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Admissability of Evidence

The rules of evidence are not strictly applied in administrative hearings. In re Kemp, CSB 19-13, 4-5 (7/28/14). 

Inmate witness statements were properly admitted as evidence regarding the decision-maker's state of mind in determining that deputy violated departmental rules on use of force. In re Kemp, CSB 19-13, 4-5 (7/28/14), citing Zamora v. Board of Education for Las Cruces Public Schools, 553 Fed. Appx. 786, 790 (10th Cir. 2004).

Admission of evidence of misconduct not contained in disciplinary letters did not violate due process where hearing officer did not consider that evidence in determining the issues on appeal. In re Redacted, CSB 67-11, 2-3 (4/4/13).

Documents provided by appellant during settlement negotiations, may not be used by agency for impeachment at hearing. In re Murphy, CSA 09-11, 1-2 (Order 10/7/11).

Under CRE 408, an agency is precluded from introducing as evidence in appeal the documents appellant produced during settlement negotiations. In re Murphy, CSA 09-11, 1-2 (Order 10/7/11).

Hearsay may be admitted for purposes other than to prove the truth of the statement. In re Carter, CSB 87-09 (7/1/10).

The Administrative Procedure Act permits state administrative hearing officers to receive hearsay evidence ordinarily not admissible under the rules of evidence. In re Carter, CSB 87-09, 2 (7/1/10), citing Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 18 (Colo. 1989); CSR 19-50 A. 

In disciplinary actions, the decision maker is rarely the person who investigates misconduct and must rely on information provided from others. Her testimony about that information is permissible. In re Carter, CSB 87-09, 2 (7/1/10).

Strict compliance with the Colorado rules of evidence is not required in career service hearings. In re Norman-Curry, CSB 28-07 & 50-08, 3 (9/3/09); CSR 19-50.

Appellant's claim that hearing officer relied on evidence to which there was a sustained objection is without merit where that evidence had been admitted prior to the objection. In re Norman-Curry, CSB 28-07 & 50-08, 3 (9/3/09).

Physician-patient privilege protects that information acquired in attending to a patient which is necessary to treat the patient. In re Cullen, CSA 127-08, 2 (1/7/09), citing CRS 13-90-107(d).

Physician-patient privilege may be impliedly waived when a party raises an affirmative defense for which his physical condition is the basis. In re Cullen, CSA 127-08, 2 (1/7/09).

Waiver of physician-patient privilege does not constitute a general disclosure of the patient's entire medical history, but is limited to the cause and extent of injuries and damages claimed. In re Cullen, CSA 127-08, 2 (1/7/09), citing Cardenas v. Jerath, 180 P.3d 415, 424 (Colo. 2008).

Appellant’s challenge to legality of background check questions is not properly before hearing officer on appeal when appellant answered those questions without objection, and did not assert a discrimination claim in the appeal. In re Mitchell, CSA 05-05, 8 (6/27/05).

 
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