(a) Admissibility.
(1) Except as is otherwise set forth in
this section, relevant, material, and reliable evidence that is not
unduly repetitive is admissible to the fullest extent authorized by
the Administrative Procedure Act and other applicable law.
(2) Evidence that would be
admissible under the Federal Rules of Evidence is admissible in a
proceeding conducted pursuant to this subpart.
(3) Evidence that would be inadmissible
under the Federal Rules of Evidence may not be deemed or ruled to
be inadmissible in a proceeding conducted pursuant to this subpart
if such evidence is relevant, material, reliable, and not unduly repetitive.
8-079.1
(b) Official notice.
(1) Official notice may be
taken of any material fact which may be judicially noticed by a United
States district court and any material information in the official
public records of any federal or state government agency.
(2) All matters officially
noticed by the ALJ or the Board must appear on the record.
(3) If official notice is
requested or taken of any material fact, the parties, upon timely
request, must be afforded an opportunity to object.
8-079.2
(c) Documents.
(1) A duplicate copy of a document is admissible
to the same extent as the original, unless a genuine issue is raised
as to whether the copy is in some material respect not a true and
legible copy of the original.
(2) Subject to the requirements of paragraph
(a) of this section, any document, including a report of examination,
supervisory activity, inspection, or visitation, prepared by an appropriate
federal financial institutions regulatory agency or by a state regulatory
agency, is admissible either with or without a sponsoring witness.
(3) Witnesses may use
existing or newly created charts, exhibits, calendars, calculations,
outlines, or other graphic material to summarize, illustrate, or simplify
the presentation of testimony. Such materials may, subject to the
ALJ’s discretion, be used with or without being admitted into
evidence.
8-079.3
(d) Objections.
(1) Objections to the admissibility
of evidence must be timely made and rulings on all objections must
appear on the record.
(2) When an objection to a question or line of questioning propounded
to a witness is sustained, the examining counsel may make a specific
proffer on the record of what the examining counsel expected to prove
by the expected testimony of the witness either by representation
of counsel or by direct questioning of the witness.
(3) The ALJ will retain rejected exhibits,
adequately marked for identification, for the record, and transmit
such exhibits to the Board.
(4) Failure to object to admission of evidence
or to any ruling constitutes a waiver of the objection.
8-079.4
(e) Stipulations. The
parties may stipulate as to any relevant matters of fact or the authentication
of any relevant documents. Such stipulations must be received in evidence
at a hearing and are binding on the parties with respect to the matters
therein stipulated.
8-079.5
(f) Depositions
of unavailable witnesses.
(1) If a witness is unavailable to testify
at a hearing, and that witness has testified in a deposition to which
all parties in a proceeding had notice and an opportunity to participate,
a party may offer as evidence all or any part of the transcript of
the deposition, including deposition exhibits, if any.
(2) Such deposition transcript
is admissible to the same extent that testimony would have been admissible
had that person testified at the hearing, provided that if a witness
refused to answer proper questions during the depositions, the ALJ
may, on that basis, limit the admissibility of the deposition in any
manner that justice requires.
(3) Only those portions of a deposition
received in evidence at the hearing constitute a part of the record.
