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2023 Hawaii Revised Statutes
Title 33. Evidence
626. Hawaii Rules of Evidence
HAWAII RULES OF EVIDENCE
ARTICLE I.
GENERAL PROVISIONS
JUDICIAL NOTICE ARTICLE III.
PRESUMPTIONS
RELEVANCY AND ITS LIMITS
PRIVILEGES
WITNESSES
OPINIONS AND EXPERT TESTIMONY
HEARSAY
AUTHENTICATION AND IDENTIFICATION
CONTENTS OF WRITINGS,
RECORDINGS, AND PHOTOGRAPHS
MISCELLANEOUS RULES
ARTICLE I.
GENERAL PROVISIONS
- 100 Title and citation.
- 101 Scope.
- 102 Purpose and construction.
- 701-105 (1976), which limits the effect of the penal code commentary because, as the commentary to that section points out, "of the strong judicial deference given legislative committee reports and other evidence of legislative intent authored by the Legislature or its staff." See State v. Aiu, 59 H. 92, 98, 576 P.2d 1044, 1049 (1978); State v. Anderson, 58 H. 479, 483, 572 P.2d 159, 162 (1977); State v. Alo, 57 H. 418, 426-27, 558 P.2d 1012, 1017 (1976); State v. Nobriga, 56 H. 75, 77, 527 P.2d 1269, 1273 (1974).
- 103 Rulings on evidence.
- 104 Preliminary questions.
- 105 Limited admissibility.
- 106 Remainder of or related writings or recorded statements.
JUDICIAL NOTICE ARTICLE III.
PRESUMPTIONS
- 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.
- 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.
PRIVILEGES
- 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.
- 304A-120 to confidentially discuss sexual assault, domestic violence, dating violence, stalking, sexual harassment, and related issues with victims, has undergone a minimum of thirty-five hours of training, and whose primary function is the rendering of advice, counseling, or assistance to victims. (b) General rule of privilege. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to a victim counselor for the purpose of counseling or treatment of the victim for the emotional or psychological effects of sexual assault, domestic violence, dating violence, stalking, sexual harassment, or child abuse or neglect, and to refuse to provide evidence that would identify the name, location, or telephone number of a safe house, abuse shelter, or other facility that provided temporary emergency shelter to the victim. (c) Who may claim the privilege. The privilege may be claimed by the victim, the victim's guardian or conservator, or the personal representative of a deceased victim. The person who was the victim counselor at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the victim. (d) Exceptions. There is no privilege under this rule: (1) Perjured testimony by victim. If the victim counselor reasonably believes that the victim has given perjured testimony and a party to the proceeding has made an offer of proof that perjury may have been committed. (2) Physical appearance and condition of victim. In matters of proof concerning the physical appearance and condition of the victim at the time of the alleged crime. (3) Breach of duty by victim counselor or victim counseling program. As to a communication relevant to an issue of breach of duty by the victim counselor or victim counseling program to the victim. (4) Mandatory reporting. To relieve victim counselors of any duty to refuse to report child abuse or neglect under chapter 350, domestic abuse under chapter 586, or abuse of a vulnerable adult under
- 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.
WITNESSES
- 601 General rule of competency.
- 602 Lack of personal knowledge.
- 603 Oath or affirmation.
- 621-16 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §50; am L 1972, c 104, §1(k)), provided that the court could "receive the evidence of any minor; provided, that the evidence of the minor is given upon his affirmation to tell the truth...; provided also, that no such evidence shall in any case be received unless it is proved to the satisfaction of the court ... that the minor perfectly understands the nature and object of the affirmation...." To the extent that the previous law required a "perfect" understanding, the current rule effects a liberalization of the competency standard for children. In Republic v. Ah Wong, 10 H. 524, 525 (1896), the court said: "There is no precise age within which children are excluded from testifying. Their competency is to be determined, not by their age, but by the degree of their knowledge and understanding." In Territory v. Titcomb, 34 H. 499, 502 (1938), the court announced that "the proper test must always be, does the lunatic understand what he is saying, and does he understand the obligation of an oath?.... [I]f he can stand the test proposed, the jury must determine all the rest." Rule 603.1 is consistent with the Ah Wong and Titcomb decisions. Case Notes Issue of complainant's competency to testify was reasonably called into question, and trial court committed plain error in failing to engage in independent inquiry and make an express finding as to whether complainant was competent to testify before allowing complainant's substantive testimony to be exposed to jury; supreme court not convinced beyond reasonable doubt that error harmless. 74 H. 479, 849 P.2d 58 (1993). Testimonial capacity of mentally defective person. 5 H. App. 659, 706 P.2d 1333 (1985).
- 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.
- 17-18, 575 P.2d 448, 459-60 (1978): The general rule is that a witness may be impeached through a showing of bias, hostility or prejudice, and this may be done by use of the witness' own testimony or by other evidence.... We believe that the correct rule is ... that before any bias of a witness can be introduced, a foundation must first be laid by cross-examining the witness regarding the facts which assertedly prove the bias. Two reasons are recognized ... for such a preliminary foundation. First, the foundational cross-examination gives the witness a fair opportunity to explain statements or equivocal facts which, standing alone, tend to show bias. Second, such cross-examination lends expediency to trials, for if the facts showing bias are admitted by the witness, the introduction of extrinsic evidence becomes unnecessary. Case Notes Admission of evidence of bias rests in the trial court's discretion. 67 H. 581, 698 P.2d 293 (1985). Bias, interest, or motive is always relevant. 69 H. 204, 738 P.2d 812 (1987). Trial court abused discretion by unconstitutionally excluding evidence of complainant's prior conviction, by prohibiting cross-examination of complainant, from which jury could have inferred that complainant had a motive to bring false charges against defendant and give false testimony at trial. 83 H. 109, 924 P.2d 1215 (1996). Trial court was correct only insofar as it stated, by quoting this rule, that the credibility of a witness may be attacked by evidence of bias, interest, or motive, and that such evidence pertaining to a witness' credibility is always relevant and admissible at trial; trial court erred, however, in ruling that such evidence could be used by the jury in considering petitioners' motives as plaintiffs in filing the present lawsuit. 129 H. 313, 300 P.3d 579 (2013). Where relevant evidence of witness' potential bias was elicited at trial, trial court properly balanced the prejudice concerns of defendant with the relevance and probative value of liability insurance evidence to reveal witness' potent
- 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.
- 704-416 overrides this rule. 71 H. 591, 801 P.2d 27 (1990).
- 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.
HEARSAY
- 801 Definitions.
- 802 Hearsay rule.
- 349-52 (1959), is to define the "most trustworthy class of statements" of witnesses to be turned over to the defense for impeachment purposes. Regarding the requirement that (e)(2) subdivision statements be "substantially verbatim," the court said: "It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available" under the Act. Since the purpose of Congress in writing subdivision (e) of the Jencks Act was similar to the legislative intent in adopting paragraph (1)(B) and (C) of the present rule, the Palermo case and other cases construing the Jencks Act, e.g., Williams v. United States, 338 F.2d 286 (D.C. Cir. 1964), will be helpful in defining the parameters of this rule. The trustworthiness of statements defined in paragraph (1)(A), (B), and (C) is further assured by the requirement that the witness-declarant be "subject to cross-examination concerning the subject matter of the statement." The situation envisioned is one where the witness has testified about an event and his prior written statement also describes that event but is inconsistent with his testimony. Since the witness can be cross-examined about the event and the statement, the trier of fact is free to credit his present testimony or his prior statement in determining where the truth lies. Because the witness is subject to cross-examination, the substantive use of his prior inconsistent statements does not infringe the sixth amendment confrontation rights of accused in criminal cases, see California v. Green, 399 U.S. 149 (1970). Paragraph (2): Rule 613(c) identifies three classes of prior consistent statements that are admissible for rehabilitation purposes. The present paragraph permits substantive use of these statements. This is consistent with prior Hawaii law, see State v. Altergott, 57 H. 492, 559 P.2d 728 (1977). Paragraph (3): The substantive use of prior identifications is allowed in Fed. R. Evid. 801(d)(1)(C), the Advisory C
- 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.
MISCELLANEOUS RULES
Case Notes
Where the indictment was in the circuit court's file and in the court's immediate possession as it was attached to the defendant's post-verdict motion and part of the records of the case, and the ready availability and accuracy of the indictment, which neither party contested, thus could not be questioned, the circuit court erred in failing to take judicial notice of the date the indictment was found and filed. 137 H. 19, 364 P.3d 917 (2016).
Where the indictment was in the record on appeal and was in the intermediate court of appeals' immediate possession and neither party disputed on appeal the validity and accuracy of the date of the indictment, and therefore the accuracy of the indictment could not be reasonably questioned, the court erred in failing to take judicial notice of the date the indictment was found and filed. 137 H. 19, 364 P.3d 917 (2016).
Cited: 133 H. 102, 324 P.3d 912 (2014).
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