4. J = joint;

		5. C = judge;

		6. I = intervenor; or

		7. Such other additional markings required for clarity as the judge may direct.

		Chapter Notes

NJAC 1:1-15.6 Authentication and content of writings

NJAC 1:1-15.6 Authentication and content of writings

		Any writing offered into evidence which has been disclosed to each other party at least 10 days prior to the hearing shall be presumed authentic. At the hearing any party may raise questions of authenticity. Where a genuine question of authenticity is raised the judge may require some authentication of the questioned document. For these purposes the judge may accept a submission of proof, in the form of an affidavit, certified document or other similar proof, no later than 10 days after the date of the hearing.

NJAC 1:1-15.6 Authentication and content of writings

NJAC 1:1-15.6 Authentication and content of writings

		Any writing offered into evidence which has been disclosed to each other party at least 10 days prior to the hearing shall be presumed authentic. At the hearing any party may raise questions of authenticity. Where a genuine question of authenticity is raised the judge may require some authentication of the questioned document. For these purposes the judge may accept a submission of proof, in the form of an affidavit, certified document or other similar proof, no later than 10 days after the date of the hearing.