2015 Hawaii Revised Statutes
TITLE 33. EVIDENCE
626. Hawaii rules of evidence
HAWAII RULES OF EVIDENCE
- 100 Title and citation.
- 101 Scope.
- 102 Purpose and construction.
- 102.1 Effect of commentary.
- 103 Rulings on evidence.
- 104 Preliminary questions.
- 105 Limited admissibility.
- 106 Remainder of or related writings or recorded statements.
- 301 Definitions.
- 302 Presumptions in civil proceedings.
- 303 Presumptions imposing burden of producing evidence.
- 304 Presumptions imposing burden of proof.
- 305 Prima facie evidence.
- 306 Presumptions in criminal proceedings.
RELEVANCY AND ITS LIMITS
- 401 Definition of "relevant evidence".
- 402 Relevant evidence generally admissible; irrelevant evidence inadmissible.
- 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
- 404 Character evidence not admissible to prove conduct; exceptions; other crimes.
- 405 Methods of proving character.
- 406 Habit; routine practice.
- 407 Subsequent remedial measures.
- 408 Compromise, offers to compromise, and mediation proceedings.
- 409 Payment of medical and similar expenses.
Rule 409.5 Admissibility of expressions of sympathy and condolence. Evidence of statements or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule. L 2007, c 88, §1
- 409.5 COMMENTARY This rule, shielding expressions of "sympathy, commiseration, or condolence", resembles measures recently adopted in several sister states. See, e.g., CA Evid. Code §1160, excluding expressions of "sympathy or a general sense of benevolence". The rule favors expressions of sympathy as embodying desirable social interactions and contributing to civil settlements, and the evidentiary exclusion recognizes that the law should "facilitate or, at least, not hinder the possibility of this healing ritual". Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460, 474 (2003). The Hawaii legislature also stated: "Your committee finds it appropriate to allow individuals and entities to express sympathy and condolence without the expression being used ... to establish civil liability". Senate Standing Committee Report No. 1131, March 21, 2007. Whether a challenged utterance amounts to an expression of sympathy or an acknowledgment of fault will be entrusted to the sound discretion of the trial court under rule 104(a). In making this determination, the court could consider factors such as the declarant's language, the declarant's physical and emotional condition, and the context and circumstances in which the utterance was made. Case Notes Although trial court erred in concluding that the admissibility of petitioner's statement regarding having "made a big mistake" was governed by this rule, and also erred by excluding the preceding words "I'm so sorry", because those words explained the context of the "mistake" comment, the error was harmless beyond a reasonable doubt in light of petitioner's testimony explaining the statement, and the statement was relevant and admissible as a party admission under rule 803(a)(1). 126 H. 460, 272 P.3d 1227 (2012). This rule, which provides that evidence "expressing sympathy, commiseration, or condolences concerning the consequences of an event in which the declarant
- 410 Inadmissibility of pleas, plea discussions, and related statements.
- 411 Liability insurance.
- 412 Sexual offense and sexual harassment cases; relevance of victim's past behavior.
- 501 Privileges recognized only as provided.
- 502 Required reports privileged by statute.
- 503 Lawyer-client privilege.
- 504 Physician-patient privilege.
- 504.1 Psychologist-client privilege.
- 505 Spousal privilege.
- 505.5 Victim-counselor privilege.
- 506 Communications to clergy.
- 507 Political vote.
- 508 Trade secrets.
- 509 Privilege against self-incrimination.
- 510 Identity of informer.
- 511 Waiver of privilege by voluntary disclosure.
- 512 Privileged matter disclosed under compulsion or without opportunity to claim privilege.
- 513 Comment upon or inference from claim of privilege; instructions.
- 601 General rule of competency.
- 602 Lack of personal knowledge.
- 603 Oath or affirmation.
- 603.1 Disqualifications.
- 604 Interpreters.
- 605 Competency of judge as witness.
- 606 Competency of juror as witness.
- 607 Who may impeach.
- 608 Evidence of character and conduct of witness.
- 609 Impeachment by evidence of conviction of crime.
- 609.1 Evidence of bias, interest, or motive.
- 610 Religious beliefs or opinions.
- 611 Mode and order of interrogation and presentation.
- 612 Writing used to refresh memory.
- 613 Prior statements of witnesses.
- 614 Calling and interrogation of witness by court.
- 615 Exclusion of witnesses.
- 616 Televised testimony of child.
OPINIONS AND EXPERT TESTIMONY
- 701 Opinion testimony by lay witnesses.
- 702 Testimony by experts.
- 702.1 Cross-examination of experts.
- 703 Bases of opinion testimony by experts.
- 704 Opinion on ultimate issue.
- 705 Disclosure of facts or data underlying expert opinion.
- 706 Court-appointed experts.
- 801 Definitions.
- 802 Hearsay rule.
- 802.1 Hearsay exception; prior statements by witnesses.
- 803 Hearsay exceptions; availability of declarant immaterial.
- 804 Hearsay exceptions; declarant unavailable.
- 805 Hearsay within hearsay.
- 806 Attacking and supporting credibility of declarant.
AUTHENTICATION AND IDENTIFICATION
- 901 Requirement of authentication or identification.
- 902 Self-authentication.
- 903 Subscribing witness' testimony unnecessary.
CONTENTS OF WRITINGS,
RECORDINGS, AND PHOTOGRAPHS
- 1001 Definitions.
- 1002 Requirement of original.
- 1003 Admissibility of duplicates.
- 1004 Admissibility of other evidence of contents.
- 1005 Public records.
- 1006 Summaries.
- 1007 Testimony or written admission of party.
- 1008 Functions of court and jury.
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