EVIDENCE (LAW 543)
Fall 2015
HANDOUT # 4
STUDY AIDS & REVIEW TRANSCRIPT:
Comparing HRE to FRE
Side-by-side Comparison Charts
Note: the FREs were “restyled” in Dec. 2011 and the
wording is now different, but the substance of the rules has
not changed.
Professor John Barkai
William S. Richardson School of Law
University of Hawaii at Manoa
barkai@hawaii.edu
http://www2.hawaii.edu/~barkai/L543.html
TABLE OF CONTENTS
EVIDENCE
Prof. John Barkai
Page
COMPARING HRE TO FRE
HREs which do not appear in the FREs .............................
Major and Minor Differences between the rules .................
SIDE-BY-SIDE COMPARISON CHARTS FRE & HRE
404 Character Evidence ....................................................
407 Subsequent Remedial Measures ..............................
408 Compromise and offers to compromise .....................
412 Sexual Assault............................................................
606 Competency of juror as witness .................................
608 Character of Witness .................................................
609 Impeachment by Evidence of Conviction of Crime .....
613 Prior Statements of Witnesses ...................................
615 Exclusion of Witnesses ..............................................
700s Opinions and Expert Testimony .................................
F 801(d) - H 802.1 Hearsay: Prior Statements .................
F 801(d)(2) - H 803(a) Hearsay: Admissions .....................
803(6) Hearsay: Business Records ...................................
Hearsay Residual or Catch-All Exceptions .........................
804 Hearsay Exceptions: Unavailability, Former Testimony,
Dying Declarations, Other Exceptions,
Forfeiture by Wrongdoing ...........................................
1
2
3
4
5
6
8
9
10
11
12
14
15
16
17
18
19
HREs which do not appear in the FREs
The following Hawaii Rules do not appear in the Federal Rules:
HRE
100
Title and citation
102.1
Effect of commentary
202
Judicial Notice of law
301-306
Detailed scheme for presumptions
409.5
Expressions of sympathy and condolence (Apology)
501-512
Statutory privileges
603.1
Disqualifications of witnesses
609.1
Foundation for extrinsic impeachment for bias, interest or motive
616
Televised Testimony of child witness
702.1
Cross examination of experts
802.1
Hearsay exceptions when the witness is the declarant
[similar FRE provisions are 801(d) & 803(5)]
803(a)
Hearsay exceptions
(4)
Admission by predecessor in Interest
(5)
Admission by predecessor in Litigation
804(b)
Hearsay exceptions
(5)
Statement of recent perception
(6)
Statement by child
1102 Judge shall not comment upon the evidence to the jury
Professor John Barkai - U.H. Law School - Evidence
Page - 1
Major and Minor Differences
between the HRE and FRE
MAJOR DIFFERENCES
MINOR DIFFERENCES
PRESUMPTIONS
301
Presumptions (different approaches)
302-6 HRE - Specific Presumption Rules
RELEVANCE
404
FRE(a)(1) - Def's Character after attack
on Victim
407
Subsequent Remedial Measures
(products liability)
408
Compromise (settlement negotiations)
412
Sexual Assault (FRE '94; HRE '99)
413-5 Sexual Assault or Child Molestation
(FRE 1995)
501
Privileges (FRE general only)
502-12 HRE - Specific Privilege Rules
502
FRE new rule in 2008
WITNESSES
606(b) Juror as witness
608(b) Extrinsic Specific Conduct Impeachment
609
Impeachment by Conviction
613bc Extrinsic Evidence of Prior Inconsistent
& Consistent Statements
616
HRE - Televised testimony of child
703
FRE - Otherwise inadmissible facts
704
Expert Opinion on Ultimate Issue
HEARSAY
801
Assertion is not a whole statement
801d1 Signed prior statements (as substantive
evidence) - HRE 802.1(1)
804(1) Former testimony
804(2) Dying Declaration
1102 Judge shall not comment on the evidence
404(b) Notice if using other crimes evidence
408
HRE - Mediation is explicitly included
EXPERTS
701
FRE - Expert can't be a lay witness
702
HRE - (Montalbo-like sentence)
702
FRE - Daubert qualifications
703
HRE - (lack of trustworthiness sentence)
705
(Disclosed in discovery)
706
Court appointed experts
HEARSAY
801(d)(1)
803
Conspiracy
803(6) (Business Records) RCA
803(10) Absence of Public Records
804(b)(3) Statement Against Interest
804(b)(6) FRE - Forfeiture by wrongdoing.
807
FRE - Placement of residual exceptions
(HRE 803b24 & 804b7)
BEST EVIDENCE
1001
Definitions
1004
Other Evidence
1005
Public Records
Professor John Barkai - U.H. Law School - Evidence
Page - 2
RULE 404 CHARACTER EVIDENCE
HAWAII
FEDERAL - slightly amended in 2006
RULE 404 CHARACTER EVIDENCE NOT ADMISSIBLE TO
PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES.
(a) Character evidence generally. Evidence of a person's character or a
trait of a person's character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion, except:
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO
PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
(a) Character evidence generally. Evidence of a person's character or a
trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, except:
Same
(1) Character of accused. Evidence of a pertinent trait of character of an
accused offered by an accused, or by the prosecution to rebut the same;
(1) Character of accused. In a criminal case, evidence of a pertinent trait
of character offered by an accused, or by the prosecution to rebut the
same, or if evidence of a trait of character of the alleged victim of the
crime is offered by an accused and admitted under Rule 404 (a)(2),
evidence of the same trait of character of the accused offered by the
prosecution; [amended in 2000 & 2006]
Victim
(2) Character of victim. Evidence of a pertinent trait of character of the
victim of the crime offered by an accused, or by the prosecution to rebut
the same, or evidence of a character trait of peacefulness of the victim
offered by the prosecution in a homicide case to rebut evidence that the
victim was the first aggressor;
(2) Character of alleged victim. In a criminal case, and subject to the
limitations imposed by Rule 412, evidence of a pertinent trait of character
of the victim of the crime offered by an accused, or by the prosecution to
rebut the same, or evidence of a character trait of peacefulness of the
victim offered by the prosecution in a homicide case to rebut evidence
that the victim was the first aggressor;[2006]
(3) Character of witness. Evidence of the character of a witness, as
provided in rules 607, 608, 609, and 609.1.
(3) Character of witness. Evidence of the character of a witness, as
provided in rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible where such
evidence is probative of any other fact that is of consequence to the
determination of the action, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, MODUS OPERANDI, or
absence of mistake or accident. In criminal cases, the proponent of
evidence to be offered under this subsection shall provide reasonable
notice in advance of trial, or during trial if the court excuses pretrial notice
on good cause shown, of the DATE, LOCATION, and general nature of
any such evidence it intends to introduce at trial.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided that
upon request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.
Professor John Barkai - U.H. Law School - Evidence
Page - 3
Difference
Similar
H add 609.1
Modus
operandi
Minor
notice
difference
RULE 407. SUBSEQUENT REMEDIAL MEASURES
HAWAII
FEDERAL
When, after an event, measures are
taken which, if taken previously, would have
made the event less likely to occur, evidence of
the subsequent measures is not admissible to
prove negligence or culpable conduct in
connection with the event.
When, after an injury or harm
allegedly caused by an event, measures are
taken that, if taken previously, would have
made the injury or harm less likely to occur,
evidence of the subsequent measures is not
admissible to prove negligence, culpable
conduct, a defect in a product, a defect in a
product's design, or a need for a warning or
instruction. [amended in 1997]
This rule does not require the exclusion of
evidence of subsequent measures when offered
for another purpose, such as proving dangerous
defect in products liability cases, ownership,
control, or feasibility of precautionary
measures, if controverted, or impeachment.
This rule does not require the exclusion of
evidence of subsequent measures when offered
for another purpose, such as proving
ownership, control, or feasibility of
precautionary measures, if controverted, or
impeachment.
FRE ADVISORY COMMITTEE NOTES - 1997 Amendment
The amendment to Rule 407 makes two changes in the rule. First, the words "an injury or harm allegedly caused by" were added to clarify that the rule applies only to changes made after the
occurrence that produced the damages giving rise to the action. Evidence of measures taken by the defendant prior to the "event" causing "injury or harm" do not fall within the exclusionary scope of Rule
407 even if they occurred after the manufacture or design of the product. See Chase v. General Motors Corp., 856 F.2d 17, 21-22 (4th Cir. 1988).
Second, Rule 407 has been amended to provide that evidence of subsequent remedial measures may not be used to prove "a defect in a product or its design, or that a warning or instruction should
have accompanied a product." This amendment adopts the view of a majority of the circuits that have interpreted Rule 407 to apply to products liability actions. See Raymond v. Raymond Corp., 938
F.2d 1518, 1522 (1st Cir. 1991); In re Joint Eastern District and Southern District Asbestos Litigation v. Armstrong World industries, Inc., 995 F.2d 343 (2d Cir. 1993); Cann v. Ford Motor Co., 658
F.2d 54, 60 (2d Cir. 1981), cert. denied, 456 U.S. 960 (1982); Kelly v. Crown Equipment Co., 970 F.2d 1273, 1275 (3d Cir. 1992); Werner v. Upjohn, Inc., 628 F.2d 848 (4th Cir. 1980); cert. denied,
449 U.S. 1080 (1981); Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc., 695 F.2d 883 (5th Cir. 1983); Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F.2d 230, 232 (6th Cir. 1980);
Flaminio v. Honda Motor Company, Ltd., 733 F.2d 463, 469 (7th Cir. 1984); Gauthier v. AMF, Inc., 788 F.2d 634, 636-37 (9th Cir. 1986).
Although this amendment adopts a uniform federal rule, it should be noted that evidence of subsequent remedial measures may be admissible pursuant to the second sentence of Rule 407. Evidence
of subsequent measures that is not barred by Rule 407 may still be subject to exclusion on Rule 403 grounds when the dangers of prejudice or confusion substantially outweigh the probative value of the
evidence.
GAP Report on Rule 407. The words "injury or harm" were substituted for the word "event " in line 3. The stylization changes in the second sentence of the rule were eliminated. The words "causing
'injury or harm' " were added to the Committee Note.
Professor John Barkai - U.H. Law School - Evidence
Page - 4
RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
HAWAII
FEDERAL - rewritten in 2006
Evidence of (1) furnishing or offering or
promising to furnish, or (2) accepting or
offering or promising to accept, a valuable
consideration in compromising or attempting
to compromise a claim which was disputed as
to either validity or amount, or (3) mediation or
attempts to mediate a claim which was
disputed, is not admissible to prove liability for
or invalidity of the claim or its amount.
Evidence of conduct or statements made in
compromise negotiations or mediation
proceedings is likewise not admissible. This
rule does not require the exclusion of any
evidence otherwise discoverable merely
because it is presented in the course of
compromise negotiations or mediation
proceedings.
(a) Prohibited uses. Evidence of the following
is not admissible on behalf of any party, when
offered to prove liability for, invalidity of, or
amount of a claim that was disputed as to
validity or amount, or to impeach through a
prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to
furnish or accepting or offering or promising to
accept a valuable consideration in
compromising or attempting to compromise
the claim ; and
(2) conduct or statements made in compromise
negotiations regarding the claim, except when
offered in a criminal case and the negotiations
related to a claim by a public office or agency
in the exercise of regulatory, investigative, or
enforcement authority.
This rule also does not require exclusion when
the evidence is offered for another purpose,
such as proving bias or prejudice of a witness,
negativing a contention of undue delay, or
proving an effort to obstruct a criminal
investigation or prosecution.
(b) Permitted uses. This rule does not require
exclusion if the evidence is offered for
purposes not prohibited by subdivision (a).
Examples of permissible purposes include
proving a witness's bias or prejudice; negating
a contention of undue delay; and proving an
effort to obstruct a criminal investigation or
prosecution.
Professor John Barkai - U.H. Law School - Evidence
Page - 5
RULE 412 SEXUAL ASSAULT
HAWAII - Amended 1999
RULE 412. SEXUAL OFFENSE AND SEXUAL HARASSMENT CASES; RELEVANCE
OF VICTIM'S PAST BEHAVIOR
(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused
of sexual offense, reputation or opinion evidence of the past sexual behavior of an alleged victim
of the sexual offense is not admissible to prove the character of the victim to show action in
conformity therewith.
(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused
of a sexual offense, evidence of an alleged victim's past sexual behavior other than reputation or
opinion evidence is not admissible to prove the character of the victim to show action in
conformity therewith, unless the evidence is:
(1) Admitted in accordance with subsection (c)(1) and (2) and is constitutionally required to be
admitted; or
(2) Admitted in accordance with subsection (c) and is evidence of:
(A) Past sexual behavior with persons other than the accused, offered by the accused upon the
issue of whether the accused was or was not, with respect to the alleged victim, the source of
semen or injury; or
(B) Past sexual behavior with the accused and is offered by the accused upon the issue of
whether the alleged victim consented to the sexual behavior with respect to which sexual assault is
alleged.
(c)(1)-(3) [Procedures for Admissibility - See Next Page]
(d) In any civil action alleging conduct which constitutes a sexual offense or sexual harassment,
opinion evidence, reputation evidence, and evidence of specific instances of plaintiff's sexual
conduct, or any of such evidence, is not admissible by the defendant to prove consent by the
plaintiff or the absence of injury to the plaintiff, unless the injury alleged by the plaintiff is in the
nature of loss of consortium.
(e) Subsection (d) shall not be applicable to evidence of the plaintiff's sexual conduct with the
alleged perpetrator.
(f) In a civil action alleging conduct which constitutes a sexual offense or sexual harassment, if
the plaintiff introduces evidence, including testimony of a witness, or the plaintiff as a witness gives
testimony, and the evidence or testimony relates to the plaintiff's sexual conduct, the defendant
may cross- examine the witness who gives the testimony and offer relevant evidence limited
specifically to the rebuttal of the evidence introduced by the plaintiff or given by the plaintiff.
(g) Nothing in subsections (d), (e) or (f) shall be construed to make inadmissible evidence
offered to attack the credibility of the plaintiff.
(h) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than
the sexual behavior with respect to which a sexual offense or sexual harassment is alleged.
Professor John Barkai - U.H. Law School - Evidence
FEDERAL - restyled
FRE 412. Sex Offense Cases
The Victim’s Sexual Behavior or Predisposition
(a)
Prohibited Uses. The following evidence is not admissible in a
civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual
behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b)
Exceptions.
(1) Criminal Cases. The court may admit the following evidence in
a criminal case:
(A) evidence of specific instances of a victim’s sexual
behavior, if offered to prove that someone other than the
defendant was the source of semen, injury, or other
physical evidence;
(B) evidence of specific instances of a victim’s sexual
behavior with respect to the person accused of the sexual
misconduct, if offered by the defendant to prove consent
or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s
constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence
offered to prove a victim’s sexual behavior or sexual
predisposition if its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any
party. The court may admit evidence of a victim’s reputation
only if the victim has placed it in controversy.
(c)
Procedure to Determine Admissibility. [See next page]
Page - 6
RULE 412 SEXUAL ASSAULT - Procedures for Admissibility
HAWAII - Amended 1999
RULE 412. SEXUAL OFFENSE AND SEXUAL HARASSMENT CASES;
RELEVANCE OF VICTIM'S PAST BEHAVIOR
(c)(1) If the person accused of committing a sexual offense intends to offer
under subsection (b) evidence of specific instances of the alleged victim's past
sexual behavior, the accused shall make a written motion to offer the evidence
not later than fifteen days before the date on which the trial in which the
evidence is to be offered is scheduled to begin, except that the court may allow
the motion to be made at a later date, including during trial, if the court
determines either that the evidence is newly discovered and could not have
been obtained earlier through the exercise of due diligence or that the issue to
which the evidence relates has newly arisen in the case. Any motion made
under this paragraph shall be served on all other parties and on the alleged
victim.
(2) The motion described in paragraph (1) shall be accompanied by a written
offer of proof. If the court determines that the offer of proof contains evidence
described in subsection (b), the court shall order a hearing in chambers to
determine if the evidence is admissible. At the hearing, the parties may call
witnesses, including the alleged victim, and offer relevant evidence.
Notwithstanding subsection (b) of rule 104, if the relevancy of the evidence that
the accused seeks to offer in the trial depends upon the fulfillment of a
condition of fact, the court, at the hearing in chambers or at a subsequent
hearing in chambers scheduled for this purpose, shall accept evidence on the
issue of whether such condition of fact is fulfilled and shall determine the issue.
(3) If the court determines on the basis of the hearing described in paragraph
(2) that the evidence that the accused seeks to offer is relevant and that the
probative value of the evidence outweighs the danger of unfair prejudice, the
evidence shall be admissible in the trial to the extent an order made by the court
specifies evidence that may be offered and areas with respect to which the
alleged victim may be examined or cross-examined.
Professor John Barkai - U.H. Law School - Evidence
FEDERAL
FRE 412. Sex Offense Cases
(c)
Procedure to Determine Admissibility.
(1)
Motion. If a party intends to offer evidence under Rule 412(b),
the party must:
(A)
file a motion that specifically describes the evidence and states
the purpose for which it is to be offered;
(B)
do so at least 14 days before trial unless the court, for good
cause, sets a different time;
(C)
serve the motion on all parties; and
(D)
notify the victim or, when appropriate, the victim’s guardian or
representative.
(2) Hearing. Before admitting evidence under this rule, the court
must conduct an in camera hearing and give the victim and
parties a right to attend and be heard. Unless the court orders
otherwise, the motion, related materials, and the record of the
hearing must be and remain sealed.
(d)
Definition of “Victim.” In this rule, “victim” includes an
alleged victim.
and remain under seal unless the court orders otherwise.
Page - 7
RULE 606. COMPETENCY OF JUROR AS WITNESS
HAWAII
FEDERAL - 606(b) was amended in 2006
(a) At the trial. A member of the jury may not testify as a
witness before that jury in the trial of the case in which the
member is sitting as a juror. [similar]
(a) At the trial. A member of the jury may not testify as
a witness before that jury in the trial of the case in which
the juror is sitting. If the juror is called so to testify, the
opposing party shall be afforded an opportunity to object
out of the presence of the jury.
(b) Inquiry into validity of verdict or indictment. Upon
an inquiry into the validity of a verdict or indictment, a juror
may not testify
(b) Inquiry into validity of verdict or indictment.
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify
as to any matter or statement occurring during the
course of the jury's deliberations or to
concerning the EFFECT of anything upon the juror's or
any other juror's mind or emotions as influencing the juror
to assent to or dissent from the verdict or indictment or
the effect of anything upon that or any other juror's mind
or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or
concerning the juror's mental processes in connection
therewith.
concerning the juror's mental processes in connection
therewith.
But a juror may testify about (1) whether EXTRANEOUS
PREJUDICIAL INFORMATION was improperly brought
to the jury's attention, (2) whether any OUTSIDE
INFLUENCE was improperly brought to bear upon any
juror, or (3) whether there was a mistake in entering the
verdict onto the verdict form.
Nor may the juror's affidavit or evidence of any statement
by the juror indicating an effect of this kind be received.
Professor John Barkai - U.H. Law School - Evidence
A juror's affidavit or evidence of any statement by the
juror may not be received on a matter about which the
juror would be precluded from testifying.
Page - 8
RULE 608. EVIDENCE OF CHARACTER AND CONDUC
HAWAII
FEDERAL
RULE 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character.
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to these
limitations:
(1) The evidence may refer only to character for truthfulness or
untruthfulness, and
(2) Evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion
or reputation evidence or otherwise.
Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to these
limitations:
(1) the evidence may refer only to character for truthfulness or
untruthfulness, and
(2) evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion
or reputation evidence or otherwise.
(b) Specific instances of conduct.
Specific instances of the conduct of a witness, for the purpose of
attacking the witness' credibility, if probative of untruthfulness, MAY be
inquired into on cross-examination of the witness and, IN THE
DISCRETION OF THE COURT, MAY be proved by extrinsic
evidence. When a witness testifies to the character of another witness
under paragraph (a), relevant specific instances of the other witness'
conduct may be inquired into on cross-examination but may not be
proved by extrinsic evidence.
(b) Specific instances of conduct.
Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness' character for truthfulness, other
than conviction of crime as provided in rule 609, may NOT be
proved by extrinsic evidence. They may, however, in the discretion
of the court, if probative of truthfulness or untruthfulness, be
inquired into on cross- examination of the witness (1) concerning the
witness' character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of
another witness as to which character the witness being
cross-examined has testified.
The giving of testimony, whether by an accused or by any other
witness, does not operate as a waiver of the witness' privilege against
self-incrimination when examined with respect to matters which relate
only to credibility.
The giving of testimony, whether by an accused or by any other
witness, does not operate as a waiver of the accused's or the witness'
privilege against self-incrimination when examined with respect to
matters which relate only to character for truthfulness.
Professor John Barkai - U.H. Law School - Evidence
Page - 9
The Same
Important
difference
Virtually
the same
RULE 609 IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME.
HAWAII
FEDERAL - slightly amended in 2006
RULE 609 IMPEACHMENT BY EVIDENCE OF
CONVICTION OF CRIME.
(a) General rule. For the purpose of attacking the credibility of
a witness, evidence that the witness has been convicted of a crime
is inadmissible except when the crime is one involving dishonesty.
However, in a criminal case where the defendant takes the stand,
the defendant shall not be questioned or evidence introduced as to
whether the defendant has been convicted of a crime, for the sole
purpose of attacking credibility, unless the defendant has oneself
introduced testimony for the purpose of establishing the
defendant's credibility as a witness, in which case the defendant
shall be treated as any other witness as provided in this rule.
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General rule. For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be
admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in
excess of one year under the law under which the witness was convicted, and evidence that an
accused has been convicted of such a crime shall be admitted if the court determines that the
probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted, regardless of
the punishment, if it readily can be determined that establishing the elements of the crime
required proof or admission of an act of dishonesty or false statement by the witness..
(b) Effect of pardon. Evidence of a conviction is not admissible
under this rule if the conviction has been the subject of a pardon.
(c) Juvenile convictions. Evidence of juvenile convictions is
admissible to the same extent as are criminal convictions under
subsection (a) of this rule.
(d) Pendency of appeal. The pendency of an appeal therefrom
does not render evidence of a conviction inadmissible. Evidence of
the pendency of an appeal is admissible.
Professor John Barkai - U.H. Law School - Evidence
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than
ten years has elapsed since the date of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later date, unless the court determines, in
the interests of justice, that the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more
than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party
sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not
admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate
of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person
convicted, and that person has not been convicted of a subsequent crime that was punishable by death
or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon,
annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this
rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness
other than the accused if conviction of the offense would be admissible to attack the credibility of an
adult and the court is satisfied that admission in evidence is necessary for a fair determination of the
issue of guilt or innocence.
(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a
conviction inadmissible. Evidence of the pendency of an appeal is admissible.
Page - 10
RULE 613 PRIOR STATEMENTS OF WITNESSES.
HAWAII
FEDERAL
RULE 613. PRIOR STATEMENTS OF WITNESSES
(a) Examining witness concerning prior statement. In examining a witness
concerning a prior statement made by the witness, whether written or not, the
statement need not be shown nor its contents disclosed to the witness at that time,
but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic
evidence of a prior inconsistent statement by a witness is not admissible unless, on
direct or cross-examination, (1) the circumstances of the statement have been
brought to the attention of the witness, and (2) the witness has been asked whether
the witness made the statement.
(c) Prior consistent statement of witness. Evidence of a statement previously
made by a witness that is consistent with the witness' testimony at the trial is
admissible to support the witness' credibility only if it is offered after:
(1) Evidence of the witness' prior inconsistent statement has been admitted for
the purpose of attacking the witness' credibility, and the consistent statement was
made before the inconsistent statement; or
(2) An express or implied charge has been made that the witness' testimony at
the trial is recently fabricated or is influenced by bias or other improper motive,
and the consistent statement was made before the bias, motive for fabrication, or
other improper motive is alleged to have arisen; or
(3) The witness' credibility has been attacked at the trial by imputation of
inaccurate memory, and the consistent statement was made when the event was
recent and the witness' memory fresh.
RULE 613 PRIOR STATEMENTS OF WITNESSES
(a) Examining witness concerning prior statement. In examining a
witness concerning a prior statement made by the witness, whether written or
not, the statement need not be shown nor its contents disclosed to the witness
at that time, but on request the same shall be shown or disclosed to opposing
counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny
the same and the opposite party is afforded an opportunity to interrogate the
witness thereon, or the interests of justice otherwise require. This provision
does not apply to admissions of a party-opponent as defined in rule
801(d)(2).
Professor John Barkai - U.H. Law School - Evidence
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RULE 615 EXCLUSION OF WITNESSES
HAWAII
FEDERAL
RULE 615 EXCLUSION OF
WITNESSES.
At the request of a party the court
shall order witnesses excluded so
that they cannot hear the testimony
of other witnesses, and it may
make the order of its own motion.
This rule does not authorize
exclusion of (1) a party who is a
natural person, or (2) an officer or
employee of a party which is not a
natural person designated as its
representative by its attorney, or (3)
a person whose presence is shown
by a party to be essential to the
presentation of the party's cause.
RULE 615 EXCLUSION OF
WITNESSES.
At the request of a party the court
shall order witnesses excluded so
that they cannot hear the testimony
of other witnesses, and it may
make the order of its own motion.
This rule does not authorize
exclusion of (1) a party who is a
natural person, or (2) an officer or
employee of a party which is not a
natural person designated as its
representative by its attorney, or (3)
a person whose presence is shown
by a party to be essential to the
presentation of the party's cause,
or (4) a person authorized by
statute to be present.
Subsection (4) was added to FRE 615 in 1998 in response to: (1) the
Victim's
guarantees, within certain limits, the right of a crime victim to attend the
Professor John Barkai - U.H. Law School - Evidence
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EXPERT OPINIONS 1
HAWAII
FEDERAL ReStyled
RULE 701 OPINION TESTIMONY BY LAY WITNESSES.
If the witness is not testifying as an expert, the witness' testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the
witness, and (2) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue.
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702
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 opinion or otherwise. In
determining the issue of 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.
[this sentence was added to the Hawaii rule in 1992 after Montalbo]
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
RULE 702.1 CROSS-EXAMINATION OF EXPERTS.
RULE 703 BASES OF OPINION TESTIMONY BY EXPERTS.
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence. The court
may, however, disallow testimony in the form of an opinion or inference if
the underlying facts or data indicate lack of trustworthiness.
[this sentence was added to the language from the federal rule "to clarify
the court's discretion to exclude untrustworthy opinions" - says the
commentary]
Professor John Barkai - U.H. Law School - Evidence
Rule 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in
the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. But if the facts or data
would otherwise be inadmissible, the proponent of the opinion may
disclose them to the jury only if their probative value in helping the
jury evaluate the opinion substantially outweighs their prejudicial
effect.
Page - 13
EXPERT OPINIONS 2
HAWAII
RULE 704 OPINION ON ULTIMATE ISSUE.
Testimony in the form of an opinion or inference otherwise admissible
is not objectionable because it embraces an ultimate issue to be decided by
the trier of fact.
RULE 705
DISCLOSURE OF FACTS OR DATA UNDERLYING
EXPERT OPINION.
The expert may testify in terms of opinion or inference and give the
expert's reasons therefore without disclosing the underlying facts or data
IF THE UNDERLYING FACTS OR DATA HAVE BEEN DISCLOSED
IN DISCOVERY PROCEEDINGS. The expert may in any event be
required to disclose the underlying facts or data on cross-examination.
RULE 706 COURT-APPOINTED EXPERTS.
In the exercise of its discretion, the court may authorize disclosure to
the jury of the fact that a particular expert witness was appointed by the
court.
Professor John Barkai - U.H. Law School - Evidence
FEDERAL Restyled
Rule 704. Opinion on an Ultimate Issue
(a) In General — Not Automatically Objectionable. An opinion is
not objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an
opinion about whether the defendant did or did not have a mental
state or condition that constitutes an element of the crime charged or
of a defense. Those matters are for the trier of fact alone.
Rule 705. Disclosing the Facts or Data Underlying an Expert’s
Opinion
Unless the court orders otherwise, an expert may state an opinion —
and give the reasons for it — without first testifying to the underlying
facts or data. But the expert may be required to disclose those facts or
data on cross-examination.
Rule 706. Court-Appointed Expert Witnesses
(a) Appointment Process. … the court may order the parties to show
cause why expert witnesses should not be appointed and may ask the
parties to submit nominations. The court may appoint any expert that
the parties agree on and any of its own choosing…
(b) Expert’s Role. The court must inform the expert of the expert’s
duties. The court may do so in writing and have a copy filed with the
clerk or may do so orally at a conference in which the parties have an
opportunity to participate. The expert:
(1) must advise the parties of any findings the expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that
called the expert.
(c) Compensation. … entitled to a reasonable compensation,
(d) Disclosing the Appointment to the Jury. The court may
authorize disclosure to the jury …
(e) Parties’ Choice of Their Own Experts. This rule does not limit...
Page - 14
HEARSAY - PRIOR STATEMENTS
HAWAII - Hearsay Exception
RULE 802.1 HEARSAY EXCEPTION; PRIOR STATEMENTS
BY WITNESSES.
The following statements previously made by witnesses who
testify at the trial or hearing are not excluded by the hearsay rule:
(1) Inconsistent statement. The declarant is subject to
cross-examination concerning the SUBJECT MATTER of the
declarant's statement, the statement is inconsistent with the declarant's
testimony, the statement is offered in compliance with rule 613(b), and
the statement was:
(A) Given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition; or
(B) Reduced to writing and signed or otherwise adopted or
approved by the declarant; or
(C) Recorded in substantially verbatim fashion by stenographic,
mechanical, electrical, or other means contemporaneously with the
making of the statement;
(2) Consistent statement. The declarant is subject to
cross-examination concerning the subject matter of the declarant's
statement, the statement is consistent with the declarant's testimony, and
the statement is offered in compliance with rule 613(c);
(3) Prior identification. The declarant is subject to
cross-examination concerning the subject matter of the declarant's
statement, and the statement is one of identification of a person made
after perceiving that person; or
(4) Past recollection recorded. [treated as an 803 exception in
the federal rules, FRE 803(5)
FEDERAL - Not Hearsay
RULE 801. DEFINITIONS
The following definitions apply under this article:
(d) Statements which are not hearsay. A statement is not
hearsay if-(1) Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross-examination CONCERNING
THE STATEMENT, and the statement is
(A) inconsistent with the declarant's testimony, and was given under
oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition, or
(B) consistent with the declarant's testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or
improper influence or motive, or
(C) one of identification of a person made after perceiving the person;
The Hawaii rule is more liberal on the admission of prior inconsistent statements than the federal rule, and the California rule is even more liberal
than the Hawaii rule.
California Evidence Code § 1235. Inconsistent statement
Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at
the hearing and is offered in compliance with Section 770.
Professor John Barkai - U.H. Law School - Evidence
Page - 15
HEARSAY ADMISSIONS
HAWAII 803(a)
RULE 803 HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT
IMMATERIAL.
The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
(a) Admissions.
(1) Admission by party-opponent. A statement that is offered against a party and is
(A) the party's own statement, in either the party's individual or a representative
capacity, or (B) a statement of which the party has manifested the party's adoption or
belief in its truth.
(2) Vicarious admissions. A statement that is offered against a party and was uttered
by (A) a person authorized by the party to make such a statement,
(B) the party's agent or servant concerning a matter within the scope of the agent's or
servant's agency or employment, made during the existence of the relationship, or
(C) a co-conspirator of the party during the course and in furtherance of the
conspiracy.
(3) - (5) [Not in the FRE]
FEDERAL 802(d)(2) - [Eff. Dec. 1, 1997]
RULE 801. DEFINITIONS
(d)(2) Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement in either an individual or a representative capacity or (B) a
statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the
subject, or
(D) a statement by the party's agent or servant concerning a matter within the scope of
the agency or employment, made during the existence of the relationship, or
(E) a statement by a coconspirator of a party during the course and in furtherance of the
conspiracy. The contents of the statement shall be considered but are not alone
sufficient to establish the declarant's authority under subdivision (C), the agency or
employment relationship and scope thereof under subdivision (D), or the existence of
the conspiracy and the participation therein of the declarant and the party against whom
the statement is offered under subdivision (E). [JB Note: this last underlined sentence
was added Dec. 1, 1997]
ADVISORY COMMITTEE NOTES - 1997 Amendment
Rule 801(d)(2) has been amended in order to respond to three issues raised by Bourjaily v. United States, 483 U.S. 171 (1987). First, the amendment codifies the holding in
Bourjaily by stating expressly that a court shall consider the contents of a coconspirator's statement in determining "the existence of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered." According to Bourjaily, Rule 104(a) requires these preliminary questions to be established by a preponderance of the
evidence.
Second, the amendment resolves an issue on which the Court had reserved decision. It provides that the contents of the declarant's statement do not alone suffice to establish
a conspiracy in which the declarant and the defendant participated. The court must consider in addition the circumstances surrounding the statement, such as the identity of the
speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question. This
amendment is in accordance with existing practice. Every court of appeals that has resolved this issue requires some evidence in addition to the contents of the statement. See, e.g.,...
United States v. Silverman, 861 F.2d 571, 577 (9th Cir.1988)....
Third, the amendment extends the reasoning of Bourjaily to statements offered under subdivisions (C) and (D) of Rule 801(d)(2). In Bourjaily, the Court rejected treating
foundational facts pursuant to the law of agency in favor of an evidentiary approach governed by Rule 104(a). The Advisory Committee believes it appropriate to treat analogously
preliminary questions relating to the declarant's authority under subdivision (C), and the agency or employment relationship and scope thereof under subdivision (D).
Professor John Barkai - U.H. Law School - Evidence
Page - 16
BUSINESS RECORDS R803(6)
RECORDS OF REGULARLY CONDUCTED ACTIVITY
HAWAII
803(b)(6) Records of regularly conducted activity.
A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made in the course of a regularly conducted
activity, at or near the time of the acts, events,
conditions, opinions, or diagnoses, as shown by the
testimony of the custodian or other qualified witness, or
by certification that complies with rule 902(11) or a
statute permitting certification, unless the sources of
information or other circumstances indicate lack of
trustworthiness.
[Certification language added in 2002.]
FEDERAL
803(6) Records of regularly conducted
activity. A memorandum, report, record, or
data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information
transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business
activity, and if it was the regular practice of that
business activity to make the memorandum,
report, record, or data compilation, all as shown
by the testimony of the custodian or other
qualified witness, or by certification that
complies with rule 902(11), rule 902(12), or a
statute permitting certification, unless the
source of information or the method or
circumstances of preparation indicate lack of
trustworthiness. The term "business" as used
in this paragraph includes business, institution,
association, profession, occupation, and calling
of every kind, whether or not conducted for
profit.
[Certification language added in 2000.]
Professor John Barkai - U.H. Law School - Evidence
Page - 17
HEARSAY "RESIDUAL" or CATCH-ALL EXCEPTIONS
HAWAII
803(b)(24) & 804(b)(7) Other exceptions.
A statement not specifically covered by any of the
exceptions in this paragraph (b) but having equivalent
circumstantial guarantees of trustworthiness, if the court
determines that
FEDERAL - [Eff. Dec. 1, 1997]
807 Residual Exception. A statement not specifically
covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded
by the hearsay rule, if the court determines that
(A) the statement is offered as evidence of a material fact;
(A) the statement is more probative on the point for which it
is offered than any other evidence which the proponent can
procure through reasonable efforts, and
(B) the general purposes of these rules and the interests of
justice will best be served by admission of the statement into
evidence.
However, a statement may not be admitted under this
exception unless the proponent of it makes known to the
adverse party sufficiently in advance of the trial or hearing to
provide the adverse party with a fair opportunity to prepare
to meet it, the proponent's intention to offer the statement
and the particulars of it, including the name and address of
the declarant.
Professor John Barkai - U.H. Law School - Evidence
(B) the statement is more probative on the point for which it
is offered than any other evidence which the proponent can
procure through reasonable efforts; and
(C) the general purposes of these rules and the interests of
justice will best be served by admission of the statement into
evidence.
However, a statement may not be admitted under this
exception unless the proponent of it makes known to the
adverse party sufficiently in advance of the trial or hearing to
provide the adverse party with a fair opportunity to prepare
to meet it, the proponent's intention to offer the statement
and the particulars of it, including the name and address of
the declarant.
Page - 18
804 HEARSAY EXCEPTIONS
HAWAII
804(b) Hearsay exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
FEDERAL
804(a) Definition of unavailability. "Unavailability as a witness"
includes situations in which the declarant-(5) is absent from the hearing and the proponent of a statement has
been unable to procure the declarant's attendance (or in the case of a
hearsay exception under subdivision (b)(2), (3), or (4), the declarant's
attendance or testimony) by process or other reasonable means.
804(b)(1) Former testimony. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition taken in
compliance with law in the course of the same or another proceeding, at
the instance of or against a party with an opportunity to develop the
testimony by direct, cross, or redirect examination, with motive and
interest similar to those of the party against whom now offered;
804(b)(1) Former testimony. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition taken in
compliance with law in the course of the same or another proceeding, if
the party against whom the testimony is now offered, or, in a civil action
or proceeding, a predecessor in interest, had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect
examination.
(2) Statement under belief of impending death. A statement made by
a declarant while believing that the declarant's death was imminent,
concerning the cause or circumstances of what the declarant believed to
be the declarant's impending death.
(2) Statement under belief of impending death. In a prosecution for
homicide or in a civil action or proceeding, a statement made by a
declarant while believing that the declarant's death was imminent,
concerning the cause or circumstances of what the declarant believed to
be impending death.
(5) Statement of recent perception. [unique to HRE]
(6) Statement by child. [unique to HRE]
(6)Forfeiture by wrongdoing. A statement offered against a party that
has engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness. [Eff. Dec. 1,
1997.]
(7) Other exceptions. [Similar FRE provision has moved to FRE 807,
effective, Dec. 1, 1997.]
Professor John Barkai - U.H. Law School - Evidence
Page - 19