State v. Newcomb, Jr.
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Electronically Filed Intermediate Court of Appeals CAAP-20-0000446 05-NOV-2021 07:49 AM Dkt. 71 SO NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER trained that a Preliminary Alcohol Screening (PAS) can be offered even if an individual refuses a Standardized Field Sobriety Test (SFST). Additionally, HPD officers are trained on optional tests including the "Alphabet Test,'' ''Countdown Test," "Finger Count Test," and divided attention tests such as asking unusual questions to detect impairment. The Circuit Court ruled that Officer Saul could not testify as an expert witness because ''any testimony from Officer Saul is irrelevant and also excluded under [HRE Rule] 403." On appeal, Newcomb argues that Officer Saul's expert testimony should have been admitted because pursuant to HRE Rule 702 (1992), Officer Saul was qualified to testify as an expert, his testimony was relevant to the veracity of the officers' OVUII investigation, and the Circuit Court abused its discretion in precluding the testimony under HRE Rule 403 (1980). HRE Rule 702 sets forth the requirements for qualification of an expert witness: Rule 702 Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an In determining the issue of opinion or otherwise. assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert. In State v. Metcalfe, the Hawai'i Supreme Court identified three foundational requirements to qualify a witness to testify as an expert under HRE Rule 702: (1) the witness must be qualified by knowledge, skill, experience, training or education; (2) the testimony must have the capacity to assist the trier of fact to understand the evidence or to determine a fact in issue; and (3) the expert's analysis must meet a threshold level of reliability and trustworthiness. 129 Hawai'i 206, 227, 297 P. 3d 1062, 1083 (2013) (citation omitted) . On appeal, Plaintiff-Appellee State of Hawai'i (State) does not dispute that Officer Saul was qualified to testify as an expert. Therefore, the only issues are whether Officer Saul's 3
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