§ 179.61. Hearing procedure.
(a) Order of hearing. In a proceeding, the party having the burden of proof shall generally go forward, open and close, unless otherwise directed by the presiding officer. The order of testimony may be modified at the discretion of the hearing officer. In determining this order, the presiding officer shall take into consideration the right of the respective party to present the case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct a cross-examination as may be required for a full and true disclosure of the facts.
(1) In proceedings when the evidence is peculiarly within the knowledge or control of another party, the order of presentation set forth in subsection (a) may be varied by the presiding officer.
(2) Intervenors shall follow the party on whose behalf the intervention is made. If the intervention is not in support of an original party, the presiding officer will designate at what stage the intervenor will be heard.
(3) The presiding officer may direct the order of parties for purposes of cross-examination. Subsection (a) supersedes 1 Pa. Code § 35.125 (relating to order of procedure).
(b) Burden of proof. Preponderance of the evidence shall be the standard and shall mean that the evidence demonstrates a fact is more likely to be true than not. Proponents of any issue shall have the burden of proof thereof.
(c) Evidence. Neither the Commission, nor the presiding officer will be bound by the technical rules of evidence and all relevant, material and competent evidence may be received in either oral or documentary form, provided, that the Commission or the presiding officer acting hereunder may exclude evidence if:
(1) It is repetitious or cumulative.
(2) Its probative value is outweighed by:
(i) The danger of unfair prejudice;
(ii) Confusion of the issues; or
(iii) Considerations of undue delay or waste of time.
(3) It is hearsay evidence.
(d) Hearsay evidence. Hearsay evidence properly objected to is not competent evidence to support a finding of the Commission. However, hearsay evidence admitted without objection will be given its natural probative effect and may support a finding by the Commission, if it is corroborated by other competent evidence in the record.
(e) Commission public documents or business records. Tape recordings of Judges’ or Stewards’ hearings, as well as of recordings of investigative interviews or similar proceedings may be received in evidence, if the recordings were made a part of the underlying Judges’ or Stewards’ evidentiary record and are relevant and material to the appeal. Investigative reports of Commission investigative or licensing staff, racetrack security personnel or of authorized agents of the Thoroughbred Racing Protective Bureau shall be received by the presiding officer and deemed to be a part of the official records of the Commission in a relevant proceeding, but the affected party shall have the right to examine the same insofar as they may pertain to matters directly and immediately in issue.
(f) Control of evidence. The Commission or the presiding officer shall have all necessary authority to control the receipt of evidence, including ruling on the admissibility of evidence, confining the evidence to the issues in the proceedings and impose, where appropriate, limitations to the number of witnesses to be heard, the time and scope of direct and cross-examinations and the production of further evidence.
(g) Motion and objections. Motions and objections made during a hearing shall be stated orally and shall be included in the stenographic record of the hearing.
(h) Cross-examination. Parties shall be entitled to cross-examine and to present rebuttal evidence as may be necessary for a full and fair hearing, but shall be limited to matters on direct and at the discretion of the Commission or presiding officer.
(i) Subsection (c) supersedes 1 Pa. Code § 35.161 (relating to form and admissibility of evidence); Subsection (e) supersedes 1 Pa. Code § § 35.165 and 35.166 (relating to public documents; and prepared expert testimony); Subsection (f) supersedes 1 Pa. Code § 35.162 (relating to reception and ruling on evidence).
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