Section 442-5-020 - Evidence020.01Evidentiary Standard. The evidentiary standard varies with the type of hearing being held. 020.01AInformal Hearing. During an informal hearing the Commission may: 002.01A1 Admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs excluding incompetent, irrelevant, immaterial and unduly repetitious evidence and shall give effect to the privileges rules of evidence in Neb. Rev. Stat. § 27-501 to 27-513 but shall not otherwise be bound by the usual common law or statutory rules of evidence. Neb. Rev. Stat. § 775016(1).002.01A2 Exclude hearsay evidence. Neb. Rev. Stat § 775016(4) 020.01BFormal Hearing. During a formal hearing the rules of evidence applicable in the district courts will apply.020.01CSingle Commissioner Hearing.020.01C1 A proceeding held before a single commissioner shall be informal. The usual common law or statutory rules of evidence, including rules of hearsay, shall not apply, and the commission may consider and utilize all matters presented at the proceeding in making his or her determination.020.01C2 Documents necessary to establish jurisdiction of the commission shall constitute the record of a proceeding before a single commissioner. No recording shall be made of a proceeding before a single commissioner.020.01C3 Persons providing information at single commissioner hearings shall not be required to make an oath or affirmation, and shall not be deemed witnesses as that term is used elsewhere in this chapter.020.02Statutory Materials. The Commission may consider and utilize the provisions of the Constitution of the United States, the Constitution of Nebraska, the laws of the United States, the laws of Nebraska, the Code of Federal Regulations, the Nebraska Administrative Code, any decision of the several courts of the United States or the state of Nebraska, and the legislative history of any law, rule, or regulation, without making the document a part of the record. The Commission may without inclusion in the record consider and utilize published treatises, periodicals, and reference works pertaining to the valuation or assessment of real or personal property or the meanings of words and phrases as set forth in this chapter. Neb. Rev. Stat. § 77-5016(3).020.03Statutory Notice. The Commission may take notice of judicially cognizable facts and in addition may take notice of general, technical, or scientific facts within its specialized knowledge or statistical information regarding general levels of assessment within a county or a class or subclass of real property within a county and measures of central tendency within such county or classes or subclasses within such county which have been made known to the Commission. Neb. Rev. Stat. § 77-5016(6).020.03A Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material so noticed. The parties shall thereafter be afforded an opportunity to contest the facts so noticed. Neb. Rev. Stat. § 77-5016(6).020.04Evaluation of Evidence. The commission may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it. Neb. Rev. Stat. § 77-5016(6).020.05Testimonial Evidence.020.05ATestimony: How Taken and Procured. Testimony of witnesses may be taken in four modes: (4) video of an examination conducted prior to the time of hearing for use at the hearing in accordance with procedures provided by the laws of the State of Nebraska. Evidence by affidavit shall be limited to proof of service of a notice or other process, publication of a required notice, in support of motions for a stay, continuance or dismissal, procedural motions or motions provided for in Chapter 12 of these rules.020.05BWitnesses to be Sworn. All witnesses giving testimony at any proceeding shall make an oath or affirmation to tell the truth under penalties of perjury.020.05COpportunity to Cross Examine. Every party has the right to cross examine witnesses who testify, except at single commissioner hearings.020.06Documentary Evidence.020.06A Documentary evidence may be received in the form of copies, excerpts, or by incorporation by reference. Copies must be legible and true and accurate representations of the original.020.06BMaterials in Books, Papers or Documents. Relevant portions of books, papers, or documents shall be plainly designated and distinguished from all irrelevant portions before the relevant materials may be offered into evidence. Where irrelevant material in a book, paper, or document is voluminous so as to encumber the record, the book, paper or document must be marked for identification and relevant material read into the record or the relevant material indexed and designated for consideration. Upon the discretion of the presiding hearing officer, a true copy of the relevant matter may be received as an exhibit, provided copies are delivered to all parties to a matter and all parties are afforded an opportunity to examine the book, paper, or document, and to offer into evidence in like manner other portions thereof, if found to be material and relevant. 020.07Non-Documentary Evidence.020.07APhotographs. Photographs may be provided to the Commission and other parties if the subject of the photograph is clearly set forth and the subject is available for inspection and photographing by the other parties to the proceeding.020.07BVideo Exhibits and Depositions. Video exhibits and video depositions may be submitted on a write protected DVD or CD, a USB flash drive, or another medium with authorization of the Commission. The proponent shall provide at their expense the appropriate equipment for playback. DVDs or CDs shall be created in a manner which will allow playback on standard DVD-Video or CD players and the format used to create the video, e.g. mpeg, .avi, .mov, etc., must be stated on the DVD, CD, USB drive, other medium, or on the packaging or accompanying documents.020.07CAudio Exhibits and Depositions. Audio exhibits and depositions may be submitted on a write protected Audio CD, CD-R, USB flash drive, or other medium with the authorization of the Commission, in either .mp3 or .wav format. If an audio recording is presented the proponent of the exhibit or deposition shall provide at their expense the appropriate equipment for playback.020.08Rebuttal Evidence. Every party has the right to submit rebuttal evidence. Neb. Rev. Stat. § 77-5016(5). 020.08ARebuttal Evidence Defined. Rebuttal evidence consists of written or documentary evidence that tends to explain, contradict or disprove evidence offered by an opposing party.020.09Required Evidence.020.09ACounty. In any appeal from a county board of equalization concerning real property, the county shall deliver three complete and legible copies of the Property Record File for the property described in the appeal to the Commission and one copy to each party. If the appeal concerns valuation of real property, the Property Record File shall include the Property Record Card, worksheets, all supporting documents which establish the value of the property described in the appeal for the tax year at issue, and the property valuation protest form (Form 422) or similar document and materials maintained by the county pursuant to Neb. Rev. Stat. § 77-1502(5). If the appeal concerns exemption of real property from taxation, copies of the form 451, or 451A, shall be provided to the Commission and the opposing party or parties. 020.09BComparable Properties. Any party utilizing comparable properties as evidence of value or for purposes of demonstrating equalization or a lack of equalization shall provide complete and legible copies of the County Assessor's Property Record File for those comparable properties for the tax year at issue.020.10Disclosure of Evidence.020.10ADocumentary and Photographic Evidence. Each party shall deliver to each opposing party one complete and legible copy of all documentary and photographic exhibits that the party intends to offer at the hearing. The original and two complete and legible copies of a documentary or photographic exhibit delivered to an opposing party shall be delivered to the Commission.020.10BOther Tangible Evidence. Each party shall notify any opposing party of their intention of offering a physical exhibit that is not a document or photograph and make the item available for inspection not less 21 days prior to a hearing on the merits.020.10CExpert Witnesses. Each party shall deliver to the Commission an original and to each opposing party one legible copy of a written list of every expert, if any, they might call as a witness, a copy of any documents or other information that the expert might refer, and a statement of the substance of each expert witness's testimony.020.10DFailure to Disclose. Exhibits which have not been delivered as required by this rule within the time provided for in an Order for Hearing will not be received at the hearing in the absence of good cause shown or by agreement of the parties. Testimony of an expert witness whose identity, reference documents, and the substance of their expected testimony has not been disclosed in accordance with this rule within the time prescribed in an Order for Hearing will not be received at the hearing in the absence of good cause shown or by agreement of the parties.020.11Exhibit Page Numbering.020.11AExhibit Numbers. The Commission will attach an exhibit sticker to each exhibit. The exhibit sticker will show a docket number and page number identifying the case, an exhibit number, the number of pages in the exhibit, and the date of hearing. 020.11BExhibit Page Numbers. Each page of a document delivered to the Commission will be numbered by the Commission unless the exhibit is a fee appraisal prepared for a hearing and the appraisal has been numbered as provided in the following section or the exhibit is delivered by a county board of equalization. Page numbers will be assigned by the Commission in sequential Arabic numerals commencing with the number one (1). A cover page may be excluded unless signed or if it contains an opinion, information supporting an opinion, or an explanation of an opinion. Blank pages or tab pages that do not contain an opinion, information supporting an opinion, or an explanation of an opinion may be excluded.020.11CPage Numbering of Fee Appraisals. Each fee appraisal performed in preparation for a hearing before the Commission shall bear sequential Arabic numerals commencing with the number one (1). A cover page may be excluded unless signed or if it contains an opinion, information supporting an opinion, or an explanation of an opinion. Blank pages or tab pages that do not contain an opinion, information supporting an opinion, or an explanation of an opinion may be excluded.020.12Custody of Exhibits. The Commission shall keep all original exhibits in its care and custody, unless required for purposes of appeal to a court of appropriate jurisdiction as herein provided. Original exhibits may be returned to the party who offered the exhibit upon request, so long as the time for final appeal of the decision has expired, the final decision has been certified by the Commission, and the Commission is not required to retain the exhibit by the Tax Equalization and Review Commission Record Retention Schedule as filed with the Secretary of State.020.13Objections to Evidence. The Commission may exclude evidence based on objection from an opposing party or based on its own determination. 020.13AEvidentiary Rulings. The presiding hearing officer shall rule on the admissibility of testimony and exhibits.020.13BOffer of Proof. After the Commission has sustained an objection or otherwise excluded evidence, the aggrieved party may make an offer of proof. An offer of proof is a presentation of evidence showing the substance of the testimony or other evidence the aggrieved party would be able to produce if not precluded by the Commission's ruling excluding the evidence, consisting of three parts: (2) an explanation of the purpose for which it is offered (relevance), and (3) an argument supporting admissibility. An offer of proof may be made to preserve the evidence on the record for purposes of appeal.442 Neb. Admin. Code, ch. 5, § 020
Amended effective 6/7/2021