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VIEWS: 59 PAGES: 276

									EVIDENCE (LAW 543)                                           Fall 2011

                     HANDOUT # 3


              CASES & PROBLEMS:

                          TOPICS:

                    Hearsay
                Character & Habit
             Other Relevance Issues
              Lay & Expert Opinion
                    Privileges
                 Presumptions
                 Judicial Notice

     Professor John Barkai & Judge Richard Pollack
          William S. Richardson School of Law
              University of Hawaii at Manoa
                   barkai@hawaii.edu
       http://www2.hawaii.edu/~barkai/L543.html


         Cases are reprinted from Westlaw with permission.
                             TABLE OF CONTENTS


HEARSAY Case
squibs …………………………………………………………1
HEARSAY HYPOTHETICALS .................................................................. 3
STATE v. FELICIANO, 2 Haw.App. 633, 638 P.2d 866 (1982) .................. 5
STATE v. CONNALLY, 79 Haw. 123, 899 P.2d 406 (1995) ....................... 6

HEARSAY - PRIOR STATEMENTS - HRE 802.1 ...................................... 8
STATE v. ILDEFONSO, 72 Haw. 573, 827 P.2d 648 (1992)...................... 9
PRIOR STATEMENT PROBLEMS ........................................................... 13

ADMISSIONS
HEARSAY - 1997 Admissions Amendment ............................................. 14
STATE v. GANO, 92 Haw. 161, 988 P.2d 1153 (1999) ............................ 15
ADMISSIONS PROBLEMS ..................................................................... 18

803 EXCEPTIONS

PRESENT SENSE IMPRESSIONS & EXCITED UTTERANCES
STATE v. ZUKEVICH, 84 Haw. 203, 932 P.2d 340 (1997) ....................... 20
STATE v. ORTIZ 74 Haw. 343, 845 P.2d 547 (1993) 25 ......................... 25
STATE v. MACHADO, 109 Haw. 445, 127 P.3d 941 (2006) ..................... 28
STATE V. DELOS SANTOS, Unpublished Opinion, 121 Hawai'i 471 (2009) (Haw. App.) ........ 31
PRESENT SENSE IMPRESSION & EXCITED UTTERANCE PROBLEMS ............. 34

PRESENT STATE OF MIND OR PHYSICAL CONDITION
MUTUAL LIFE INS. CO. v. HILLMON, 145 U.S. 285 (1892) .................... 35
PRESENT STATE OF MIND OR PHYSICAL CONDITION PROBLEMS . 38
MEDICAL DIAGNOSIS OR TREATMENT PROBLEMS .......................... 39

PAST RECOLLECTION RECORDED PROBLEMS ................................. 40

BUSINESS RECORDS
PALMER v. HOFFMAN, 318 U.S. 109 (1943) ........................................... 41
JOHNSON v. LUTZ, 170 N.E. 517 (1930)................................................ 42
BUSINESS RECORDS (HRE & FRE side-by-side) ................................. 43
BUSINESS RECORDS (RCA) PROBLEMS ............................................. 46
PUBLIC RECORDS
STATE v. OFA, 9 Haw.App. 130, 828 P.2d 813 (1992) .......................... 48
STATE v. JHUN, 83 Haw. 472, 927 P.2d 1355 (1996).............................. 50
PUBLIC RECORDS PROBLEMS ........................................................... 53

EXPERT TREATISE, JUDGMENT OF PREVIOUS CONVICTION
& OTHER 803 HEARSAY PROBLEMS ................................................... 54

804 EXCEPTIONS -UNAVAILABILITY
STATE v. KIM, 55 Haw. 346, 519 P.2d 1241 (1974) ................................ 56

FORMER TESTIMONY
STATE v. LINCOLN, 71 Haw. 274, 789 P.2d 497 (1990) ......................... 58
FORMER TESTIMONY PROBLEMS ....................................................... 60

DYING DECLARATIONS
SHEPARD v. UNITED STATES ............................................................... 62
DYING DECLARATION PROBLEMS .................................................... 563

DECLARATIONS AGAINST INTEREST
STATE v. MABUTI 72 Haw. 106, 807 P.2d 1264 (1991) ......................... 65
STATE v. BATES 70 Haw. 343, 771 P.2d 509 (1989) ............................ 67
WILLIAMSON v. U.S., 512 U.S. 594 (1994) ............................................. 69
STATEMENT AGAINST INTEREST - MATCHING QUESTIONS ........... 71

HEW v. ARUDA, 51 Haw. 451, 462 P.2d 476 .......................................... 73

HEARSAY "RESIDUAL" or CATCH-ALL EXCEPTIONS.......................... 75
STATE v. DURRY .................................................................................... 76

CHARACTER EVIDENCE ........................................................................ 77
MICHELSON v. UNITED STATES, 335 U.S. 469 (1948) ......................... 78
MEYER v. CITY AND COUNTY 69 Haw. 8, 731 P.2d 149 (1986) ........... 80
STATE V. KEKONA, 120 Haw. 420, 209 P.3d 1234 (2009) R404(a) ...................... 81
STATE v. CASTRO 69 Haw. 633, 756 P.2d 1033 (1988) ....................... 83
STATE v. STEGER 114 Hawai'i 162, 158 P.3d 280 (2006) ...................... 86
STATE v. POND 118 Haw. 452, 193 P.3d 368 (2008) HRE 404(b)                          89
STATE v. FETELEE,117 Hawai'i 53, 175 P.3d 709 (2008) ....................... 91

Professor John Barkai, U.H. Law School - Evidence                                            Page - iii
CHARACTER EVIDENCE PROBLEMS 1 ................................................ 97
CHARACTER EVIDENCE PROBLEMS 2 ................................................ 99

OTHER RELEVANCE ISSUES............................................................... 100
RULE 412 SEXUAL ASSAULT (side-by-side) ....................................... 101
STATE v. CALBERO, 71 Haw. 115, 785 P.2d 157 (1989) ..................... 103
FEDERAL RULES OF EVIDENCE 413, 414, 415.................................. 106
SEXUAL ASSAULT PROBLEMS........................................................... 110

HABIT
STATE v. OKUDA, 71 Haw. 434, 795 P.2d 1 (1990) ............................ 111
HABIT PROBLEMS ............................................................................... 112

SUBSEQUENT REMEDIAL MEASURES
AULT v. INTERNATIONAL HARVESTER COMPANY ........................... 113
R 407. SUBSEQUENT REMEDIAL MEASURES (side-by-side) ............ 116
STATE v. GANO, 92 Haw. 161, 988 P.2d 1153 (1999) .......................... 118
RELEVANCY 407 - 411 PROBLEMS .................................................... 123

OPINIONS - LAY & EXPERT.................................................................. 125
EXPERT OPINIONS (side-by-side) ........................................................ 126
TAKAYAMA v. KAISER, 82 Haw. 486, 923 P.2d 903 (1996) ................. 128
BACHRAN v. MORISHIGE 52 Haw. 61, 469 P.2d 808 (1970) ................ 129
TABIEROS v. CLARK, 85 Haw. 336, 944 P.2d 1279 (1997) .................. 130
DAUBERT v. MERRELL DOW PHARMACEUTICALS, 509 U.S. 579 (1993)........ 136
STATE v. MONTALBO, 73 Haw. 130, 828 P.2d 1274 ........................... 138

GENERAL ELECTRIC COMPANY v. JOINER 118 S.Ct. 512 (1997) ..... 141
STATE v. BATANGAN, 71 Haw. 552, 799 P.2d 48 (1990) .................... 142
STATE v. CABABAG, 9 Haw.App. 496, 850 P.2d 716 (1993)................. 146
STATE v. CASTRO 69 Haw. 633, 756 P.2d 1033 (1988) ....................... 149
STATE v. FUKUSAKU, 85 Haw. 462, 946 P.2d 32 (1997) ...................... 151
KUMHO TIRE COMPANY v. CARMICHAEL, 119 S.Ct. 1167 (1999) .... 153
STATE v. VLIET, 95 Haw. 94, 19 P.3d 42 (2001) ................................. 157
STATE v. WALLACE, 80 Hawai`i 382, 910 P.2d 695 (1996) ................. 160
STATE v. MANEWA, 115 Hawai'i 343, 167 P.3d 336 (2007) ................. 164
STATE v. ASSAYE, 216 P.3d 1227 (2009) ............................................. 169
STATE v. FITZWATER, 122 Hawai‗i 354, 227 P.3d 520 (2010).............. 174

Professor John Barkai, U.H. Law School - Evidence                                        Page - iv
OPINIONS AND EXPERT TESTIMONY PROBLEMS (TRUE/FALSE) ... 180
EXPERT WITNESS PROBLEMS - TRANSCRIPT.................................. 181

PRIVILEGES .......................................................................................... 182
SWIDLER & BERLIN & HAMILTON v. U.S. ............................................ 183
TRAMMEL v. UNITED STATES, 445 U.S. 40 (1980) ............................. 185
UPJOHN COMPANY v. U.S., 449 U.S. 383; 101 S.Ct. 677 (1981)......... 188
STATE v. LEVI 67 Haw. 247, 686 P.2d 9 (1984) HRE 505 ................... 191
STATE v.CULKIN, 97 Hawaii 206, 35 P.3d 233 (2001) HRE 513 ........... 192
STATE v. PESETI, 101 Haw. 172, 65 P.3d 119 (2003) ......................... 196
STATE v. PADEKEN, Unpublished opinion, 121 Hawai'i 541 ............................. 198
PRIVILEGE PROBLEMS ........................................................................ 201

PRESUMPTIONS .................................................................................. 205
PRESUMPTION PROBLEMS ................................................................. 206

JUDICIAL NOTICE ................................................................................. 209
STATE v. LORENZO, 77 Haw. 219, 883 P.2d 641 (1994) ...................... 210
STATE v. VALLEJO, 9 Haw.App. 73, 823 P.2d 154 (1992) .................... 212
JUDICIAL NOTICE PROBLEMS............................................................. 215

CONFRONTATION & HEARSAY ........................................................... 217
CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004) ............................ 218
DAVIS & HAMMON cases, see Emanuel's
STATE v. KONOHIA, 106 Haw. 517, 107 P.3d 1190 (2005) ................... 228
STATE v. GRACE, 107 Hawai'i 133, 111 P.3d 28 (2005) ....................... 230
STATE v. MARSHALL, 114 Hawai'i 396, 163 P.3d 199 (ICA)(2007) ................ 233
STATE v. MARSHALL, 117 Hawai'i 234, 177 P.3d 1278 (2007) ............. 236
STATE V. DELOS SANTOS, 124 Hawai'i 130, 238 P.3d 162, (2010)) .......... 238
GILES v. CALIFORNIA, 554 U.S. 353 (2008) ......................................... 242
MELENDEZ-DIAZ v. MASS. 129 S.Ct. 2527 (2009) .................................... 244
BRISCOE v. VIRGINIA, 130 S.Ct. 1316 (2010) ..................................... 258
MICHIGAN v. BRYANT 131 S. Ct 1143 (2011) ....................................... 261
BULLCOMING V. NEW MEXICO 131 S.Ct. 2705 (2011) ....................... 265




Professor John Barkai, U.H. Law School - Evidence                                               Page - v
                          HEARSAY




Professor John Barkai, U.H. Law School - Evidence   Page - vi
HEARSAY
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
    (1) Nonverbal conduct as hearsay. Testimony about a person's out-of-court nonverbal conduct can
constitute hearsay, but only if the conduct was intended as an assertion.
        Example—Hearsay. Testimony that a person pointed to a particular vehicle when asked to
        locate the source of drugs was assertive conduct and hearsay under Rule 801(a)(2). United
        States v. Caro, 569 F.2d 411, 416 n. 9 (5th Cir.1978).
        Example—Nonhearsay. "Appellants contend that testimony concerning drug sales * *
        made by Ambriz prior to the existence of any conspiracy between him and appellants was
        inadmissible hearsay. As to the earlier drug sales, we note that Ambriz by his nonverbal
        conduct in consummating the transactions clearly did not intend an assertion. Accordingly
        evidence of the prior sales was not hearsay * * *." United States v. Astorga-Torres, 682
        F.2d 1331, 1335 (9th Cir.1982), cert. denied, 459 U.S. 1040, 103 S.Ct. 455, 74 L.Ed.2d 608
        (1982).
        Example—Nonhearsay. Evidence that U.S. mining inspector ate his lunch in area alleged to
        have been unsafe, and that other inspectors who observed area issued no citations,
        nonhearsay as evidence of safety. Boggs v. Blue Diamond Coal Co., 497 F.Supp. 1105
        (E.D.Ky.1980) unpublished decision cited in United States v. Zenni, 492 F.Supp. 464, 468 n. 18
        (E.D.Ky.1980).
     (2) Matter implied by utterance. The hearsay rule is not violated if an out-of-court utterance is
offered to prove a matter implied by, but not asserted in, the utterance.
        Example—Nonhearsay. In a prosecution for illegal bookmaking, it was not hearsay for
        government agents to testify that while searching defendant's premises pursuant to warrant,
        agents answered the telephone several times, and unknown callers stated directions for
        placing bets on sporting events. United States v. Zenni, 492 F.Supp. 464 (E.D.Ky.1980).
        Example—Nonhearsay. In drug prosecution, it was not hearsay for officer to testify that
        unidentified caller to defendant's "beeper" asked, "Did you get the stuff?" and "Where is Dog
        [codefendant's nickname]?" United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.1990).
    Example—Nonhearsay. "The question, 'Is this Kenny?' cannot reasonably be construed to be an
    intended assertion, express or implied. * [lit might be possible to imply that the declarant believed Mr.
    Jackson was in possession of the pager and therefore he was the person responding by telephone to
    the declarant's message. The mere fact, however, that the declarant conveyed a message with her
    question does not make the question hearsay. * * Rather, the important question is whether an
    assertion was intended. We find it hard to believe in this case that the declarant intended to assert that
    Mr. Jackson was in possession of the pager and that he was responding to her call." United States v.
    Jackson, 88 F.3d 845, 848 (10th Cir.1996).
    Example—Nonhearsay. "The assertion Herlinda made was that Mara would not come home as long
    as the police were there. The statement was offered to prove that Ybarra lived at the house. Whether
    Ybarra would come home and, if not, why not, was not at issue in the trial. Therefore, the statement was
    not offered to prove the truth of the matter asserted and, by definition, was not hearsay." United States
    v. Ybarra, 70 F.3d 362, 366 (5th Cir.1995), cert. denied, 517 U.S. 1174, 116 S.Ct. 1582, 134 L.Ed.2d
    679 (1996).
    Example--Nonhearsay. "We have doubts, however, that the declaration in question—the handwritten
    words 'Date of RPT: 12131101'—constitutes a 'statement' under the hearsay rule. * * * White stated
    that the purpose of the HPL Create Sheet is to request information about a claim from the data
    processing department. In this sense, the information on the HPL Create Sheet is more in the nature
    of an inquiry than an assertion. Courts have held that questions and inquiries are generally not hearsay
    because the declarant does not have the requisite assertive intent, even if the question 'convey[S] an
    implicit message' or provides information about the declarant's assumptions or beliefs." Lexington Ins.
    Co. v. Western Pennsylvania Hosp., 423 F.3d 318, 329 (3d Cir.2005).



Professor John Barkai, U.H. Law School - Evidence                                                    Page - 1
     Nonhearsay statements. An out-of-court statement is not inadmissible as hearsay if it has relevancy
     apart from the truth of the matter that it asserts or implies. If the making of the statement is in itself
     relevant, evidence that the statement was made is not barred by the hearsay rule.
     Example—Admissible. A statement offered to show the reason for an investigation. Suggs v. Stanley,
     324 F.3d 672, 681-82 (8th Cir.2003) ("The district court also instructed the jury that the statements were
     to be used only to show why the officer went to Gilbert's house, not to prove that anything stated by the
     dispatcher or the caller were true."); United States v. Aguwa, 123 F.3d 418, 421 (6th Cir.1997); United
     States v. Mejia, 909 F.2d 242, 247 (7th Cir.1990) ("Evidence about the tip the DEA received was
     relevant to show something other than the tip's truth. That evidence was relevant to show why the DEA
     was watching Mejia's home, a fact that in no way depended upon the tip's truth.").
     Example—Inadmissible. "In this case, the 'background' evidence offered by Detective Hamilton was
     entirely unnecessary to explain the context of the police investigation of Hinson. The reason the police
     focused their investigation on Hinson was perfectly clear: After arresting Pingry, he told the police that
     Hinson was his supplier. The government offered ample admissible evidence to show that this
     conversation took place, and Detective Nicholson's testimony that she had heard that someone named
     'Kevin' was Pingry's supplier was, therefore, completely unnecessary to explain the police's subsequent
     actions.
    Nonhearsay statements—Verbal acts. One common type of nonhearsay statement is usually referred to
as a "verbal act" or "operative fact": a statement the making of which has substantive legal significance.
         Example. The words that constitute the offer, acceptance, or terms of a contract. West Coast Truck
         Lines, Inc. v. Arcata Community Recycling, Inc., 846 F.2d 1239, 1246 n. 5 (9th Cir.1988), cert.
         denied, 488 U.S. 856, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988).
         Example. A certificate of insurance issued by the FDIC, as evidence of "the fact of the legal
         relationship of insurer and insured." United States v. Bellucci, 995 F.2d 157, 161 (9th Cir.1993),
         cert. denied, 512 U.S. 1225, 114 S.Ct. 2719, 129 L.Ed.2d 844 (1994).
         Example. A certificate of consent executed pursuant to a statute by the government of Panama, to
         prove that Panama had consented to the search of a Panamanian vessel by U.S. officials.
         United States v. Rojas, 53 F.3d 1212, 1216 (11th Cir.1995), cert. denied, 516 U.S. 976, 116 S.Ct.
         478, 133 L.Ed.2d 407 (1995).
         Example. Words that operate as a conveyance. Hanson v. Johnson, 161 Minn. 229, 201 N.W. 322
         (1924) (words constituting a partition of crops between landlord and tenant farmer).
        Example. Tape recorded conversations of illegal gambling. United States v. Boyd, 566 F.2d 929,
        937 (5th Cir.1978).
    Nonhearsay statements—Machine generated data. Raw data generated by machines are not
normally "statements" subject to the hearsay rule or the Confrontation Clause. United States v. Lamons,
532 F.3d 1251, 1264 (11th Cir. 2008), cert. denied, U.S. ___, 129 S.Ct. 524, 172 L.Ed.2d 384 (2008).
       Example—Admissible. "In the case before us, the 'statements' in question are alleged to be the
       assertions that Washington's blood sample contained PCP and alcohol. But those statements were never
       made by the technicians who tested the blood. The most the technicians could have said was that the
       printed data from their chromatograph machines showed that the blood contained PCP and alcohol.
       The machine printout is the only source of the statement, and no person viewed a blood sample and
       concluded that it contained PCP and alcohol. Yet, the very same data that would have permitted the
       lab technicians to say that the blood contained PCP and alcohol were also seen and interpreted by Dr.
       Levine. Moreover, those data were the only basis upon which Dr. Levine stated in court that the blood
       sample contained PCP and alcohol. In short, the inculpating `statement'—that Washington's blood
       sample contained PCP and alcohol—was made by the machine on printed sheets, which were given
       to Dr. Levine. The technicians could neither have affirmed or denied independently that the blood
       contained PCP and alcohol because all the technicians could do was to refer to the raw data printed
       out by the machine. Thus, the statements to which Dr. Levine testified in court—the blood sample
       contained PCP and alcohol—did not come from the out-of-court technicians, and so there was no
       violation of the Confrontation Clause." United States v. Washington, 498 F.3d 225, 230 (4th Cir.2007).



Professor John Barkai, U.H. Law School - Evidence                                                            Page - 2
                        HEARSAY HYPOTHETICALS
                               Are the following statements hearsay?


1. Auto accident. In court, plaintiff's witness testifies, "The red car drove through the red light."

2. Same case. Cop testifies, "When I got to the accident scene, an eyewitness told me the red car
   ran the red light."

3. Same. Cop testifies "When I got to the accident scene, an eyewitness told me the red car was
   at fault."

4. Same. Cop testifies "I got the eyewitness to write out what he saw. Here's the written
   statement." Is the written statement hearsay?

5. Same. What the eyewitness wrote was notarized by a priest, who was passing by at the time of
   the accident. Is the notarized statement hearsay?

6. Same. Eyewitness testifies "I told the cop at the scene that the red car ran the light."

7. Same. Cop testifies "At the scene, I asked the crowd who ran the light, and a tall guy pointed to
   the Defendant."

8. Eyewitness #2 testifies that the red car had a green light. D then offers eyewitness' prior written
   statement to cop, written during the post-accident investigation, that the red car had the red
   light. Is the written statement hearsay? Admissible?

9. Treason prosecution. Prison guard testifies that "Yesterday Lord Cobham told me that he and
   Sir Walter Raleigh were planning to cut the throat of the soon-to-be king."

10. Testimony that a tracker dog went from the dropped glove to O.J. and wagged its tail.

11. Contract action. P claims D said "I accept your offer."

12. Defamation action. P claims that D said, "P is a lying pig."

13. Prostitution case. Cop testifies that defendant said "Want to have sex for money?" "Asobi
       masho ka?" [translated 'Would you like to play?']

14. D has P's car. Issue: Did P give or loan her car to D? P testifies that she told the defendant that
       "You can borrow my car for a week."

15. Negligence case. Auto accident. P, driver of car # 1, is injured. Is mechanic's statement to

Professor John Barkai, U.H. Law School - Evidence                                              Page - 3
       driver # 2 (D), "Your brakes are bad," made before the accident, admissible?

16. A passenger in D's car was hurt in accident and sues. Can D introduce his own statement,
       which he made to the passenger, to show that the passenger assumed the risk of riding with
       D? The statement was, "I have to get these brakes fixed"

17. Will contest. A witness testifies that 5 months before he died, the deceased said "My son Larry
       is a no good spendthrift bum." Larry objects. Is that hearsay?

18. Criminal insanity defense to a murder prosecution. W testifies that before the crime, the
       defendant said, "I am the Pope and I am on a mission from God."

19. What if the defendant said "I think I am the Pope."

20. On the issue of whether P was suffering from a heart condition, evidence that P's doctor
       transferred P to the cardiac ward of the hospital.

21. During a post-robbery investigation, a cop describes to a suspect (later the Defendant) what the
       criminal was wearing during the crime. D says to his wife, "I don't have any clothes like
       that do I honey?" Wife faints. Is the fainting hearsay?

22. Same case, but during the investigation, the cop asks the wife, "What was your husband
       wearing yesterday?" Wife hands cop a shirt. Is handing the shirt hearsay?

23. Prosecution for illegal bookmaking. While raiding the house, FBI agents answer the phone and
       hear "Give me U.H. this weekend for $50."

24. Prosecution for reckless driving. When the police stopped the car, a passenger was overheard
       by the police to say, "I would never ride with him again."

25. Bob is charged with battery. Witness will testify that the victim called out, "Bob, let me go."

26. If you are using conduct or implied assertions as circumstantial evidence of a person's belief,
        and you are trying to prove the truth of that belief, is it hearsay?




Professor John Barkai, U.H. Law School - Evidence                                           Page - 4
STATE v. FELICIANO, 2 Haw.App. 633, 638 P.2d 866 (1982)

    Appellant raises two paramount issues on appeal: (1) whether the trial court erred in admitting, over his
hearsay objection, a police officer's testimony recounting a neighbor's statement to him prior to the officer's
issuance of an all-points bulletin (APB) that resulted in the arrest of the appellant... For the reasons stated
herein, we affirm the conviction.
    In the trial of the case, Police Officer Ferry was permitted to testify over defendant's objection to the
following: that on January 25, 1977, at approximately 12:05 p.m., Mrs. Powell reported a burglary at her
neighbor's house on Wanaao Road in Kailua; that when he arrived on the scene, Mrs. Powell told him that
she had heard a car's motor running out front and observed a beige Toyota with four local males inside, one
of whom she described as very, very large; that when she went outside, she saw two local males carrying
a television set out of her neighbor's home, prompting her to yell at them; that, thereupon, the set was
dropped, and the men jumped into the car and left the scene; and that she managed to get the license plate
number of the beige Toyota and gave it to him, whereupon he issued an APB on the vehicle. Mrs. Powell
did not testify.
    Later on the same day, the vehicle was located by other officers about a mile from the scene in a
driveway at 690 Keolu Drive, which was the home of one Richard Moniz. Several officers entered the home
on Keolu Drive to effect the arrest. Officer Makiya, the arresting officer, heard a "ruckus" out back but
decided to check the interior of the house instead. Upon seeing a closet door ajar in one of the bedrooms,
he looked inside and found the appellant standing behind the clothing hanging inside. Appellant was
arrested and charged with burglary.
    In this appeal, Rapozo argues that the court erroneously admitted Officer Ferry's hearsay testimony. At
trial, when queried by the court as to the use of the testimony, the prosecuting attorney responded,
MISS ALEXANDER: I'll offer it for state of mind, Your Honor.
THE COURT: State of mind? Objection overruled. Just that a statement was made.
    It is clear that the testimony objected to would be hearsay if offered to prove the truth of the statements
made. The question is whether the court properly admitted the testimony under any of the hearsay rule's
innumerable exceptions. At trial the prosecutor urged the court to apply the state of mind exception to the
testimony. Texeira v. Texeira, 37 Haw. 64 (1945). The court seemed to question the applicability of that
exception yet chose to admit the testimony. The state of mind exception, by definition, focuses on the
sensory impressions of the declarant where those impressions are relevant to an issue in the case. Both
parties agree that the state of mind of Mrs. Powell is not a relevant issue in this case. The State, on appeal,
argues that the testimony was offered to establish Officer Ferry's state of mind at the time he issued the APB.
 We question the relevance of his state of mind to any issue in this case.
    However, there is a line of authority recently adopted by our supreme court which permits the court to
admit extrajudicial statements offered to explain an officer's conduct during the investigation procedures
leading up to the arrest of the defendant, but not for their truth. See State v. Perez, 63
Haw. ---, --- P.2d ---- (1981). ...
    In the Perez case, an anonymous phone caller identified Perez as the "raper" and the police officers
placed his photo in the photographic lineup viewed by the victim. She subsequently identified him at the
lineup and at trial as the person who raped her. The court permitted the out-of-court statements offered to
explain the subsequent actions of the police officers and later specifically instructed the jury that they were
limited to that purpose. * * *
    In this case, although the prosecutrix rather inartfully expressed it as "state of mind," it is clear that the
purpose of the testimony was not to prove the truth of what Mrs. Powell said, but to establish the basis for the
officer's subsequent actions. Furthermore, there was no incrimination of the appellant in Mrs. Powell's
account of the events.
                                                        ***
    Accordingly, we find no error in the admission of Officer Ferry's testimony. Moreover, even had the
evidence objected to been admitted erroneously, it was harmless beyond a reasonable doubt.



Professor John Barkai, U.H. Law School - Evidence                                                       Page - 5
STATE v. CONNALLY, 79 Hawai'i 123, 899 P.2d 406 (1995)                                             Hearsay

     Defendant-Appellant Sue Ann Connally (Defendant) appeals from the judgment of the district court
finding her guilty of prostitution.... [FN1] She contends that: ... (2) the court improperly admitted into
evidence hearsay testimony by the arresting police officer....
     FN1. Hawai'i Revised Statutes s 712-1200 (Supp.1992) provides in relevant part: (1) A person
commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct
with another person for a fee. In this case, Defendant was specifically charged with "offer[ing] to engage
in sexual conduct with another person, in return for a fee." Transcript 7/1/92, at 5.
     For the reasons set forth below, we affirm the district court's judgment.
                                             I. BACKGROUND
     On the evening of April 17, 1992, Honolulu police officer Rick Orton (Officer Orton) was assigned to
plainclothes duty in Waikiki to "enforce morals violations." While monitoring activities on Kalakaua
Avenue, Officer Orton observed Defendant "walking back and forth on the Mauka sidewalk of Kalakaua
[Avenue], approaching Japanese tourists as they passed by and attempting to talk to them or stop them."

     Officer Orton then followed Defendant, who struck up a conversation with three Japanese males,
allegedly tourists from Japan. From a distance of about two feet, Officer Orton heard Defendant say, in
Japanese, "Asobi masho ka?" which the officer testified is literally interpreted as, "Would you like to
play?" but is also a "street term or vernacular used to solicit or imply sexual activities." The men looked
at Defendant but continued walking, whereupon Defendant said to them, "Hyaku doru Aru?" meaning,
"[D]o you have a hundred dollars?" One of the men turned and responded, "Arimasu," which means, "I
have." Defendant then replied, "Issho niku, issho niku masho [sic]," [FN3] which, according to Officer
Orton, is the street translation for, "[W]e'll go together, let's go."

      FN3. Defendant's reply probably was, "Issho ni iku, issho ni iku mashoo," a colloquial form of "Issho
ni ikimashoo," which means, "Let's go together." N. Inamoto, Colloquial Japanese 169 (1972).

     At that point, Officer Orton approached Defendant, identified himself as a police officer, and placed
her under arrest for prostitution. While pointing at Defendant, Officer Orton then asked the three men, in
Japanese, whether they knew Defendant. The men replied, "Shiranai, shiranai," which means, "I don't
know," and walked away.
     Officer Orton further testified that he considered himself fluent in conversational Japanese because he
had previously studied the Japanese language and had lived in Japan for two years.
     At trial, Defendant's attorney objected to the officer's testimony regarding the conversation between
Defendant and the Japanese men, on the ground that the statements overheard by the officer constituted
inadmissible hearsay. The prosecutor maintained that the statements were admissible as present sense
impressions, one of the recognized exceptions to the hearsay rule. The court overruled the objection and
allowed the testimony but did not express a clear basis for its ruling.
     Defendant testified that she was not conversant in Japanese and did not know what "Asobi masho ka?"
meant. She admitted that she worked for an escort service but denied that she had ever offered sex for a fee.

     The district court thereafter found Defendant guilty of prostitution. This timely appeal followed.
                                                      ***
     [1] Defendant next contends that the trial court's admission of Officer Orton's testimony regarding the
statements made by Defendant and the Japanese males: (1) violated her constitutional right to confront the
witnesses against her, as provided in article I, section 14 of the Hawai'i Constitution and (2) was improper


Professor John Barkai, U.H. Law School - Evidence                                                    Page - 6
because the prosecutor failed to establish the requisite foundation for the "present sense impression"
exception to the hearsay rule. We find it unnecessary to address these arguments, for we are of the opinion
that the statements in question were "verbal acts" or "operative facts" offered as evidence of Defendant's
offer to engage in sexual conduct with another person in exchange for a fee--the basis of the offense
charged. As such, the statements were not offered to prove the truth of the matter asserted, i.e., that
Defendant would actually perform sex acts for money. Thus, the statements were not hearsay and lay
outside the purview of the hearsay rule.

     In State v. Iwasaki, 59 Haw. 401, 581 P.2d 1171 (1978) (per curiam), the Hawai'i Supreme Court
examined the issue of whether undercover police officers' testimony as to the statements of two alleged
prostitutes was admissible as evidence against the defendant, who was on trial for promoting or profiting
from prostitution. The officers testified, over the objection of the defendant, that the prostitutes had asked
the officers to remove their clothing in order to engage in sexual intercourse.
     [2] The supreme court observed that the statements were "made by participants during the course of
events, and ... were part of the transaction constituting the alleged violation." Id. at 403, 581 P.2d at 1172.
 As such, the court held, the statements attributed to the prostitutes constituted "verbal acts serving to
illuminate or to explain the nature of the activity in which the women and the defendant were engaged" and
thus were admissible under the rule of res gestae. [FN5] Id. (emphasis added).

      FN5. The term "res gestae " has been traditionally applied in two situations. First, as in the present
case, it is used to explain the admissibility of statements that do not constitute hearsay. Second, it is used
to justify the admissibility of statements that fall under one of the following four exceptions to the hearsay
rule: (1) present sense impressions, (2) excited utterances, (3) statements of present bodily condition, and
(4) statements of present mental states and emotions. 2 C. McCormick, McCormick on Evidence s 268 (J.
Strong ed., 4th ed. 1992). However, "[c]ommentators and, with ever greater frequency, courts have
criticized the use of the phrase res gestae " for its vagueness, imprecision, and limited application. Id.
McCormick notes that although, historically, the phrase has served its purpose, "the law has now reached
a stage where expanding admissibility will be best accomplished by other means." Id. Accordingly, we
refrain from employing the term "res gestae " in our present discussion.
      Other jurisdictions have applied similar rules in prostitution cases....
      This court has previously held that, in general, statements demonstrating formation of a contract are
verbal acts possessing independent legal significance and thus fall outside the hearsay category. Island
Directory Co. v. Iva's Kinimaka Enters., Inc., 10 Haw.App. 15, 21-22, 859 P.2d 935, 939- 40 (1993). The
same principle applies to prostitution cases, where statements of solicitation by alleged prostitutes are
offered as evidence against the defendant. Clearly, in the present case, Officer Orton's testimony was not
being offered to prove the truth of the fact asserted: that the declarants actually intended to carry out the
exchange of sexual activity for money. Rather, the statements were evidence of verbal acts demonstrating
that Defendant made the requisite offer as defined in the prostitution statute. Thus, Officer Orton's
testimony as to the statements made by Defendant and the Japanese males was not hearsay and was
properly admitted into evidence.

     ... the police officer's testimony concerning extrajudicial statements made by Defendant and the
Japanese males was properly admitted as verbal acts or operative facts and thus fell outside the category of
hearsay. Accordingly, we affirm Defendant's conviction.




Professor John Barkai, U.H. Law School - Evidence                                                     Page - 7
                                                    HEARSAY - PRIOR STATEMENTS HRE 802.1
                      HAWAII - Hearsay Exception                                                         FEDERAL - Not Hearsay
 RULE 802.1 HEARSAY EXCEPTION; PRIOR STATEMENTS                                 RULE 801. DEFINITIONS
 BY WITNESSES.                                                                       The following definitions apply under this article:
      The following statements previously made by witnesses who testify              (d) Statements which are not hearsay. A statement is not hearsay
 at the trial or hearing are not excluded by the hearsay rule:                  if--
      (1) Inconsistent statement. The declarant is subject to                        (1) Prior statement by witness. The declarant testifies at the trial or
 cross-examination concerning the SUBJECT MATTER of the declarant's             hearing and is subject to cross-examination CONCERNING THE
 statement, the statement is inconsistent with the declarant's testimony, the   STATEMENT, and the statement is
 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,        (A) inconsistent with the declarant's testimony, and was given under oath
 hearing, or other proceeding, or in a deposition; or                           subject to the penalty of perjury at a trial, hearing, or other proceeding, or
      (B) Reduced to writing and signed or otherwise adopted or approved        in a deposition, or
 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                     (B) consistent with the declarant's testimony and is offered to rebut an
 cross-examination concerning the subject matter of the declarant's             express or implied charge against the declarant of recent fabrication or
 statement, the statement is consistent with the declarant's testimony, and     improper influence or motive, or
 the statement is offered in compliance with rule 613(c);
      (3) Prior identification. The declarant is subject to                     (C) one of identification of a person made after perceiving the person;
 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)

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 California 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 - 8
STATE v. ILDEFONSO, 72 Haw. 573, 827 P.2d 648 (1992)
                                                HRE 802.1(3)
   Defendant-appellant Julius H. Ildefonso (Ildefonso) appeals his conviction of failing to stop at an
intersection as required by law, a violation of Hawaii Revised Statutes (HRS) s 291C-63(b). On appeal,
Ildefonso contends that his conviction should be reversed on the grounds that: 1) the State's sole witness,
the citing police officer, failed to identify Ildefonso in court as the person who failed to stop at the
intersection; ... On review, we find no error and therefore affirm the conviction.
                                                         I.
   On June 17, 1989, police officer David Lock (Officer Lock) was driving on South King Street. As
Officer Lock neared the intersection of South King Street and Cooke Street, he observed a vehicle turn
right onto South King Street from Cooke Street without making a complete stop. Officer Lock turned on
his blue light and pulled the vehicle to the side of the roadway. He obtained the driver's license of the driver
of the vehicle, determined that the driver was Ildefonso, and issued him a citation for failing to stop at the
intersection.
   At trial, prior to Officer Lock's testimony, Ildefonso's counsel requested a "gallery," or in-court
identification. Officer Lock was asked if he could identify Ildefonso, who was not present at counsel's
table, but who was seated elsewhere in the courtroom. Lock pointed to a person in the courtroom; however,
that person was not Ildefonso. The court then stated, "[w]ill the real Mr. Ildefonso identify himself? ... You
can step forward, Mr. Ildefonso," at which point, Ildefonso came forward.
   The State then proceeded to examine Officer Lock regarding the events of June 17, including Lock's
prior identification of Ildefonso. Officer Lock testified that at the time of the incident, he obtained the
driver's license of the driver of the vehicle in question and compared the picture on the license to the face
of the driver. Finding a match, he wrote the name on the license (Julius H. Ildefonso) on the citation.
Officer *Lock also testified that 1) the intersection where the violation occurred was within the Honolulu
District, City and County of Honolulu, State of Hawaii; 2) there were no vehicles in front of or behind
Ildefonso's vehicle at the intersection; 3) a City and County red and white stop sign was posted at that
intersection; and 4) a City and County solid white stop line was painted halfway across Cooke Street "in
line with the stop sign."
   The State then rested its case and Ildefonso moved for judgment of acquittal on three grounds: 1) that
Officer Lock, on cross examination, admitted that he failed to identify Ildefonso in court; 2) that
Ildefonso's right against self- incrimination was violated when the court ordered him to step forward after
the gallery identification procedure was completed; and 3) that the prosecution was barred by the statute
of limitations. The court denied the motion. At that point, Ildefonso's counsel elected not to put on a
defense, rested, and again moved for judgment of acquittal on the same grounds. The court again denied
the motion. Ildefonso was found guilty of failing to stop pursuant to HRS s 291C-63(b) and this timely
appeal followed.

                                                       II.
   [1][2] Ildefonso appears to challenge different aspects of the sufficiency of evidence presented against
him with respect to 1) identification; 2) "legal authority" for the stop sign in question; and 3) venue. On
appeal, the test to determine the sufficiency of the evidence is whether, viewing the evidence in the light
most favorable to the State, there is substantial evidence to support the conclusion of the trier of fact. State
v. Yoshimoto, 64 Haw. 1, 635 P.2d 560 (1981); State v. Tamura, 63 Haw. 636, 633 P.2d 1115 (1981). "It
matters not if a conviction under the evidence as so considered might be deemed to be against the weight
of the evidence so long as there is substantial evidence tending to support the requisite findings for the
conviction." Tamura, 63 Haw. at 637, 633 P.2d at 1117. " 'Substantial evidence' ... is credible evidence
which is of sufficient quality and probative value to enable a man of reasonable caution to reach a

Professor John Barkai, U.H. Law School - Evidence                                                      Page - 9
conclusion." State v. Naeole, 62 Haw. 563, 565, 617 P.2d 820, 823 (1980).
    Ildefonso claims that the "trial court erred in denying [his] motion for judgment of acquittal
notwithstanding [the State's] use of prior identification." Although his opening brief is somewhat
confusing, Ildefonso appears to argue that because Officer Lock failed to identify him in court, testimony
of the prior identification should not have been admitted.
    [3][4][5] There is a split of authority as to whether testimony of a prior identification is admissible
where the identifying witness fails to make an in- court identification. See 29 Am.Jur.2d Evidence ss 372,
373 (1967). Although not specifically contended by Ildefonso, the most frequent objection to this evidence
is that it is hearsay because it is offered by a third party for the truth of the matter asserted. Here, Officer
Lock's prior identification is an out-of-court statement offered to prove that Ildefonso was the driver of the
vehicle in question. Hence, it is hearsay. See Hawaii Rules of Evidence (HRE) 801. The State contends,
however, that the evidence is admissible under the exception found in HRE 802.1(3), which provides: The
following statements previously made by witnesses who testify at the trial or hearing are not excluded by
the hearsay rule:
                                                 * * * * * *
    (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.] [FN2]

    FN2. Prior to a gender change, this subsection read, "the statement is one of identification of a person
made after perceiving him." (Emphasis added.) The subsection was amended to read, "the statement is one
of identification of a person made after perceiving the declarant." (Emphasis added.) As noted in Bowman,
Hawaii Rules of Evidence Manual, Hearsay s 802.1-2C (1990), this new version is mistaken and
nonsensical. Compare Federal Rules of Evidence 801(d)(1)(C), which underwent a correct gender change.

    In State v. Motta, 66 Haw. 254, 659 P.2d 745 (1983), we discussed HRE 802.1(3) and the various
rationales for admitting pretrial identification evidence. In Motta, the defendant appealed his conviction
for robbery in the first degree. Notwithstanding the fact that the victim identified the defendant at trial, one
of the contended errors was the admission into evidence of a police composite sketch of the robbery suspect.
 The composite sketch was drawn by a police artist based on a description given by the victim. In
concluding that there was no error in admitting the sketch into evidence, this court held: Although a
composite sketch is hearsay, it may still be admissible under Haw.R.Evid. 802.1(3) if (1) the declarant
testifies at trial and is subject to cross-examination concerning the subject matter of his statement and (2)
the statement is one of identification of a person made after perceiving him. Id. at 262, 659 P.2d at 751.
    While Motta is factually distinguishable from the present case, it is instructive to the extent that we held
HRE 802.1(3) "allow[ed] the admission of pretrial identifications, not merely as corroborative evidence,
but also as substantive proof of identity." Id.
    Other courts have admitted as substantive proof of identity prior identification testimony by witnesses
who were unable to make in-court identifications. For example, in State v. Hendrix, 50 Wash.App. 510,
749 P.2d 210 (1988), the witness in a public indecency case was unable to identify the defendant at trial.
The Washington Court of Appeals held that a prior identification from a photo montage was admissible
despite the defendant's contention that the identification photograph was suggestive because it did not have
a "very small little, tiny number" in the upper left corner, which the other photos in the montage had. The
court held that any inconsistency in the identification testimony went only to its weight, not its
admissibility. The Hendrix court also held that the extrajudicial or prior identification, standing alone, was
sufficient to support the conviction.
    In United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), John Foster, a
correctional counselor at a federal prison, was attacked and brutally beaten about the head with a metal pipe.
 At one point during his hospitalization, Foster named defendant Owens as his attacker and identified

Professor John Barkai, U.H. Law School - Evidence                                                     Page - 10
Owens from an array of photographs. However, at the time of trial, Foster could not remember who had
assaulted him due to the injuries he received in the attack, which included short-term memory loss. Foster,
however, testified that he clearly remembered identifying Owens as his attacker while he was hospitalized,
but could not recall the basis for that identification. The United States Supreme Court held that Federal
Rule of Evidence 802, which generally excludes hearsay, was not violated by admission of Foster's prior
out-of-court identification statement. The Court held that the prior identification was admissible as long
as the declarant was subject to cross- examination concerning the statement itself, regardless of whether the
declarant could recall the basis for that statement.
    Even in cases where prior identifications were deemed to be inadmissible, courts have agreed that such
testimony would be admissible as independent proof of identity if certain foundational or procedural
requirements were met. For example, in J.A.M. v. State, 749 P.2d 116 (Okla.Crim.App.1988), the
Oklahoma Court of Criminal Appeals held that permitting the robbery victim to testify about his prior
identification of the defendant was reversible error where the victim was not first asked to make an in-court
identification. The court concluded that the State failed to show that the victim could not identify the
defendant at trial and thus failed to "establish the necessary predicate for admitting the extrajudicial
identification as independent proof of identity." Id. at 118.
    In Commonwealth v. Floyd, 327 Pa.Super. 569, 476 A.2d 414 (1984), the witness to a shooting who had
identified the defendant from an array of photographs, failed to identify the defendant at trial. The witness,
however, was not examined regarding the photographic array. That evidence was admitted via the
testimony of the detective to whom the witness had made the identification. The Pennsylvania Superior
Court stated: In our view, a prior statement of identification made by a witness who does not make an
in-court identification at trial qualifies for exception to the hearsay rule only if (1) the out-of-court
identification was freshly made, and (2) the witness who made it takes the stand and vouches for its
accuracy.... (In addition, when offered against defendant in a criminal case, the witness must be subject to
adequate cross-examination in order to satisfy defendant's constitutional right to confront the witness
against him.) Id. at 577, 476 A.2d at 418 (citation omitted). The court held that while the foundational
requirement of freshness had been satisfied because the witness made the identification the day after the
shooting, the witness was not asked to vouch for its accuracy. Thus, the second foundational requirement
for the exception to the hearsay rule was not met.
    In the present case, Officer Lock testified that he obtained the driver's license of the motorist he detained
for failing to stop at the South King Street-Cooke Street intersection and compared the picture on the
license to the face of the driver of the vehicle. Finding a match, he wrote the name on the license, Julius
H. Ildefonso, on the citation that he issued. We conclude that this procedure constituted Officer Lock's
prior identification. Officer Lock then testified at trial regarding the circumstances of his prior
identification, vouched for its accuracy, and was available for cross- examination by defendant. Thus, we
find that the requirements of HRE 802.1(3) were met and the prior identification evidence was properly
admitted as substantive proof of identity.
...
    Based on the foregoing, we hold that the State adequately proved Ildefonso's identity at trial and that
Ildefonso's right to be free from self-incrimination was not violated. The record also established that the
stop sign in question was legally authorized. Accordingly, the judgment is affirmed.




Professor John Barkai, U.H. Law School - Evidence                                                      Page - 11
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook


Rule 803(5). Recorded Recollection (same as HRE 802.1(4))
      (1) "Fresh memory." Rule 803(5)'s requirement that the memorandum or record "have been made or
adopted by the witness when the matter was fresh in his memory" is far less strict than Rule 803(6)'s requirement
of "at or near the time." United States v. Patterson, 678 F.2d 774, 779-80 (9th Cir.1982) (witness's grand jury
testimony reporting conversations with defendant admitted under Rule 803(5) though recorded testimony given "at
least ten months" after the conversations), cert. denied, 459 U.S. 911, 103 S.Ct. 219, 74 L.Ed.2d 174 (1982);
United States v. Williams, 571 F.2d 344, 348 (6th Cir.1978) (memorandum of conversations made six months
afterward), cert. denied, 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978).

      (2) Memorandum not made but adopted by witness. Rule 803(5) extends to a memorandum or record
"adopted" by a witness, such as where the witness orally recounted a matter to another who reduced the account
to a written statement which the witness then verified. United States v. Lewis, 954 F.2d 1386, 1394 (7th
Cir.1992).
      (3) Form of memorandum. A transcript, made by others, of a taped telephone call between the sponsoring
witness and another, qualified under Rule 803(5). United States v. Rommy, 506 F.3d 108, 138-139 (2d Cir.2007),
cert. denied, — U.S. ____, 128 S.Ct. 1681, 170 L.Ed.2d 358 (2008).

Prior Consistent Statements
        Example—Admissible. "In this case, the declarants, Chi and Lian, both testified at trial and were
        subject to cross examination. Liu challenged the credibility of Lian and Chi by presenting evidence that
        the women had received financial assistance from the FBI. Liu implied Lian and Chi fabricated their
        testimony in order to receive financial assistance from the FBI. Agent Barry, the proponent, testified
        about the content of Lian and Chi's statements before the FBI began providing them with financial
        assistance. Lian and Chi's statements, as presented by Agent Barry, were largely consistent with their
        in-court testimony. Accordingly, all four elements are satisfied by Agent Barry's testimony. Rather than
        reversible error, this is a textbook example of when to apply Federal Rule of Evidence 801(d)(1)(B),
        and we conclude the district court did not abuse its discretion when it permitted Agent Barry to testify
        about Lian and Chi's prior consistent statements." United States v. Chang Da Liu, 538 F.3d 1078,
        1086 (9th Cir.2008).
The rule altered the common law only insofar as it grants substantive status; it does not change the
circumstances in which a prior consistent statement is permitted or forbidden. Tome v. United States, 513 U.S.
150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995);




Professor John Barkai, U.H. Law School - Evidence                                                      Page - 12
                           PRIOR STATEMENT PROBLEMS
1. In a slip-and-fall case, the plaintiff calls a witness to testify that moments before the plaintiff slipped in
   a certain area, the ground was full of mud and "muck." On cross examination, Wanda was asked if she
   had stated in a deposition just three weeks after the accident that the surrounding area "looked damp, but
   was actually firm and solid." Is the witness's prior statement admissible? If it is admitted, is it allowed
   as (a) impeachment? (b) for the truth of the matter asserted? (c) both impeachment and substantive
   evidence? or (d) neither impeachment nor substantive evidence?                                 (JB Note: SF)

2. At trial, Lenny is cross-examined about the contents of a briefcase he was carrying two years earlier.
   Lenny responds to plaintiff's counsel by saying, "The briefcase only contained two pairs of socks and
   no classified papers."

   a. If one month prior to trial, Lenny had made a prior inconsistent statement to a friend, Melissa, about
      the contents of the case ("The case had two top secret documents," said Lenny.) Can the statement
      to Melissa be offered for the truth of the matter asserted?

   b. If Lenny had made the prior statement about the briefcase to the police during an interrogation, would
      it be admissible for the truth of the matter asserted?

   c. If the prior inconsistent statement to the friend (a) is elicited on cross-examination, can Lenny testify
      on redirect examination that, "I told my wife, Shari, two years ago that the case contained only two
      pairs of socks and nothing else."

3. The defendant testifies in a civil suit about the accounting books kept by his company, Gilko and
   Associates. On cross-examination Bob is asked whether the figures he quoted were recently created
   "due to the potential multi-million dollar judgment in this lawsuit." On re-direct examination, Bob
   indignantly stated, "Hey, I told my partner more than one year ago, before I had ever heard of this
   lawsuit, that those were the correct figures?'

   a. If Bob's statement is objected to as hearsay, what ruling and why?.

   b. Does it matter whether Bob's prior statement is under oath?

4. Rebecca gave a "7-11" Store cashier a counterfeit $20 bill, and the cashier called the police. When the
   police arrived, the cashier pointed to Rebecca as the person who handed her the counterfeit bill.
   Rebecca was arrested and later prosecuted.

   a. At trial, almost two years later, the cashier testified that she does not remember what the robber
      looked like. The cashier then testifies that she does remember identifying a person as the robber in the
      store just after the robbery. Is the cashier's testimony about this prior identification hearsay? Is it
      admissible?

   b. The day Rebecca was charged with passing a counterfeit bill, a stock boy came down to the police
      station and picked Rebecca out of a line-up as the person who passed the $20 bill. By the day of trial,
      the stock boy has moved to the mainland and is not available as a witness at trial. May the police
      officer testify about the stock boy's identification of Rebecca?



Professor John Barkai, U.H. Law School - Evidence                                                      Page - 13
                                                                 FRE - AMENDED DEC. 1, 1997
         RULE 801. DEFINITIONS
            The following definitions apply under this article:
            (d) Statements which are not hearsay.
            (2) Admission by party-opponent. The statement is offered against a party and is ... 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).


         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. Beckham, 968 F.2d 47, 51
         (D.C.Cir.1992); United States v. Sepulveda, 15 F.3d 1161, 1181-82 (1st Cir.1993), cert. denied, 114 S.Ct. 2714 (1994); United States v. Daly, 842 F.2d
         1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988); United States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir.), cert. denied, 115 S.Ct. 152 (1994);
         United States v. Zambrana, 841 F.2d 1320, 1344-45 (7th Cir.1988); United States v. Silverman, 861 F.2d 571, 577 (9th Cir.1988); United States v.
         Gordon, 844 F.2d 1397, 1402 (9th Cir.1988); United States v. Hernandez, 829 F.2d 988, 993 (10th Cir.1987), cert. denied, 485 U.S. 1013 (1988);
         United States v. Byrom, 910 F.2d 725, 736 (11th Cir.1990).

           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 - 14
                                                                                                      HRE 408, 104, & ADOPTIVE ADMISSIONS
STATE v. GANO
92 Hawai'i 161, 988 P.2d 1153 (1999)

Defendant was convicted following jury trial in the Fifth Circuit Court on sexual assault and kidnapping charges. Defendant appealed. The Supreme Court,
Moon, C.J., held that:...(2) whether a defendant has manifested an adoption or belief in another's statement is a preliminary question of fact for the trial
judge; (3) evidence was not sufficient to support a finding that defendant by his silence and nonverbal conduct adopted, as his own, statements made by
relatives at meeting with alleged victim's parents; and (4) improper admission of evidence concerning alleged adoptive admissions was reversible error.
    Reversed and remanded for new trial.

Opinion of the Court by MOON, C.J.
A jury found defendant-appellant Rodolfo Gano (Defendant) guilty of: (1) one count of Sexual Assault in the First Degree, (2) two counts of Sexual Assault
in the Third Degree, and (3) one count of Kidnapping. On August 17, 1998, the fifth circuit court entered an Amended Final Judgment against Defendant,
sentencing him to twenty years of indeterminate imprisonment. On appeal, Defendant contends that his convictions should be vacated and remanded
because the circuit court erred in: (1) ruling that Hawai i Rules of Evidence (HRE) Rule 408 has no application in criminal cases; (2) admitting hearsay
evidence of a proposed settlement offer under HRE Rule 408; and (3) admitting evidence under the adoptive admission exception to the hearsay rule in
the absence of a proper foundation. For the reasons discussed below, we agree with Defendant, vacate Defendant's judgment of conviction and sentence,
and remand this case for a new trial.

Defendant and Complainant were friends. Complainant, then age sixteen, attended Defendant's twenty-second birthday party. After Complainant arrived
at the party, Defendant invited her upstairs to the living room, while the “adults” remained downstairs in the garage area. Defendant's first language is
Ilocano; however, he spoke to Complainant in her first language, Tagalog. At this point, the accounts of that evening diverge [the complainant charges
sexual assault; the defendant claims consensual acts].

...two days after the incident, Complainant told her parents about her encounter with Defendant. The parents and Complainant went that same day to the
police station and filed a complaint. ... approximately one month after the incident, Aunt spoke with the mother of Complainant (Mother) over the
telephone. Apparently, Aunt and Mother were friends. During the conversation, Aunt told Mother that the police had been to her house and asked Mother
what was going on. Upon hearing the allegations, Aunt asked for permission to visit Mother to talk about the incident in person. Mother agreed. Aunt
then called Defendant and told him to accompany Aunt to the home of Complainant. Defendant did not want to go.

When Defendant and Aunt arrived at Complainant's home Aunt spoke with Mother in Tagalog (Mother did not understand or speak Ilocano) while
Defendant stood by idly. Approximately an hour into their conversation, [a] cousin ... arrived. Aunt, Cousin, and Defendant were at Complainant's home
for several hours...During the conversation prior to Father's arrival, Aunt, according to Mother's testimony, apparently asked Mother to drop the case.
Cousin, separately and in Tagalog, offered money to Mother. Defendant remained silent.

When Father returned home from work, Aunt and Cousin talked to Father, in Tagalog, about the case and offered him money. Father testified that,
although Defendant remained silent during the conversation, Defendant was “shaking his head” the entire time. up and down or side-to-side...


At trial, Aunt denied asking Complainant's parents to drop the charges, and Cousin denied offering the parents money. Defendant claimed he did not
speak, did not hear any offers, and did not ask the parents to drop the charges. Additionally, Defendant testified that, when Mother asked him directly,
he affirmatively denied using force upon Complainant.

C. The Motion in Limine

Prior to trial, Defendant filed a Motion in Limine to exclude, among other things, any evidence regarding the meeting...

B. HRE Rule 803: Adoptive Admissions
This court previously dealt with the ambiguous nonverbal conduct of silence in State v. Hoffman, 73 Haw. 41, 828 P.2d 805 (1992):...
Although the nonverbal conduct analyzed in Hoffman was silence alone, we believe that in any circumstance in which a defendant's head or other body
movement, including silence, is ambiguous, a closer examination is in order. Thus, in accordance with Hoffman, whether a defendant manifested an
adoption of or belief in the truth of a statement of another by ambiguous nonverbal conduct requires proof that: (1) the defendant actually heard and
comprehended the effect of the words spoken; (2) under the circumstances, an innocent defendant would normally be induced to respond; and (3) no
other explanation is equally consistent with the defendant's words or conduct.

2. Preliminary Determination

Whether a party manifested an adoption of another person's statement is a preliminary question governed by HRE Rule 104.

In addressing preliminary questions of admissibility under Rule 104(a):
    [T]he judge will of necessity receive evidence pro and con on the issue. The rule ... provides that the rules of evidence in general do not apply to this


Professor John Barkai, U.H. Law School - Evidence                                                                           Page - 15
   process ... and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay. This view is reinforced
   by practical necessity in certain situations. An item, offered and objected to, may itself be considered in ruling on admissibility, though not yet admitted
   into evidence.

Commentary to HRE Rule 104 (citing Advisory Committee's Note to Fed.R.Evid. 104(a)). “Where the ... facts necessary [to] admissibility ... are disputed,
the offering party has the burden [of proof] ... by a preponderance of the evidence.” State v. McGriff, 76 Hawai i 148, 157, 871 P.2d 782, 791 (1994) (citing
Bourjaily v. United States, 483 U.S. 171, 176, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)).

However, when dealing with a matter of conditional relevancy under HRE Rule 104(b),
   factual issues ... are properly within the province of the jury rather than the court, subject to preliminary determination by the court that sufficient
   foundation has been laid to support a determination by the jury that the condition has been fulfilled. As with other factual determinations, the
   proponent may offer evidence in support of the condition, the opponent may offer contrary evidence, and the jury rather than the judge must reconcile
   the dispute.
Commentary to HRE Rule 104. When determining whether sufficient foundation has been laid under HRE Rule 104(b), the judge “neither weighs
credibility nor makes a finding that the [proponent] has proved the conditional fact by a preponderance of the evidence.” Huddleston v. United States, 485
U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). “[T]he court may consider only evidence admissible under the rules of evidence since the jury will
have only such evidence before it when it makes the final determination of the existence of the preliminary fact.”

Courts and scholars are split on whether adoption of another's statement is a preliminary question of fact for the trial judge under Rule 104(a) or a question
of conditional relevancy under Rule 104(b)...
First, the language of HRE Rule 104(a) assigns to the trial judge the responsibility of making preliminary determinations regarding, inter alia, the
“admissibility of evidence.” The commentary to the rule suggests that admissibility of hearsay falls within the scope of HRE Rule 104(a). The adoptive
admission sought to be admitted here implicates an exception to the hearsay rule. Thus, whether a person has manifested an adoption of or belief in the
truth of another's statement is a preliminary fact to be determined by the judge within the scope of HRE Rule 104(a).

Second, HRE Rule 104 is basically divided between questions of competence (subparagraph (a)) and relevance (subparagraph (b)). Competence, in this
context, means “whether evidence is admissible under one of the policy-based exclusionary rules, such as the rule against hearsay.” Carlson, 808 P.2d
at 1008 (citation omitted). The manifestation of adoption of or belief in another's statement “involves a preliminary question of fact on which the
competency, and thus the admissibility, of the evidence depends.” Id. at 1008-09.

Third, the policy of preventing the trier of fact from considering the possible truthfulness of out-of-court statements, without sufficient guarantees of
trustworthiness, would not be served by sending the determination of the predicate facts to the jury. In weighing whether conduct rose to the level of
adoption of or belief in another's statement, the jury would necessarily be made privy to not only the evidence about the conduct and the surrounding
circumstances, but also the out-of-court statement itself. If the jury determines that the defendant did not manifest an adoption of the statement, jury
contamination would already have occurred, the impact of which would be impossible to determine. See Carlson, 808 P.2d at 1009 (citations omitted).
 Additionally, a general verdict of guilt or acquittal would not apprise the court or the parties as to how the jury resolved the hearsay issue. Thus, appellate
review of the jury's finding would be impossible unless a special set of preliminary jury findings were made part of the record. See id.

Furthermore, our determination that whether a defendant has adopted a statement is a preliminary question of fact for the trial judge is consistent with the
holding in Hoffman that, “[b]efore admitting a proffered admission by silence, the trial court must preliminarily determine that the Defendant actually heard
and comprehended the effect of the words spoken and that under the circumstances an innocent Defendant would normally be induced to respond.”
Hoffman, 73 Haw. at 49, 828 P.2d at 810. This determination is also consistent with the policy expressed in HRE Rule 104(c), which states: “Hearings
on ... preliminary matters shall be ... conducted [out of the hearing of the jury] when the interests of justice require....” Accordingly, we hold that whether
a defendant has manifested an adoption of or belief in another's statement is a preliminary question of fact for the trial judge under HRE Rule 104(a).



3. Application to this Case


We now turn to the facts of this case to determine whether the trial court erred in allowing the hearsay evidence from the Meeting as Defendant's adoptive
admission...

In the present case, the preliminary question of fact was whether the prosecution, as the proponent of the evidence, had established by a preponderance
of the evidence that Defendant's nonverbal conduct during the Meeting, consisting of silence throughout the day followed by “shaking his head” as the
offer was being related to Father, manifested Defendant's adoption of Aunt's and/or Cousin's statement.

Defendant argues that the prosecution did not lay the proper foundation for an adoptive admission. Based on our review of the transcript of the hearing
on the motion in limine, it appears that the trial court did not make a preliminary determination that Defendant manifested an adoption of his Aunt's and/or
Cousin's statements at the Meeting.

From the record, there does not appear to be a preliminary finding by the court that Defendant understood what was said, would have responded if


Professor John Barkai, U.H. Law School - Evidence                                                                             Page - 16
innocent, and had no other explanation for his conduct. Rather, it appears that the trial court erroneously left the question of Defendant's adoption of the
alleged offer to the jury when it stated, “If that is the testimony, the court will permit the testimony and, of course, the aunt, the cousin, and the Defendant
can rebut whatever happened that evening.” The error, however, is not reversible if the entire evidence in support of an adoptive admission was sufficient
to support the finding. We hold that it was not.

The prosecution argues that Defendant was present at the meeting, understood the statements of his Aunt and Cousin, and affirmatively assented to those
statements when he “nodded” his head....However, as previously indicated, Father testified only that Defendant was “shaking” his head, not nodding...

In our view, the testimony at trial reveals that Defendant's nonverbal conduct, specifically his silence coupled with the head shake or nod, was ambiguous
and, therefore, required a closer examination. Although the prosecution characterizes Father's testimony as indicating that Defendant nodded his head,
the record reflects only that Father specifically uses the words “shaking his head” when describing Defendant's conduct. Even assuming that Defendant
was nodding his head up and down, indicating affirmance, the record is ambiguous as to whether Defendant was acquiescing to a particular statement,
or whether he was acquiescing at all, because he supposedly nodded his head continuously for thirty minutes. Thus, we examine whether the evidence
would have supported findings that (1) Defendant actually heard and comprehended the effect of the words spoken, (2) under the circumstances
Defendant, if innocent, would have been induced to respond, and (3) no other explanation was equally consistent with Defendant's conduct.

First, the record is unclear as to whether Defendant actually heard and comprehended the effect of the words spoken. From Father's testimony, we know
only that Defendant shook his head during the entire time that discussions were taking place about the “case” and offering money. Defendant's response
gives little assurance that he adopted, as his own admission, every detail of the lengthy conversation or, more particularly, that he heard, comprehended,
and adopted Cousin's alleged offer of money. Mother's testimony was also ambiguous as to whether and when Defendant was present and heard the
statement(s). Furthermore, it is unclear whether Defendant comprehended that an offer of money or request to “drop the case” had the effect of implying
that he had, in fact, forced Complainant to succumb to his advances during the incident. The record does not clearly show that he knew the complaint
against him existed, or that he understood the nature of the crime alleged.

Second, it is unclear whether, under the circumstances, Defendant, if innocent, would have normally been induced to respond to the statements made by
his cousin and his aunt. The alleged offer and request to drop the case were accompanied by statements that implied that “dropping the case” was better
for the parents of Complainant because they would “save plenty money” and they were “wasting time.” These statements were not accusations or
admissions of Defendant's guilt and, therefore, might not have induced Defendant, if innocent, to respond. In fact, it would be equally consistent to infer
Defendant's innocence from the assertion that Complainant's family was wasting money and time. The record also does not reflect whether, in a cultural
context, at this meeting between two Filipino families, an innocent defendant would be induced to respond to offers made by a family member in the
absence of a statement alluding to the guilt or accusation of the defendant. See Commentary to HRE Rule 803 (“[T]he issue is whether, in context, the
statement was of such a nature that the person would reasonably have been expected to deny the statement if it were untrue.”). Cultural norms may have
obligated Defendant to attend the Meeting, but he may not have paid attention to the discussions.

Finally, from the record, we cannot say that there was no other explanation for Defendant's conduct. The record does not adequately reflect the particular
statement to which he may have been responding. If Defendant was nodding, rather than shaking, his head continually throughout the Meeting, we can
hardly say that his nod was a response to a particular statement. His cousin or aunt may have instructed him to be silent. He may not have understood
what was transpiring because Tagalog was not his first language. FN7 He may have believed that the money was being offered to avoid “wasting time”
and “money.” Defendant may have wanted to apologize or take responsibility for any trouble he caused even while still denying that he forced the
Complainant. Defendant may have been simply acquiescing to the facts as he stated them at trial, without admitting any use of force. With all of these
possibilities, we cannot say that there was no explanation for his silence or his continual nodding other than his assent to the offers of his aunt and cousin.
          FN7. Although Defendant testified that he spoke Tagalog, no inquiry was made as to the extent of his language capabilities. He also testified that
          he spoke English; yet, he requested an interpreter at his arraignment (and was not given one), experienced difficulties with language at trial, and
          used an interpreter at his sentencing hearing.
Based on the testimony at the motion in limine hearing, the trial court did not make an adequate preliminary determination as to whether Defendant had
adopted the statements of Aunt or Cousin as his own. Considering the totality of the evidence adduced at trial in support of the trial court's finding of an
“adoptive admission,” we hold that Defendant's nonverbal reaction was so ambiguous that it cannot reasonably be deemed sufficient to establish that
Defendant manifested an adoption of his Aunt's or Cousin's statements as his own. Without that determination, the evidence of the Meeting lacked proper
foundation and constituted irrelevant and inadmissible hearsay. Accordingly, we hold that the evidence of the meeting and the statements allegedly made
thereat were erroneously admitted.
C. Harmless Error
We are then faced with the question whether the erroneous admission of evidence was harmless.
[E]rror is not to be viewed in isolation and considered purely in the abstract. It must be examined in light of the entire proceedings and given the effect to
which the whole record shows it is entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have
contributed to conviction.
Having reviewed the record in its entirety, we are not convinced that the error in this case was harmless beyond a reasonable doubt...There was more than
a reasonable possibility that this evidence may have weighed against Defendant's credibility and, therefore, contributed to his conviction. Accordingly,
we cannot say that the admission of the evidence was harmless beyond a reasonable doubt.

IV. CONCLUSION Based on the foregoing, we vacate the circuit court's judgment and sentence and remand this case for a new trial.


Professor John Barkai, U.H. Law School - Evidence                                                                             Page - 17
                                        ADMISSIONS PROBLEMS
                            Are the following statements admissible? Why or why not?

PARTY:     self; adoptive/tacit (silence)
VICARIOUS: authorized; employee (agent/servant); co-conspirator
HAWAII:    deceased in wrongful death; predecessor in interest, in litigation


1. Slip and fall in Long's Drugs. Clerk who saw the fall comes by and says, "Sorry you fell. I was just getting ready to mop up that
   mess." Is the clerk's statement admissible against Longs?


2. Auto accident "Dart out" case. Billy Boy was hit on his bike by a car. W1 heard driver say the next day, "I am real sorry about the
   little boy. I never saw him." (G)


3. In Billy Boy's case, W2 heard the driver say, "It must be my fault."


4. W3 heard Billy Boy's mother (who didn't see the accident) say, "I knew my son's wild bike riding would get him in trouble some day."
   (G)


5. Two brothers are in a dispute over who owns a family heirloom. Before the dispute arose, W heard B1 say, "B2 is great. He is letting
   me use his heirloom." B2 later sues B1 to establish ownership of heirloom. Is B1's statement admissible against him? (TG)


6. Criminal case. Dan is charged with robbing a store. W testifies that she saw Dan running away from the store right after the robbery.
   Admissible?


7. P was badly injured when attacked by a large dog outside of D's warehouse. It is undisputed that D was out of the state on the day
   of the attack. D denies ownership of the dog. Two weeks later while trying to purchase theft insurance, D tells an insurance agent,
   "We should qualify for a low rate. Recently one of our watchdogs bit a prowler and laid him up." (F&S)


8. P claims he has a back injury. At trial, defendant wants to introduce a xerox copy of an employment application with the following
   notation:
"Q: Physical disabilities?" To which P answered, "None." Admissible?


9. Would your answer be different if in the above question P instead attached a report of a health physical in which the doctor said that
   P is in "excellent health?"


10. Def. I owe you $10.
         P. No, it's $20.
         Def. (Silence) Is the silence admissible?


11. Can the prosecutor ask the defendant about his silence by asking on cross examination, "When detective Jones talked with you about
         the fight, isn't it true that you never said anything about acting in self defense?"


Professor John Barkai, U.H. Law School - Evidence                                                           Page - 18
12. P is injured in rental car accident. Rental car company mechanic told the P's investigator that the rental car needed new brake linings.
           Can the investigator testify about the mechanic's statement?


13. Mechanic in the above question is fired for sloppy brake work before he makes the statement to the investigator. The investigator
        finds the mechanic at home and gets the above statement. Is the statement admissible?


14. A company driver takes the company truck home overnight for personal use, and that night he hits a pedestrian. The driver and the
        company both are sued by the pedestrian. The driver later tells a witness, "The brakes were bad." Admissible? Against whom?


15. P signs a civil complaint, alleging the accident happened on a rainy day. P later amends complaint to allege the weather was clear and
         dry. D wants to introduce the first complaint into evidence. Admissible? Binding?


16. Larry, Moe, and Curley methodically planned a series of bank robberies. Before the first robbery, when Larry told Curley to "Go steal
         a car," Groucho overheard that statement. When the three of them are tried for conspiracy to commit bank robberies, the
         prosecutor offers Groucho's testimony about Larry's statement in the trial of Larry, Moe, and Curley. Admissible? (SF:187)

17. Before Larry, Moe, and Curley were able to carry out their second robbery, the police learned of their plans and arrested them. During
         the arrest, Moe blurted out "Okay, so we were going to rob some banks. You wouldn't have caught us except you got lucky.
         Larry and Curley had mapped out ingenious plans." If the prosecutor offers Moe's statement, is it hearsay? Admissible?

18. Is there any change in the admissibility of Moe's statement above if the three defendants are charged only with attempted bank robbery
          and not conspiracy to rob a bank?

19. Does it matter if Larry, Moe, and Curley are tried jointly or separately?

20. How will Bruton v. U.S, 339 U.S. 122 (1966) affect the admissibility of Moe's statement?

21. A owns property. A says, "I know that X is living illegally on the property." A sells to B. X later sues B for title under adverse
        possession doctrine claiming open, notorious use. Is A's statement admissible against B?

Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
Coconspirator admissions
Statements by a cooperating coconspirator to known authorities, made after the commencement of cooperation, are not
admissible because such statements are not made "in furtherance of the conspiracy." United States v. Singh, 494 F.3d 653,
659 (8th Cir. 2007), cert. denied, 552 U.S. 1006, 128 S.Ct. 528, 169 L.Ed.2d 368 (2007).
Coconspirator statements that are made during and in furtherance of a conspiracy are not considered testimonial and so
their use does not implicate the Confrontation Clause. United States v. Hargrove, 508 F.3d 445, 449 (7th Cir. 2007).




Professor John Barkai, U.H. Law School - Evidence                                                 Page - 19
                                                                      HRE 803(b)(1)&(2), 802.1, 613(b)
STATE v. ZUKEVICH
84 Hawai'i 203, 932 P.2d 340 (1997)

Defendant was convicted of manslaughter, and he appealed. The Intermediate Court of Appeals, Acoba, J.,
held that: (1) statement made by homicide victim just before he was fatally shot that "I no more gun" was
admissible under excited utterance and present sense impression exceptions to hearsay rule, and (2) written
statement given to police by defendant's daughter, which related statement by victim, was admissible as prior
inconsistent statement of daughter.
Affirmed.

   We hold ... that 1) the statement by the decedent, Theodore Walter Cuesta (Cuesta), just prior to being shot,
was not inadmissible hearsay, 2) the written statement of Defendant's daughter, Kuulei Valmoja (Valmoja),
which incorporated Cuesta's statement, while also hearsay, was properly admitted into evidence as a "prior
inconsistent statement,...

   On the evening of June 25, 1993, Defendant shot and killed Cuesta, his brother-in-law, after Cuesta drove up
to Defendant's driveway and began yelling at Defendant. Defendant testified that prior to the shooting and
earlier the same day, Cuesta had threatened to shoot him and as a result, Defendant was afraid of Cuesta.
Defendant denied hearing Cuesta say, "I no mo' gun." Defendant's defense at trial was that he shot Cuesta in
self-defense.

   On June 26, 1993, at approximately 2:45 a.m., Valmoja gave Honolulu Police Department (HPD) Officer
David Yomes (Officer Yomes) an oral statement which Officer Yomes reduced to writing because Valmoja's
"hands couldn't stop shaking [.]" In this two-page signed written statement (written statement), Valmoja related
that she overheard statements between Defendant and Cuesta prior to the shooting. Most pertinent was
Cuesta's statement, "I no more gun," at the time Defendant shot and killed him. On the same morning, Valmoja
also spoke with HPD Detective Anderson Hee in an interview which was taped and transcribed.

    During the trial, the State of Hawai'i (State) offered the written statement into evidence after Valmoja refused
to confirm that she had told the police about Cuesta's remark. The court stated that it would "allow in [the written
statement] under [Hawai'i Rules of Evidence (HRE) ] 613 and 802.1" and received the written statement into
evidence. ...

  Defendant's first point on appeal is that the court erred in receiving the written statement into evidence
because it contained "the hearsay declaration of [Cuesta]."

  While the point is not raised by the parties, we recognize that Valmoja's written statement, which incorporated
Cuesta's statement, is itself hearsay. Valmoja's written statement was made outside of court, not under oath,
and offered at trial to prove the matters asserted therein. See HRE Rule 801(3). Thus, Cuesta's statement
constituted hearsay within the hearsay statement of Valmoja.

   According to HRE Rule 805, however, "[h]earsay included within hearsay is not excluded under the hearsay
rule if each part of the combined statements conforms with an exception to the hearsay rule provided in the[ ]
rules."

   Initially, then, we must determine whether Cuesta's out-of-court statement was admissible as an exception to


Professor John Barkai, U.H. Law School - Evidence                                Page - 20
the hearsay rule as provided under the Hawai'i Rules of Evidence.

                                                       B.
On appeal, the State maintains that Cuesta's statement, "I no more gun," was admissible under the hearsay
exceptions of "present sense impression" (HRE Rule 803(b)(1)) and "excited utterance" (HRE Rule 803(b)(2)).
 We believe it would be permissible to receive the statement, "I no more gun," into evidence under either
exception because the evidence at trial would support both exceptions.

Spontaneity is the common underlying factor that insures the trustworthiness of both the present sense
impression and the excited utterance exceptions. The Hawai'i Supreme Court has explained that
"[t]he underlying theory of Exception (1) is that substantial contemporaneity of event and statement negative the
likelihood of deliberate or conscious misrepresentation.... The theory of Exception (2) is simply that
circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and
produces utterances free of conscious fabrication. Spontaneity is the key factor in each instance, though arrived
at by somewhat different routes."
  State v. Moore, 82 Hawai'i 202, 218, 921 P.2d 122, 138 (1996) (quoting Advisory Committee's Note to Federal
Rules of Evidence (FRE) Rules 803(1) and 803(2)) (emphasis added).

The present sense impression exception differs from the excited utterance impression in that it lacks the
"requirement of an exciting event." McCormick, supra 271, at 213 (referring to a present sense impression as
an "unexcited" statement of a present sense impression). Further, the "[present sense impression exception] is
limited to statements that describe or explain the event or condition" while "the [excited utterance exception]
requires only that the statement relate to the [startling] event." Commentary to HRE Rule 803 (1993), McCormick,
supra 271, at 213-14. And while the present sense impression statement must be made while the declarant
was actually "perceiving the event or condition" or immediately thereafter, the excited utterance statement may
be made during the "duration of the stress caused by the exciting event." See McCormick, supra 271, at 214.

                                                       1.
The assumption underlying the present sense impression exception is
that statements of perception substantially contemporaneous with an event are highly trustworthy because: (1)
as the statement is simultaneous with the event, there is no memory problem; (2) there is little or no time for
calculated misstatement, and (3) the statement is usually made to one who has equal opportunity to observe and
check misstatements.

    At trial, Defendant testified that following a confrontation earlier in the day, he "thought [Cuesta] was going to
come over [to] my house and shoot me." Later, at home, Defendant heard a gunshot which he believed was fired
by Cuesta. According to Defendant, Defendant then put a gun in his back pocket and walked out to Defendant's
garage. Defendant saw Cuesta drive into Defendant's driveway, and Defendant approached Cuesta.
Defendant recounted that when he stopped in front of Cuesta's car, Defendant asked Cuesta, "What you got
against me, you know, what the fuck I did now?" Defendant maintained that Cuesta then threatened to "blow
[Defendant] away" and "kill" him, and Defendant responded, "What, you like kill me?". When Cuesta said, "I
going shoot you," Defendant explained he "snapped" and "just shot." Defendant did not recall Cuesta saying,
"I no more gun."

   In the written statement, Valmoja reported she heard a gunshot before Cuesta drove up to the house. The
written statement indicates Defendant said, "What you fucka, you looking for me[?] I heard the gunshot." Then,
according to the statement, Cuesta said, "I no more gun," and "two shots went off."


Professor John Barkai, U.H. Law School - Evidence                                 Page - 21
   Cuesta's statement, "I no more gun," may be viewed as a response to Defendant's apparent accusation that
Cuesta had shot at him. Cuesta's statement, "I no more gun," describes the "condition" of being unarmed. By
the nature of his statement, Cuesta perceived the condition when he made the statement. Cuesta's assertion
was made in seeming response to Defendant's statement, "You looking for me[?] I heard the gunshot."
Arguably, then, the "substantial contemporaneity" of the condition and the statement describing the condition in
response to Defendant's accusation established the trustworthiness of the statement as a "present sense
impression."

                                                       2.
Because of the proximity of Cuesta's statement, "I no more gun," to the shots fired by Defendant, Cuesta's
statement may also be viewed as related to the startling event of being shot.

 The Hawai'i Supreme Court has said that:
   "The assumption underlying [the excited utterance] exception is that a person under the sway of excitement
   precipitated by an external startling event will not have the reflective capacity essential for fabrication and that,
   consequently, any utterance will be spontaneous and trustworthy."
 State v. Clark, 83 Hawai'i 289, 296, 926 P.2d 194, 201 (1996); Moore, 82 Hawai'i at 218, 921 P.2d at 138
(quoting Weinstein, supra 803(2)[01], at 803-101).

   To meet the foundational requirements imposed by HRE Rule 803(b)(2), the proponent of the statement must
establish that: (1) a startling event or condition occurred; (2) the statement was made while the declarant was
under the stress of excitement caused by the event or condition; and (3) the statement related to the startling
event or condition. Clark, 83 Hawai'i at 296, 926 P.2d at 201; Moore, 82 Hawai'i at 218, 921 P.2d at 138.

    As to the first and second requirement, it may be inferred from the evidence that Cuesta's statement, "I no
more gun," was made while he was under the stress of excitement caused by the imminent threat of death. As
to the third requirement, Cuesta's statement, "I no more gun," was related to the "startling event" of facing death.

   Accordingly, Cuesta's statement may be treated as related to and made under the stress caused by the
impending shooting and, hence, not a "product of reflective thought." See Clark, 83 Hawai'i at 298, 926 P.2d
at 203; Moore, 82 Hawai'i at 222, 921 P.2d at 142. [FN5]

FN5. We reach our conclusion that the "excited utterance" exception to the hearsay rule applies in this instance
despite the State's failure to claim this exception at trial. The court's allowance of the testimony under the
"present sense impression" exception, if error, was harmless because of our holding that Cuesta's statement
was also admissible under the "excited utterance" exception.

                                                          C.
                                                          1.
   Defendant also asserts that in admitting Valmoja's written statement the court did not consider HRE Rules
804(a)(4) [FN6] and 804(b)(6) [FN7] "relating to the unavailability of the declarant [Cuesta] and the foundational
requirement before such a statement can be admitted," but Defendant fails to indicate how this is material to his
appeal. Defendant appears to argue that because Cuesta, as a declarant, was deceased, his statement may
only be admitted under HRE Rule 804 which allows certain hearsay statements to be received in evidence "if the
declarant is unavailable as a witness." "The scheme of this rule is that the [hearsay] exceptions collected in
subsection [HRE Rule 804](b) all depend upon a foundation requirement that the hearsay declarant be
'unavailable' as that term is defined in subsection (a)."

Professor John Barkai, U.H. Law School - Evidence                                   Page - 22
    On the other hand, Cuesta's statement was admissible under HRE Rule 803 without regard to proof of his
availability as a witness. HRE Rule 803 exceptions are admissible regardless of the availability of the declarant.
  In fact, this factor is the primary distinguishing characteristic between HRE Rules 803 and 804. Commentary
to HRE Rule 803 (1993) ("As the title of Rule 803 suggests, the various exceptions to the hearsay ban collected
in [HRE Rule 803] do not depend upon the present status or whereabouts of the decedent."). Thus, the
"availability of the declarant as a witness is in all instances immaterial to the question of admissibility." Id.

   Moreover, HRE Rule 804(b)(6), if satisfied, would only provide another means for admitting Cuesta's
statement. The State was not obligated to offer Cuesta's statement as an exception under HRE Rule 804 if the
statement was admissible under HRE Rule 803. Indeed, the foundational requirement for HRE Rule 804(b)
exceptions is a concession to the recognition that HRE Rule 803(b) exceptions otherwise possess a higher
degree of reliability than do HRE Rule 804(b) exceptions:
   The underlying theory of the Rule 804 exceptions to the hearsay ban is that they possess a degree of
   reliability which, while not necessarily as high as that characterizing the Rule 803(b) exceptions, justifies
   admission of declarants' statements provided the declarants cannot be produced to testify.
 Commentary to HRE Rule 804 (1993).
                                                          2.
                                                         D.
   Having concluded that Cuesta's statement was admissible as an HRE Rule 803 exception to the hearsay rule,
we must next consider whether the written statement itself is admissible under another exception to the rule
against hearsay.

   The written statement was offered under HRE Rule 802.1(1) which "provides for substantive use of most prior
inconsistent witness statements as an exception to the hearsay rule." Commentary to HRE Rule 613 (1993);
see also Canady, 80 Hawai'i at 480, 911 P.2d at 115 (stating that HRE Rule 802.1 adopted federal exception to
common law allowing "prior inconsistent statements to be used as substantive proof of the matters asserted in
the statement" if the statement's trustworthiness is assured).

   The foundational requirements for evidence admitted pursuant to HRE Rule 802.1(1)(B) are as follows:
   (1) a witness must testify about the subject matter of his or her prior statements so that the witness is subject
   to cross-examination concerning the subject matter of those prior statements; (2) the witness's prior
   statements must be inconsistent with his or her testimony; (3) the prior inconsistent statements must be
   reduced to writing and signed or otherwise adopted or approved by the witness; (4) the prior inconsistent
   statements must be offered in compliance with HRE Rule 613(b), which requires that, on direct or
   cross-examination, the circumstances of the prior inconsistent statements have been brought to the attention
   of the witness, and the witness has been asked whether he or she made the prior inconsistent statements.
 Eastman, 81 Hawai'i at 137, 913 P.2d at 63 (footnote omitted); see also Canady, 80 Hawai'i at 480-81, 911
P.2d at 115-16.

We believe the four fundamental requirements for admissibility were met:

   First, Valmoja recalled giving a written statement to Officer Yomes and was examined on her recollection of
the statement given. During his cross-examination of Valmoja, defense counsel elicited testimony that she had
been drinking at the time she gave the statement to Officer Yomes. Valmoja also stated that she "did not know
that [she was] going to adopt th[e] statement to be used in a court of law" when she signed the written statement.

   Defendant's cross-examination of Valmoja thus "satisfied constitutional and trustworthiness concerns over

Professor John Barkai, U.H. Law School - Evidence                                Page - 23
admitting [Valmoja's prior inconsistent statement] into evidence ... because the cross-examination gave
[Defendant] the opportunity to have [Valmoja] fully explain to the trier of fact why her in-court and out-of-court
statements were inconsistent, which, in turn, enabled the trier of fact to determine where the truth lay." Eastman,
81 Hawai'i at 139, 913 P.2d at 65; Canady, 80 Hawai'i at 480-81, 911 P.2d at 115-16 (holding that "HRE Rule
802.1(1) requires, as a guarantee of the trustworthiness of a prior inconsistent statement, that the witness be
subject to cross-examination about the subject matter of the prior statement, that is, that the witness be capable
of testifying substantively about the event, allowing the trier of fact to meaningfully compare the prior version of
the event with the version recounted at trial...."). Hence, Valmoja was subject to cross-examination concerning
the subject matter of her prior written statement as required by HRE Rule 802.1.

   Second, Valmoja's written statement related that she heard her uncle say, "I no more gun." Valmoja's
testimony at trial, on the other hand, was that she did not tell Officer Yomes that she heard Cuesta say, "I no mo'
gun" and that she "never said" Cuesta had said, "Well, I no mo' gun with me, I no mo' gun." Thus, Valmoja's
prior written statement was inconsistent with her trial testimony.

   Third, Valmoja's prior statements were reduced to writing in the form prepared by Officer Yomes and signed
by her.

   Fourth, Valmoja was reminded about the circumstances of her prior inconsistent statement when the
prosecution asked her whether she "recall[ed] making a statement to Officer Yomes and a detective." Valmoja
answered affirmatively. Finally, the prosecutor also asked Valmoja whether she had made the prior inconsistent
statement when she "told Officer Yomes that [she] heard [her] uncle say, 'I no mo[re] gun.' " The prosecution
thus complied with HRE Rule 613(b) before offering Valmoja's prior inconsistent statement in evidence.

   We hold, then, that Valmoja's written statement was a "prior inconsistent statement offered in compliance with
HRE Rule 613(b) and was properly admitted as an exception to the hearsay rule under HRE Rule 802.1 for
'substantive use' at trial."

[J]udgment is affirmed.




Professor John Barkai, U.H. Law School - Evidence                                Page - 24
STATE v. ORTIZ 74 Haw. 343,              845 P.2d 547 (1993)                                               HRE 803(b)(2)

    On October 24, 1991, following a bench trial, Defendant-Appellant Odin Ortiz (Appellant) was found guilty of
physically abusing his wife, Emily Paia-Ortiz (Emily), in violation of Hawaii Revised Statutes (HRS) s 709-906 (Supp.1991)
(Abuse of family and household members).
...
    The prosecution's case consisted of two witnesses: Emily's father, George Paia (Paia), and Honolulu Police Officer
Darren Akiyama (Akiyama). [FN2] Both Paia and Akiyama recounted hearsay statements made by Emily. Over
Appellant's counsel's objections, the hearsay declarations were received in evidence as excited utterances under Hawaii
Rules of Evidence (HRE) Rule 803(b)(2).

    FN2. At trial, the prosecution made no showing of Emily's unavailability. The record also indicates that the prosecution
failed to serve Emily with a trial subpoena.

    Paia testified that around 2:00 a.m. on June 29, 1991, while he was watching television in his livingroom, Emily and
Appellant were having a conversation. Over Appellant's counsel's objections on the grounds of hearsay, Paia further
testified that he did not pay much attention to their conversation until he heard Emily say, "[w]hy did you hit me for?" Paia
then looked at Emily and saw that she was holding her face. Paia noticed that "[s]he was crying because tears was coming
out--down her eyes that she was hurt." Upon hearing Emily's statement, Paia immediately went to a nearby phone booth and
called the police. [FN3]

   FN3. Paia testified that it took him five minutes to get to the pay phone and about eight minutes to return home because
he had to climb steps to get back up to the apartment.

    On cross-examination, Paia testified that he did not hear any noise that sounded "like one person hitting another"
because he was paying attention to the television. He also admitted that he did not know at what point Appellant allegedly
struck Emily.

    When Appellant took the stand, he testified that he did not hit Emily on June 29, 1991. Appellant stated that Emily was
referring to a prior incident in January.
...
                                                             III.
    Appellant argues that the circuit court erred when it admitted, under the excited utterance exception to the hearsay rule,
Emily's out of court statements concerning the injury she allegedly received from Appellant. We agree as to Akiyama's
testimony, but not as to Paia's. Additionally, because Emily was not present at trial, Appellant contends that his
constitutional right to confront the witnesses against him was violated. We agree.

... [8] In evaluating whether a statement was made while the declarant was under the stress of excitement caused by an
event, the time span between the event and the making of the statement must be very short. See Shea, 67 Haw. at 506, 692
P.2d at 1164; State v. Messamore, 2 Haw.App. 643, 649, 639 P.2d 413, 418 (1982). In Shea, the court held that a
ten-minute interval between the event and the utterance "could not be said to have been very short [.]" Shea, 67 Haw. at 506,
692 P.2d at 1164.

... [10] Concerning Paia's testimony, Appellant argues that the requirements of HRE Rule 803(b)(2) were not satisfied
because no startling event was ever established and because, although Emily's statement relates to an allegedly startling
event, the statement cannot be used to establish that the startling event had in fact occurred.



Professor John Barkai, U.H. Law School - Evidence                                       Page - 25
    After reviewing the record, we conclude that Paia's testimony regarding Emily's declaration satisfies the foundational
requirements of Doe. Paia testified that he heard Emily say, "Why did you hit me for?" He then looked up and saw her
crying and holding the side of her face. The weight of the extrinsic evidence adequately shows that a startling event had in
fact occurred and that the startling event and subsequent hearsay statement were reasonably contemporaneous. First,
Emily's physical condition, crying and holding her face, indicates that the alleged offense occurred immediately prior to her
declaration. Second, her physical condition supports a conclusion that the statement was proximately caused by Appellant's
action of striking Emily's head. Third, because the time span between the startling event and the excited utterance heard by
Paia was very short, it is unlikely that Emily reflected on or planned her statement. Because reliable evidence, extrinsic to
the startling event, supports a conclusion that the event occurred, a fact finder is entitled to rely on the event as a predicate
for the admission of Emily's out of court declaration. Accordingly, we hold that the judge properly admitted Paia's
testimony regarding Emily's out of court statement under the excited utterance exception.

                                                               B.
   [11] The sixth amendment to the United States Constitution and article I, section 14 of the Hawaii Constitution [FN18]
guarantee an accused the right to confront adverse witnesses. The right of confrontation affords the accused both the
opportunity to challenge the credibility and veracity of the prosecution's witnesses and an occasion for the jury to weigh the
demeanor of those witnesses. State v. Rodrigues, 7 Haw.App. 80, 84, 742 P.2d 986, 989 (1987).

   FN18. Article I, section 14 of the Hawaii Constitution provides in relevant part that "[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against the accused[.]"

   [12] Appellant argues that the circuit court denied him his right of confrontation when it allowed hearsay testimony
without a showing of the unavailability of the declarant as required by the confrontation clause. The prosecution contends
that the reliability and trustworthiness of the excited utterance exception is sufficient to permit such statements to be
admitted at trial without showing the unavailability of the witness.

   In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court held that the
confrontation clause restricts the range of admissible hearsay in two ways. First, the prosecution must either produce, or
demonstrate the unavailability of, a declarant whose statement it wishes to use against a defendant. Id. at 65, 100 S.Ct. at
2538. Second, upon a showing that the witness is unavailable, only statements that bear adequate indicia of reliability are
admissible. Id.; Rodrigues, 7 Haw.App. at 84, 742 P.2d at 989 (citing Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220,
27 L.Ed.2d 213 (1970)). Reliability is shown "if the evidence falls within a firmly rooted hearsay exception" or "upon a
showing of particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. Moreover, these
requirements must be satisfied at the time of trial because the right to confrontation is basically a trial right. Rodrigues,
supra (citing Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)).

   The Supreme Court subsequently narrowed its reading of the confrontation clause and recognized that a declarant's
hearsay statement may sometimes be admitted at trial even though the declarant is available for cross- examination. See
United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). The Inadi decision held that the confrontation
clause does not require a showing of unavailability as a condition to the admission of an out-of-court statement of a
nontestifying co-conspirator. Id. at 396- 400, 106 S.Ct. at 1127-29. By doing so, the Supreme Court rejected the
proposition established in Roberts that "no out-of-court statements would be admissible without a showing of
unavailability." Id. at 392, 106 S.Ct. at 1125.

   Later, in White v. Illinois, --- U.S. ----, ----, 112 S.Ct. 736, 737, 116 L.Ed.2d 848 (1992), the Supreme Court held that the
confrontation clause does not require the prosecution to produce the declarant at trial or the trial court to find the declarant
unavailable before admitting testimony under the spontaneous declaration (i.e., excited utterance) exception to the hearsay
rule. The Court further clarified the scope of Roberts by stating that the "[u]navailability analysis is a necessary part of the

Professor John Barkai, U.H. Law School - Evidence                                         Page - 26
Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial
proceeding." Id. --- U.S. at ----, 112 S.Ct. at 741.

    In Rodrigues, the ICA recognized the importance of the confrontation clause, but drew a distinction between Roberts
and Inadi. In Rodrigues, the ICA found the declarant's out-of-court identification to be "more like the prior judicial
testimony at issue in Roberts than like the contemporaneous co-conspirator statements involved in Inadi, and thus both
Roberts requirements had to be satisfied." Rodrigues, 7 Haw.App. at 86, 742 P.2d at 990.

    Although the ICA correctly applied Roberts in the Rodrigues case, it is necessary to clarify our declination of the
Supreme Court's tests utilized in Inadi and White. A showing of the declarant's unavailability is necessary to promote the
integrity of the fact finding process and to ensure fairness to defendants. Although excited utterances have certain
guarantees of reliability, we also recognize that the right to confront an accuser should not be abandoned simply because the
alleged incriminating statement was made spontaneously. Thus, we choose to follow the Supreme Court test set forth in
Roberts.

    In State v. Beyer, 72 Haw. 469, 473, 822 P.2d 519, 521 (1991), we held that a defendant's right of confrontation was
violated when the trial court admitted a statement by the allegedly abused household member to the police where it was not
shown that the household member was unavailable and where the statement made did not qualify under any exception to the
hearsay rule. We further explained that: While it is true that mere absence of the complaining witness, where there have
been vigorous and appropriate steps to procure the complaining witness' presence at trial, does not necessarily constitute a
violation of the right of confrontation if the out-of-court statements of the complaining witness have been made in such
circumstances as to be so reliable that cross-examination does not appear necessary or there has been an opportunity for
cross- examination, State v. Rodrigues, 7 Haw.App. 80, 742 P.2d 986 (1987), that is not the case here. Id. (citation omitted
and emphasis added).

    [13][14] To demonstrate the unavailability of a declarant at trial, the prosecution must show that it made a good faith
attempt to secure his or her presence. Rodrigues, 7 Haw.App. at 86, 742 P.2d at 990. To establish this good faith attempt,
the prosecution must confirm on the record at the time of trial both the declarant's unavailability and that vigorous and
appropriate steps were taken to procure the declarant's presence at trial. Id. In this case, the record indicates that the
prosecution failed to issue a trial subpoena to Emily and failed to make a showing of her unavailability. Thus, the trial court
improperly admitted Paia's testimony.

   Based on the facts disclosed in the record, Appellant's right to confrontation under article I, section 14 of the Hawaii
Constitution was violated. Accordingly, we vacate Appellant's judgment of conviction and remand for retrial consistent
with this opinion.
R803(1) Present Sense Impression
         Example—Inadmissible. "(Wile are ... unaware of any legal authority for the proposition that 50 minutes after the fact
         may appropriately be considered 'immediately thereafter.' On the contrary, given the clear language of the rule and
         its underlying rationale, courts consistently require substantial contemporaneity." United States v. Green, 541 F.3d
         176, 181 (3d Cir. 2008).
R803(2) Excited Utterance
The startling event that triggers the statement need not be the crime or event out of which the litigation arises.
         Example—Admissible. "First, viewing the 'photograph of the individual that she recognized as her husband committing a bank
         robbery' was a startling event. Second, according to Trombitas's testimony, Mrs. Parks uttered the words 'oh, my God, that looks
         like Johnny,' as soon as she saw the photograph, and therefore before she could have had an opportunity to 'contrive or
         misrepresent.' Third, Mrs. Parks identified Crockett in her very first statement upon seeing the photograph, and then with tears
         in her eyes, reaffirmed that identification, evidence of the fact that she was still under the stress of the moment." United States
         v. Beverly, 369 F.3d 516, 540 (6th Cir.2004), cert. denied, 543 U.S. 910, 125 S.Ct. 122, 160 L.Ed.2d 188 (2004).
Unidentified bystanders. Statements by unidentified bystanders are not "ipso facto inadmissible" but "are admissible if they
otherwise meet the criteria of 803(2)." Miller v. Keating, 754 F.2d 507, 510 (3d Cir.1985).

Professor John Barkai, U.H. Law School - Evidence                                                 Page - 27
STATE v. MACHADO                                 Rule 803(b)(2)
109 Hawai'i 445, 127 P.3d 941 (2006)

Background: Defendant was of terroristic threatening in the second degree and abuse of a family or household member.
The Intermediate Court of Appeals affirmed. Defendant filed an application for writ of certiorari.

Holdings: The Supreme Court, Acoba, J., held that: (1) hearsay statements made by complaining witness to officer were
not excited utterances and were therefore inadmissible, but (2) error in admitting such statements was harmless beyond a
reasonable doubt.
Affirmed as modified.

   We granted certiorari to correct the ICA's determination that the court did not err in admitting the testimony of Sergeant
Roy Hirayama (Sergeant Hirayama) recounting the statement made by the complaining witness (CW or the CW) as a
hearsay exception under Hawai i Rules of Evidence (HRE) Rule 803(b)(2), but agree with Respondent/Plaintiff-Appellee
State of Hawai i (the prosecution) that this error was harmless beyond a reasonable doubt. Accordingly, we affirm the
decision of the ICA, which affirmed the conviction of Petitioner...

    In his application Petitioner raises the following question:
When a complaining witness makes a statement that is:
a) coherent and narrative;
b) elicited by police questioning;
c) after an alleged incident of domestic violence;
is such a statement admissible in court through the testimony of the questioning police officer under the excited utterance
exception to hearsay?

The following facts and procedural history taken from the ICA's opinion are relevant....
Maui Police Department (MPD) Sergeant Roy Hirayama (Sergeant Hirayama) testified that that he was dispatched to a
reported abuse at [Petitioner's] house. ... At about 10:30 p.m., Sergeant Hirayama heard the [CW] crying inside the house,
so he entered and inquired after her. Sergeant Hirayama recalled, “There was a slight odor of liquor on her breath.” He
acknowledged that “she was pretty hysterical or pretty emotional.”

What did the CW tell you happened?
... Approximately at 10:00 p.m. he arrived home and she had locked him out of the residence. He then attempted to gain
entry by removing a screen on the kitchen window. Seeing this, she allowed him to enter the residence. Once within the
kitchen area, [Petitioner] grabbed her from behind, holding her in a-what she said was a chokehold with his right arm.
There was a struggle, he held her with her-okay, after he got her in a chokehold, he stated-her words were that he stated that,
“Don't fuck with me.” There was a struggle. He grabbed her with his left hand and pulled on her hair, and wrestled her to
the ground. While they were struggling to the ground, she had bit him on the left-on his left arm.
After they were on the ground, she somehow got out of his hold. He then stepped on her head. And he reached for a steak
knife within the dish rack there on the counter. After obtaining the steak knife, he stated that, “Don't fuck with me, I'll kill you.”
  He then replaced the knife in the dish rack.
....
She then kicked him in the groin area, at which time he released her. She stood up, attempting to leave the kitchen area.
 He grabbed her from behind, spun her around, and grabbed her by the throat. There was a slight struggle. She got up.
She got loose from that and contacted the police.

    At trial the prosecution offered this testimony under HRE Rule 803(b)(2), the excited utterance exception to the hearsay
rule. See infra for text. The defense objected to Sergeant Hirayama's testimony as not falling within the
exception.[D]efense counsel ... elaborat[ed on] the hearsay objection:
[DEFENSE COUNSEL]: ... I mean if you could prove a case like this, every abuse case, which is have a copy of the report,
and he seek [sic] what happens, that's it. He's trying to work off his memory, which is not very reliable two years later. It's


Professor John Barkai, U.H. Law School - Evidence                                             Page - 28
just excessive hearsay. I don't see how this person can enter-an out of court statement made by the CW for the truth of the
matter asserted, when she has not-normally come in as impeachment evidence-I will have no problem with that. But the fact
that the CW has not stated anything contrary, nothing inconsistent, this is improper hearsay.
THE COURT: Counsel-counsel, look at 803(b), and clearly, I think this is an exception, either as excited utterance or her
statement of her then impressions of what then occurred. Clearly it was close enough in time and the situation involved-let
me describe, as something that would cause someone to be excited or agitated. We're not talking about somebody sort of
walking down the street-describing what they saw as they walk down the street.
....
[DEFENSE COUNSEL]: And ten minutes is ample time for her to make up a story.
THE COURT: Counsel, you can argue that, but I think it's excited utterance when something like this, allegedly violent to
occur, having taken a statement ten minutes within it occurring. It falls within the exception.

109 Hawai i at 426-427, 127 P.3d at 86-87 (emphases added) (brackets omitted). The jury also heard the 911 call placed
           FN7
by the CW.     As listed by the prosecution, the 911 call included the following statements made by the CW:
1. “Please hurry up he's going to kill me, please hurry”
2. “My boyfriend Dennis Machado”
3. “He choked me and he, he tried to stab me with a knife, please help me, please help me”
4. “He choked me and he, he choked and he held me on the ground and stepped on my head, he pinned me down and tried
to stab me, and he slammed me into the wall, please, please”
5. “Somebody's here, the police are here”
....

   Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result and
the appropriate standard for appellate review is the right/wrong standard.

    The CW testified at trial. Her description of the events on September 27, 2001, was largely consistent with the oral
statement Sergeant Hirayama recounted CW made at the scene, except that at trial she testified that she did not remember
                                                                                FN9
the Petitioner saying, “I'm going to kill you,” while wielding the steak knife.     ...
    In this case, the facts clearly establish that a startling event occurred and that the CW's statement to Sergeant Hirayama
related to this event...Our focus, therefore, is on whether the statement was made while the CW was still under the stress
of excitement caused by the dispute with Petitioner.

    The ultimate question in these cases is “whether the statement was the result of reflective thought or whether it was
rather a spontaneous reaction to the exciting event.” ... This court has said that “[t]he crucial element that buttresses the
reliability of [excited utterances] ... is their spontaneity.” Regarding the time span between the “startling event” and the
statement to be admitted as an excited utterance, this court has stated that “a very short time interval between a startling
event and an excited utterance, although a factor in the determination, is not a foundational prerequisite to the admissibility
of the statement under HRE Rule 803(b)(2).” Moore, 82 Hawai i at 221, 921 P.2d at 141.

[5] Other factors that courts often look to in determining whether a statement was the product of excitement include, as the
ICA related, the nature of the event, the age of the declarant, the mental and physical condition of the declarant, the
influences of intervening occurrences, and the nature and circumstances of the statement itself. Id. (citations omitted). As
noted above, the ICA's opinion cited these factors, but did not expressly apply them in reaching the conclusion that the CW's
oral statement was admissible as an excited utterance. Slip op. at 20-21.


                                                              VI.

In this case, we believe the nature and circumstances of the statement are pivotal. The facts adduced at trial established
that there was a heated altercation between the CW and the Petitioner, during which the CW was screaming loud enough to
prompt a neighbor to call 911. The CW's emotional state was described by Sergeant Hirayama as “pretty hysterical or pretty


Professor John Barkai, U.H. Law School - Evidence                                        Page - 29
emotional.” The time between the altercation and the CW's statements to Sergeant Hirayama was short and the CW
remained visibly upset as she described what had transpired.

Certainly this is a type of situation which could prompt an “excited utterance.” In that sense, we agree with the ICA that HRE
Rule 803(b)(2) does not require that the precipitating “startling event” be “extravagantly violent.” Therefore, we reject
Petitioner's argument that the CW's injuries were not severe enough to constitute a “startling event.” However, we do not
agree that it was an appropriate exercise of discretion for the court to have allowed Sergeant Hirayama to recount the CW's
entire statement under the excited utterance hearsay exception.

   Other courts have held that lengthy, narrative statements are not admissible as excited utterances...

    In the instant case, Sergeant Hirayama related in his testimony a narrative of considerable length and detail related to him
by the CW. The CW discussed the length of her relationship with the Petitioner, the period they had lived together, their plans
to meet at the Asian Sports Bar that evening, his failure to arrive, her preparation of dinner, her removal of his possessions
from the apartment, and a detailed account of the physical struggle that ensued. Based on the particularized and
comprehensive nature of the CW's statement, we conclude that the statement, made in response to questioning by the police,
exceeded a “truly spontaneous outburst.” Rather, it was a specific and inclusive rendition of the circumstances leading up
to the incident and of the incident itself.

Moore is distinguishable from the instant case because of the nature and circumstances of the statement made. In Moore,
a husband was convicted of attempted second-degree murder for shooting his wife. Moore, 82 Hawai i at 209, 921 P.2d at
129. The husband pulled up behind a police car with his injured wife as a passenger. Id. at 206, 921 P.2d at 127. While
waiting for an ambulance with a police officer, the wife stated that “he shot me,” “he's a good man[,] I told him I was leaving
him,” “he's distraught,” and “keep him away from me ... get him away from me,” referring to her husband. Id. at 217, 921
P.2d at 137. It was held that these statements were admissible under the hearsay exception for excited utterances. Id. at
222, 921 P.2d at 142.

In Moore, the wife's statements were several brief and disjointed remarks. At the time, the husband was close enough to
overhear her speaking to the officer and question what she was saying. Id. at 206, 921 P.2d at 126. The wife had been shot
five times and had sustained life threatening injuries. Id. The police officer, to whom the wife made her statements, testified
that she was perspiring and that her voice was “barely audible.” Id. Also, likely due to her physical and mental condition at
the time, her statement lacked coherence. At the time the statements were made, the wife was suffering from a collapsed
lung and had lost approximately one-half of her blood. Id. at 222, 921 P.2d at 142.

This case, on the other hand, involved a lengthy narrative of the events of an entire evening. As related by Sergeant
Hirayama, the CW's statement was detailed, logical, and coherent. The statement was not delivered under similar life
threatening physical conditions that justified the conclusion that the wife in Moore was still “under the stress of excitement”.
 HRE Rule 803(b)(2). Based on the nature and circumstances of the CW's statement, we conclude the court erred in
admitting the CW's statement under the excited utterance exception to the hearsay rule.
                                                               VII.
    The ICA did not determine whether, if the court erred in admitting the CW's statement, such error was harmless beyond
a reasonable doubt...In that context, the real question becomes whether there is a reasonable possibility that error might
have contributed to conviction... On appeal the prosecution asserted that the majority of the CW's statement was admitted
through other evidence properly admitted at trial, namely the tape recording of the CW's 911 emergency call and her
testimony. We believe that the prosecution is correct.
...
Accordingly, except for the conclusion that the hearsay statement of the CW was properly admitted as an exception to the
hearsay rule, we affirm the October 3, 2005 decision of the ICA, which affirmed the court's January 12, 2004 judgment, as
amended on February 12, 2004, convicting Petitioner of the included offense of terroristic threatening in the second degree,
HRS 707-716(1)(d) (Count I), and abuse of a family or household member, HRS 709-906(1) (Count II).



Professor John Barkai, U.H. Law School - Evidence                                        Page - 30
State v. Delos Santos,                     Excited Utterance
Unpublished Opinion, 121 Hawai'i 471, 220 P.3d 1052, 2009 (Hawai'i App.)

Defendant-Appellant Kenneth Delos Santos was convicted in the Family Court of the First Circuit of Abuse of Family or Household
Members.

On March 26, 2008, at approximately 1:05 a.m., HPD dispatch sent Officer Kubo to respond to a report of an argument at the Hawaiian
Monarch Hotel in Waikiki. A few minutes later, Officer Kubo arrived at the hotel. He went up to a room in the hotel where he met
Complainant, Delos Santos, and a hotel security officer, who had been waiting in the hotel room where Complainant and Delos Santos
were living.

Upon arriving at the room, Officer Kubo immediately observed that Complainant was limping, “really shaken, crying, and appeared to
be in a lot of pain.” He asked Complainant what had happened. Complainant was still shaken and crying, and Officer Kubo needed a lot
of time to calm her down. Complainant explained that her boyfriend,FN2 Delos Santos, had beaten her up. Complainant stated that Delos
Santos had punched her in the face so hard that she fell to the ground and then Delos Santos stomped on her right thigh. Officer Kubo
observed swelling on the right side of Complainant's lower chin area; a circular red mark on her right thigh; and slight abrasions on her
knee. Her state of agitation did not subside during the forty-five-minute investigation.

         FN2. At a Hawaii Rules of Evidence (HRE) Rule 104 hearing (Rule 104 hearing), Complainant testified that she and Delos
         Santos were living together at the time of the incident.

On August 5, 2008, the family court held a hearing on the motions in limine. Delos Santos' counsel informed the family court that
Complainant had no recollection of the events of March 26, 2008. Defense counsel argued that Officer Kubo's testimony regarding what
Complainant allegedly told him on the date of the incident should be precluded from evidence at trial as inadmissible hearsay. Counsel
maintained that if the family court were to admit the testimony into evidence, Delos Santos' right to confrontation would be violated
because Delos Santos would be unable at trial to cross-examine Complainant about the testimony because Complainant claimed she could
not recall the events.

The family court then proceeded with a Rule 104 hearing outside the presence of the jury to determine whether the court should admit the
testimony into evidence. After Complainant and Officer Kubo testified, the family court preliminarily found that Complainant's
statements to Officer Kubo would be admissible at trial pursuant to the excited utterance exception to the hearsay rule.

At trial, on August 6, 2008, Complainant testified that she had no recollection of the events on March 26, 2008. Officer Kubo began
testifying about Complainant's responses to his questions on the date of the incident, and Delos Santos' counsel renewed his objection to
the admission of Complainant's responses, but the family court allowed Officer Kubo to continue his testimony. Officer Kubo also
testified about the bruising, swelling, and abrasions he observed on Complainant.
…

A. COMPLAINANT'S STATEMENTS DO NOT QUALIFY AS AN EXCITED UTTERANCE UNDER HRE RULE 803(b)(2).

Delos Santos contends the family court erred in allowing Officer Kubo to testify about Complainant's hearsay statements under HRE
803(b)(2) as an excited utterance
…
Delos Santos argues that the nature and circumstances of Complainant's hearsay statement indicate non-spontaneity and are therefore
inadmissible under Machado. We agree. Officer Kubo testified that around 1:00 a.m. on March 26, 2008, he arrived at the Hawaiian
Monarch Hotel, where a hotel security officer had been waiting with Complainant and Delos Santos, and began questioning Complainant
about her injuries:

  [Q. State] Before [Complainant] told you anything, as you testified yesterday, you asked her what happened when you went in there,


Professor John Barkai, U.H. Law School - Evidence                                               Page - 31
  right?
  A. [Officer Kubo] Yes.

  Q. Okay. And you were going in there to investigate a crime, right?
  A. Yes.

Officer Kubo testified that at the time he asked Complainant what had happened, he “needed a lot of time to try to calm [Complainant]
down.”

Officer Kubo's questions to Complainant elicited her statements about the incident:

  A. [Officer Kubo] She-I asked her what happened, [Complainant] said my boyfriend beat me up.
  ..
  A. [Officer Kubo] I walked with [Complainant] further into the room.... [A]nd I asked her again, what do you mean.

  Q. [State] And at the time that you asked her, what do you mean, why did you ask her that question?
  A. I need to know what happened....
  ....
  Q. [State] ... How did [Complainant] respond to your question, what do you mean?
  A. She basically said that she got into an argument with her boyfriend and while inside the apartment-hotel room, rather, he punched
  her once in the face with enough force to her to fall onto the ground. While on the ground, he stomped on her right thigh.

The fact that Officer Kubo's investigatory questioning prompted Complainant's statements about the incident with Delos Santos strongly
supports an inference that Complainant was in a reflective state at the time she described the incident to Officer Kubo. Additionally, the
fact that a security officer was already waiting at the scene when Officer Kubo arrived, suggesting that order had been restored there, and
Officer Kubo's testimony that he needed to calm Complainant down when he asked her what happened suggests that Complainant's
statements were not spontaneous. We conclude that Complainant was not “under the stress of excitement” when she made her statements
to Officer Kubo. Machado, 109 Hawai„i at 451, 127 P.3d at 947.

That Complainant was in a state of agitation throughout Officer Kubo's investigation and there was a short interval of time between the
incident and the arrival of the officer at the scene does not mitigate against our conclusion. See State v. Moore, 82 Hawai„i 202, 221-22,
921 P.2d 122, 142-43 (1996) (holding that hearsay statement may qualify as excited utterance even though proponent has not established
short time interval between startling incident and statement). [Barkai Note: In Moore the time interval was 30 minutes or longer. The
victim, who was shot 5 times, was being driven around in a car by her husband, the shooter, before she made a statement to the police.
The Moore Court cited with approval cases from other jurisdictions that held under certain conditions statements could be considered
“excited utterances” 2-3 hours or more after the exciting event.]

The State argues in its answering brief that Machado is distinguishable from this case. We disagree. In Machado, a police sergeant arrived
on the scene after a neighbor called 911 because the neighbor heard the complaining witness and Machado screaming, things breaking,
and what sounded like someone calling for help. The sergeant stated that when he arrived, the complaining witness was “pretty hysterical
or pretty emotional.” A short time had passed between the time of the altercation and when the complaining witness made statements to
the sergeant. The complaining witness remained visibly upset as she described to the sergeant what had transpired. At trial, the circuit
court admitted into evidence the sergeant's testimony regarding what the complaining witness had told him, after the State cited to the
excited utterance exception to the hearsay rule.

Machado appealed, and this court affirmed the second circuit's judgment. Machado filed a writ of certiorari to the Hawaii Supreme Court,
which writ the court granted. The supreme court affirmed this court's decision, but corrected our holding that the second circuit did not
err in admitting as an excited utterance the sergeant's testimony regarding what the complaining witness told him on the date of the
incident. The supreme court held that the second circuit erred in admitting the statement as an excited utterance because the complaining
witness's statement “involved a lengthy narrative of the events of an entire evening,” “was detailed, logical, and coherent,” and “was not


Professor John Barkai, U.H. Law School - Evidence                                                Page - 32
delivered under ... life threatening physical conditions.” Nevertheless, the supreme court held that the error was harmless.

The facts underlying Machado were substantially similar to the facts in this case.

We hold that the family court was wrong and violated Delos Santos' rights to a fair trial and due process by admitting into evidence
Officer Kubo's testimony regarding Complainant's hearsay statements as excited utterances, under HRE 803(b)(2).
…
We conclude that without Officer Kubo's testimony about Complainant's hearsay statements, the State can not adduce substantial
evidence to sustain Delos Santos' conviction.

The Judgment of Conviction is reversed.

Dissenting Opinion of FUJISE, J.
I respectfully dissent. … While I agree that the more detailed statement made by the complaining witness (CW) to the police officer in this
case did not qualify for the “excited utterance” exception to the hearsay rule, I would hold that CW's initial statement that “my boyfriend
beat me up,” made upon the officer's arrival, was admissible under this exception. See Hilyer v. Howat Concrete Co., 578 F.2d 422, 424
(D.C.Cir.1978) (held bystander's statements, describing fatal accident in response to police officer's questions as he was “so excited” he
could not remember the officer's questions, admissible as excited utterances); see also Bosin v. Oak Lodge Sanitary District No. 1, 447
P.2d 285, 290 (Or.1968) (that statement was elicited by an inquiry is one factor to consider; “the trial judge must be given considerable
lee-way of decision”) (internal quotation marks and citation omitted) and United States v. Joy, 192 F.3d 761, 766 (7th Cir.1999) (“[A]
court need not find that the declarant was completely incapable of deliberative thought at the time he uttered the declaration.”).

I would further hold that admission of this initial statement was not a violation of the confrontation clauses of either the Hawai„i or United
States constitutions. The complaining witness did appear at trial and Defendant-Appellant Kenneth Delos Santos (Delos Santos) had the
opportunity to cross-examine her, notwithstanding her testimony that she could not remember the incident in question or her statements
to police. See United States v. Owens, 484 U.S. 554, 559-60 (1988) (the opportunity to cross examine is not denied due to witness's bad
memory); People v. Garcia-Cordova, 912 N.E.2d 280 (Ill.App.Ct.2009) (child victim was available for cross-examination, despite her
claimed loss of memory and lack of knowledge). See also State v. Fields, 115 Hawai„i 503, 523, 168 P.3d 955, 975 (2007) (quoting
Owens with approval: “It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his [or her] lack
of care and attentiveness, his [or her] poor eyesight, and even (what is often a prime objective of cross-examination, see 3A J. Wigmore,
Evidence § 995, pp. 931-932 (J. Chadbourn rev.1970)) the very fact that he [or she] has a bad memory.”) (internal quotation marks and
italics omitted).

Finally, in my view, even when the detailed statement given by the complaining witness is not considered, the remaining evidence, when
taken in the light most favorable to the government, is sufficient to support the conviction. The complaining witness's statement that “my
boyfriend beat me up,” her testimony that she and Delos Santos were living together at the time and the police officer's observations of
her swelling and marked chin, limp, and two-inch by two-inch circular red mark on her thigh were sufficient to support a conviction for
Abuse of Family or Household Member. Hawaii Revised Statutes § 709-906 (Supp.2007). However, as I cannot say that the introduction
of CW's subsequent, detailed statement was harmless, I would remand this case for a new trial. See State v. Chun, 93 Hawai„i 389, 394,
4 P.3d 523, 528 (App.2000) (where reasonable possibility that error contributed to conviction exists, conviction must be set aside).




Professor John Barkai, U.H. Law School - Evidence                                                   Page - 33
                          PRESENT SENSE IMPRESSION &
                         EXCITED UTTERANCE PROBLEMS
OCD = out of court declarant; PA = prosecuting attorney; W = witness

Are the following statements admissible?

1 Two-car auto accident on H-1. W & OCD in a third car. W will testify for D that OCD said as P's car passed
  them, "They must be drunk. If they keep speeding we are going to find them wrecked up ahead." Admissible?
  Why or why not?




3 To prove Rick killed the OCD, can the prosecutor introduce testimony of W, who was talking to OCD by
  phone, when OCD said to him, "Rick is here. I'll talk to you later." Admissible?


4 Wrongful death of a Hawaiian Electric lineman. Deceased OCD lineman put away cellular phone and said to
  co-worker, "I just told them at central to cut the power off to this line". He touches the line and is electrocuted.
  Admissible?


5 Car and motorcycle accident. P wants to offer the statement that a few minutes after the accident, he heard an
  unidentified person say to another unidentified person, "I'm sorry, I didn't see him." Admissible?


6 Driver OCD says "Oh my God! The wheel is locked!" Can passenger W testify to that? Admissible?


7 Five weeks after a robbery, the robbery victim sees a picture in the business section (new promotions) of the
  Sunday newspaper and screams "That's the man! That's the man!" Admissible?

8 When P slips and falls on junk outside of a store, a store clerk, who saw the fall says, "Let me help you up. That
  junk has been here for several days." Admissible.

9 When P comes home at night, P tells spouse, "My Sure-track shoes couldn't keep me from falling today." Can
  P introduce this testimony using the spouse as W?




Professor John Barkai, U.H. Law School - Evidence                                 Page - 34
MUTUAL LIFE INS. CO. OF NEW YORK v. HILLMON
145 U.S. 285 (1892)

   Statement by Mr. Justice Gray.

    On July 13, 1880, Sallie E. Hillmon, a citizen of Kansas, brought an action against the Mutual Life Insurance Company,
a corporation of New York, on a policy of insurance, dated December 10, 1878, on the life of her husband, John W. Hillmon,
in the sum of $10,000, payable to her within 60 days after notice and proof of his death. On the same day the plaintiff
brought two other actious,--the one against the New York Life Insurance Company, a corporation of New York, on two
similar policies of life insurance, dated, respectively, November 30, 1878, and December 10, 1878, for the sum of $5,000
each; and the other against the Connecticut Mutual Life Insurance Company, a corporation of Connecticut, on a similar
policy, dated March 4, 1879, for the sum of $5,000.

   In each case the declaration alleged that Hillmon died on March 17, 1879, during the continuance of the policy, but that
the defendant, though duly notified of the fact, had refused to pay the amount of the policy, or any part thereof; and the
answer denied the death of Hillmon, and alleged that he, together with John H. Brown and divers other persons, on or before
November 30, 1878, conspiring to defraud the defendant, procured the issue of all the policies, and afterwards, in March
and April, 1879, falsely pretended and represented that Hillmon was dead, and that a dead body which they had procured
was his, whereas in reality he was alive and in hiding.

   At the trial plaintiff introduced evidence tending to show that on or about March 5, 1879, Hillmon and Brown left
Wichita, in the state of Kansas, and traveled together through southern Kansas in search of a site for a cattle ranch; that on
the night of March 18th, while they were in camp at a place called 'Crooked Creek,' Hillmon was killed by the accidental
discharge of a gun; that Brown at once notified persons living in the neighborhood, and that the body was thereupon taken
to a neighboring town, where, after an inquest, it was buried. The defendants introduced evidence tending to show that the
body found in the camp at Crooked creek on the night of March 18th was not the body of Hillmon, but was the body of one
Frederick Adolph Walters. Upon the question whose body this was there was much conflicting evidence, including
photographs and descriptions of the corpse, and of the marks and scars upon it, and testimony to its likeness to Hillmon and
to Walters.

    The defendants introduced testimony that Walters left his home at Ft. Madison, in the state of Iowa, in March, 1878, and
was afterwards in Kansas in 1878, and in January and February, 1879; that during that time his family frequently received
letters from him, the last of which was written from Wichita; and that he had not been heard from since March, 1879. The
defendants also offered the following evidence:

   Elizabeth Rieffenach testified that she was a sister of Frederick Adolph Walters, and lived at Ft. Madison; and thereupon,
as shown by the bill of exceptions, the following proceedings took place:

    "Witness further testified that she had received a letter written from Wichita, Kansas, about the 4th or 5th day of March,
1879, by her brother Frederick Adolph; that the letter was dated at Wichita, and was in the handwriting of her brother; that
she had searched for the letter, but could not find the same, it being lost; that she remembered and could state the contents
of the letter."

   "Thereupon the defendants' counsel asked the question, 'State the contents of that letter;'' to which the plaintiff objected,
on the ground that the same is incompetent, irrelevant, and hearsay. The objection was sustained, and the defentants duly
excepted. The following is the letter as stated by witness:


Professor John Barkai, U.H. Law School - Evidence                                         Page - 35
                                                                                                             Wichita, Kansas,
March 4th or 5th or 3d or 4th,--I don't know,--1879.

Dear Sister and All: I now in my usual style drop you a few lines to let you know that I expect to leave Wichita on or about
March the 5th with a certain Mr. Hillmon, a sheep trader, for Colorado, or parts unknown to me. I expect to see the country
now. News are of no interest to you, as you are not acquainted here. I will close with compliments to all inquiring friends.
Love to all.
                                                                                                      I am truly your brother,
                                                                                             FRED. ADOLPH WALTERS.'

                                                            ***

   The evidence that Walters was at Wichita on or before March 5th, and had not been heard from since, together with the
evidence to identify as his the body found at Crooked creek on March 18th, tended to show that he went from Wichita to
Crooked creek between those dates. Evidence that just before March 5th he had the intention of leaving Wichita with
Hillmon would tend ... show that he went from Wichita to Crooked creek with Hillmon. Letters from him to his family and
his betrothed were the natural, if not the only attainable, evidence of his intention.

                                                            ***

   The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence
that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that
intention would be. After his death these can hardly be any other way of proving it, and while he is still alive his own
memory of his state of mind at a former time is no more likely to be clear and true than a bystander's recollection of what
he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a
suspicion of misrepresentation.

   The letters in question were competent not as narratives of facts communicated to the writer by others, nor yet as proof
that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show
that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did
go and that he went with Hillmon than if there had been no proof of such intention. In view of the mass of conficting
testimony introduced upon the question whether it was the body of Walters that was found in Hillmon's camp, this evidence
might properly influence the jury in determining that question.

   The rule applicable to this case has been thus stated by this court: 'Wherever the bodily or mental feelings of an
individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those
expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other
testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As
independent, explanatory, or corroborative evidence it is often indispensable to the due administration of justice. Such
declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth
or falsity is an inquiry for the jury.' Insurance Co. v. Mosley, 8 Wall. 397, 404, 405.

                                                            ***

   Upon principle and authority, therefore, we are of opinion that the two letters were competent evidence of the intention
of Walters at the time of writing them, which was a material fact bearing upon the question in controversy; and that for the
exclusion of these letters, as well as for the undue restriction of the defendants' challenges, the verdicts must be set aside,
and a new trial had.

Professor John Barkai, U.H. Law School - Evidence                                        Page - 36
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook

Rule 803(3). Then Existing Mental, Emotional, or Physical Condition


        Example—Inadmissible. "Here Aquarium would like to have had Mr. Murray testify to Lerner's statement of
        memory, that is, Lerner's recollection of the telephone conversation, in order to prove the fact remembered, i.e., the
        contents of that conversation. This is among the type of testimony that the final phrase of Rule 803(3) was designed
        to preclude." Marshall v. Commonwealth Aquarium, 611 F.2d 1, 5 (1st Cir.1979).
        Example—Inadmissible. "Ms. Joe's statement to Dr. Smoker, though indicating her state of mind, also included
        a statement of why she was afraid (i.e., because she thought her husband might kill her). This portion of Ms.
        Joe's statement is clearly a 'statement of memory or belief expressly excluded by the Rule 803(3) exception."
        United States v. Joe, 8 F.3d 1488, 1492-93 (10th Cir.1993).

        Example—Inadmissible. "Turolla's e-mails contain hearsay statements expressing his then existing state of mind
        (i.e., 'I hate to be in this predicament;' I am at my wits end;' I am concerned for the future') as well as assertions of
        why Turolla had these feelings (i.e., descriptions of conversations, interactions, incidents, and problems he was
        allegedly having with Plaintiff). The statements explaining why Turolla had these feelings are expressly outside the
        state-of-mind exception." McInnis v. Fairfield Communities, Inc., 458 F.3d 1129, 1143 (10th Cir. 2006).

        Example—Partly admissible, partly inadmissible. Prosecution for sexual abuse of 11-year-old girl. Over hearsay
        objections, the mother of the girl was permitted to testify to the girl's account of the crime after the girl awoke her in
        the middle of the night with a facial laceration. "Limited portions of the mother's testimony are based upon D.D.'s
        statements concerning her physical state—she was bleeding because Joseph DeMarce hit and tried to rape her.
        Those statements were properly admitted. This court concludes that the remaining testimony of the mother, however,
        does not recount statements of D.D.'s present condition, but states D.D.'s memory. The testimony should not have
        been admitted under Rule 803(3)." United States v. DeMarce, 564 F.3d 989, 996 (8th Cir.2009).

Rule 803(4). Statements for Purposes of Medical Diagnosis or Treatment

        Example—Admissible. Statement by sexually abused child to doctor identifying father or stepfather as abuser.
        United States v. Longie, 984 F.2d 955, 959 (8th Cir.1993); United States v. George, 960 F.2d 97, 99 (9th Cir.1992);
        United States v. Renville, 779 F.2d 430, 435-36 (8th Cir.1985).

        Example—Admissible. Statements by child victim of sexual assault to medical personnel; court rejected argument
        that reliability of statements was undermined because child, on account of age, was not able to understand medical
        relationship and necessity of telling truth. United States v. Pacheco, 154 F.3d 1236, 1240-41 (10th Cir.1998). Accord,
        United States v. Edward J., 224 F.3d 1216, 1219-20 (10th Cir.2000); United States v. Norman T., 129 F.3d 1099,
        1105-06 (10th Cir.1997) (five-year-old child), cert. denied, 523 U.S. 1031, 118 S.Ct. 1322, 140 L.Ed.2d 485 (1998).
        Contra, United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir.2000) ("[I]t must be shown that the child understands
        the `medical significance of being truthful,' i.e., the role of the medical health professional in trying to help or heal her,
        which triggers the motivation to be truthful."); Olesen v. Class, 164 F.3d 1096, 1098 (8th Cir.1999).

Example—Admissible. "While the district court was correct that Willingham's statements about a firearm being pointed at her
were not relevant to her physical injuries, it is clear from the physicians' notes that Willingham was also seeking treatment for
emotional trauma. Willing-ham's statements to her doctors indicate that her emotional trauma stemmed, in part, from having a
firearm pointed at her; therefore, these statements were relevant to her diagnosis and treatment." Willingham v. Crooke, 412 F.3d 553,
562 (4th Cir.2005).




Professor John Barkai, U.H. Law School - Evidence                                             Page - 37
                          PRESENT STATE OF MIND OR PHYSICAL
                                CONDITION PROBLEMS
                                                FRE803(3) / HRE803(b)(3)

1AAfter the accident, Tim Brown ran over to try and help Billy Boy. May Tim Brown testify to each of the following
       statements?

   (a) Barbara Green, Billy Boy's mother, immediately yelled out, "Help, Billy's been hit by a truck. Why was the truck going
   so fast?"

   (b) About one or two minutes after the accident Billy Boy stated in a calm voice, "Mother, my leg feels broken. I think
   the truck driver didn't see me."

   (c) When the ambulance driver arrives fifteen minutes later, Barbara Green in an excited voice tells him, "He was hit
   by that truck (pointing). It didn't stop to let Billy cross the street. Billy says his leg feels broken."

2. OCD says,
   A) "I am going to Crooked Creek."
       Can it be used to prove your intent to go to Crooked Creek.
   B) "I am afraid of Dr. Shepard."
       Can it be used to prove she (murder victim) was afraid of the doctor in the homicide case against the doctor?

3. A) "I am going to Crooked Creek."
   B) "I am going to Crooked Creek with Hillmon."
   C) "I am going with Frank."
       Can it be used to prove you went there?

4. "I am going to Crooked Creek with Hillmon."
        Can it be used to prove Hillmon went there?

5. A) "I went to Crooked Creek with Hillmon."
       Can it be used to prove you went there?
   B) "Dr. Shepard has poisoned me."
       Can it be used to prove Shepard poisoned the OCD?

6. "I am the President of the U.S." Admissible on issue of sanity of the declarant?

7. In a case about a contested will, Son sues because he was left out of the will. To prove Testator intentionally left Son
   out of the will, W will testify that Testator said:
   A) "My son robbed me blind every chance he got."
   B) "I intend to leave nothing to my son." (said 2 weeks before he signed the will)
   C) "I left my son out of the will." (said 2 weeks after he signed the will)
   Are these statements admissible? Are they hearsay or hearsay exceptions?




Professor John Barkai, U.H. Law School - Evidence                                      Page - 38
                                  MEDICAL DIAGNOSIS OR TREATMENT PROBLEMS
                                                               FRE803(3)&(4) / HRE803(b)(3)&(4)


  Plaintiff is in an accident at work. Immediately thereafter he walks across the street to a lawyer who has a doctor who works with him. As the lawyer drafts the
complaint, the doctor examines the plaintiff. From this office, the plaintiff calls his wife and tells her what happened. She calls his personal doctor and tells him
what happened. The personal doctor prescribes some medicine for his pain. For the next two years the plaintiff tells his friends about the accident.

   Which of the following statements are admissible when they are made to the various people listed on the chart below?

                 Statements made by plaintiff to:                     Doctor working            Wife         Personal Doctor         Friends
                                                                      with the Lawyer
                 a) I was feeling dizzy.


                 b) I tried to throw the switch.


                 c) It was out of order.


                 d) It hurt my back.


                 e) I have pain in it now.


                 f) I have a bruise on my leg


                 g) I injured my back 5 years ago too.




Professor John Barkai, U.H. Law School - Evidence                                       Page - 39
   PAST RECOLLECTION RECORDED PROBLEMS

FACTS:          While witness (W) was walking down the street, he saw an accident and
                immediately wrote in his note pad, "The blue car went through the red light."

1 W is not available for the trial, but his notes are. Can the notes be offered into evidence as
  past recollection recorded?

2 W is available at trial, but does not remember. Are the notes admissible? Under what
  conditions? Can the Proponent of the evidence introduce the notes? Can the Opponent
  introduce the notes?

3 Driver of the blue car said to W, "I ran the red light." Is the statement admissible if it's
  included in W's notes above?

4 Pedestrian said to W, "I saw the blue car run the red light." Is that statement admissible if
  it is included in the notes?

5 W is actually a reporter for the newspaper. He calls his office and dictates notes regarding
  the accident to his secretary. Are the notes, as transcribed by the secretary, admissible?

7 Assume that W cannot remember the details of the accident at trial. Assume further that
  W did not dictate notes, but he did tell his secretary about the accident. The secretary does
  remember the conversation with W about the accident. Is the secretary's testimony
  admissible?

8 Jane is prosecuted for murder after allegedly participating in a drug deal that went sour. At
  trial, the government informant, Iggy, testified that Jane told him to call a certain telephone
  number for the drugs. That phone number linked Jane to the victim. Iggy wrote down the
  phone number two hours after learning about it. Iggy has taken too many drugs. He can't
  remember the phone number at trial. The paper with the number on it does not refresh his
  memory. Can the prosecutor introduce the paper?

9 What questions are necessary to lay the foundation for the notes under any of the above
  situations in which the notes would be admissible?




Professor John Barkai, U.H. Law School - Evidence                                     Page - 40
PALMER V. HOFFMAN, 318 U.S. 109 (1943)
         Mr. Justice DOUGLAS delivered the opinion of the Court.

          This case arose out of a grade crossing accident which occurred in Massachusetts. Diversity of citizenship
brought it to the federal District Court in New York.
                                                          ***
          The accident occurred on the night of December 25, 1940. On December 27, 1940, the engineer of the train,
who died before the trial, made a statement at a freight office of petitioners where he was interviewed by an assistant
superintendent of the road and by a representative of the Massachusetts Public Utilities Commission.... This statement
was offered in evidence by petitioners under ... 28 U.S.C.A. 695.[FN1] They offered to prove (in the language of the
Act) that the statement was signed in the regular course of business, it being the regular course of such business to make
such a statement. Respondent's objection to its introduction was sustained.

         We agree with the majority view below that it was properly excluded.

          We may assume that if the statement was made 'in the regular course' of business, it would satisfy the other
provisions of the Act. But we do not think that it was made 'in the regular course' of business within the meaning of the
Act. The business of the petitioners is the railroad business. That business like other enterprises entails the keeping
of numerous books and records essential to its conduct or useful in its efficient operation. Though such books and
records were considered reliable and trustworthy for major decisions in the industrial and business world, their use in
litigation was greatly circumscribed or hedged about by the hearsay rule-- restrictions which greatly increased the time
and cost of making the proof where those who made the records were numerous. 5 Wigmore, Evidence (3d ed., 1940)
   1530. It was that problem which started the movement towards adoption of legislation embodying the principles of
the present Act.... And the legislative history of the Act indicates the same purpose.

          In short, it is manifest that in this case those reports are not for the systematic conduct of the enterprise as a
railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like these reports are
calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.

         It is, of course, not for us to take these reports out of the Act if Congress has put them in. But there is nothing
in the background of the law on which this Act was built or in its legislative history which suggests for a moment that
the business of preparing cases for trial should be included.

          The several hundred years of history behind the Act indicate the nature of the reforms which it was designed
to effect. It should of course be liberally interpreted so as to do away with the anachronistic rules which gave rise to its
need and at which it was aimed. But 'regular course' of business must find its meaning in the inherent nature of the
business in question and in the methods systematically employed for the conduct of the business as a business.

         Affirmed.

FN1 "In any court of the United States and in any court established by Act of Congress, any writing or record, whether
in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence,
or event, shall be admissible as evidence of said act, transaction, occurrence, or event, if it shall appear that it was made
in the regular course of any business, and that it was the regular course of such business to make such memorandum or
record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other
circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker,
may be shown to affect its weight, but they shall not affect its admissibility. The term 'business' shall include business,
profession, occupation, and calling of every kind."




         Professor John Barkai, U.H. Law School - Evidence                                                     Page - 41
JOHNSON v. LUTZ, 170 N.E. 517 (1930)                                                                     RCA
      This action is to recover damages for the wrongful death of the plaintiff's intestate, who was killed
when his motorcycle came into collision with the defendants' truck at a street intersection. There was a
sharp conflict in the testimony in regard to the circumstances under which the collision took place. A
policeman's report of the accident filed by him in the station house was offered in evidence by the
defendants under section 374-a of the Civil Practice Act, and was excluded. The sole ground for reversal
urged by the appellants is that said report was erroneously excluded. That section reads: 'Any writing or
record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act,
transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction,
occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and
that it was the regular course of such business to make such memorandum or record at the time of such act,
transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the
making of such writing or record, including lack of personal knowledge by the entrant or maker, may be
shown to affect its weight, but they shall not affect its admissibility. The term business shall include
business, profession, occupation and calling of every kind.'

      Prior to the decision in the well-known case of Vosburgh v. Thayer, 12 Johns. 461, decided in 1815,
shopbooks could not be introduced in evidence to prove an account. The decision in that case established
that they were admissible where preliminary proof could be made that there were regular dealings between
the parties; that the plaintiff kept honest and fair books; that some of the articles charged had been delivered;
and that the plaintiff kept no clerk. At that time it might not have been a hardship to require a shopkeeper
who sued to recover an account to furnish the preliminary proof required by that decision. Business was
transacted in a comparatively small way, with few, if any, clerks. Since the decision in that case, it has
remained the substantial basis of all decisions upon the question in this jurisdiction prior to the enactment
in 1928 of section 374-a, Civil Practice Act.

     Under modern conditions, the limitations upon the right to use books of account, memoranda, or
records, made in the regular course of business, often resulted in a denial of justice, and usually in
annoyance, expense, and waste of time and energy. A rule of evidence that was practical a century ago had
become obsolete. The situation was appreciated, and attention was called to it by the courts and
text-writers. Woods Practice Evidence (2d Ed.) 377; 3 Wigmore on Evidence (1923) s 1530.

     The report of the Legal Research Committee of the Commonwealth Fund, published in 1927, by the
Yale University Press, under the title, 'The Law of Evidence--Some Proposals for Its Reform,' dealt with the
question in chapter 5, under the heading, 'Proof of Business Transactions to Harmonize with Current
Business Practice.' That report, based upon extensive research, pointed out the confusion existing in
decisions in different jurisdictions. It explained and illustrated the great need of a more practical, workable,
and uniform rule, adapted to modern business conditions and practices. The chapter is devoted to a
discussion of the pressing need of a rule of evidence which would 'give evidential credit to the books upon
which the mercantile and industrial world relies in the conduct of business.' At the close of the chapter, the
committee proposed a statute to be enacted in all jurisdictions. In compliance with such proposal, the
Legislature enacted section 374-a of the Civil Practice Act in the very words used by the committee.

     It is apparent that the Legislature enacted section 374-a to carry out the purpose announced in the
report of the committee. That purpose was to secure the enactment of a statute which would afford a more
workable rule of evidence in the proof of business transactions under existing business conditions.




Professor John Barkai, U.H. Law School - Evidence                                          Page - 42
     In view of the history of section 374-a and the purpose for which it was enacted, it is apparent that it
was never intended to apply to a situation like that in the case at bar. The memorandum in question was not
made in the regular course of any business, profession, occupation, or calling. The policeman who made
it was not present at the time of the accident. The memorandum was made from hearsay statements of third
persons who happened to be present at the scene of the accident when he arrived. It does not appear
whether they saw the accident and stated to him what they knew, or stated what some other persons had told
them.

     The purpose of the Legislature in enacting section 374-a was to permit a writing or record, made in the
regular course of business, to be received in evidence, without the necessity of calling as witnesses all of
the persons who had any part in making it, provided the record was made as a part of the duty of the person
making it, or on information imparted by persons who were under a duty to impart such information. The
amendment permits the introduction of shopbooks without the necessity of calling all clerks who may have
sold different items of account. It was not intended to permit the receipt in evidence of entries based upon
voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation
thereto. It was said, in Mayor, etc., of New York City v. Second Ave. R. Co., 102 N. Y. 572, at page 581,
7 N. E. 905, 909, 55 Am. Rep. 839: 'It is a proper qualification of the rule admitting such evidence that the
account must have been made in the ordinary course of business, and that it should not be extended so as
to admit a mere private memorandum, not made in pursuance of any duty owing by the person making it,
or when made upon information derived from another who made the communication casually and
volumtarily, and not under the sanction of duty or other obligation.'

     An important consideration leading to the amendment was the fact that in the business world credit is
given to records made in the course of business by persons who are engaged in the business upon
information given by others engaged in the same business as part of their duty.

      'Such entries are dealt with in that way in the most important undertakings of mercantile and industrial
life. They are the ultimate basis of calculation, investment, and general confidence in every business
enterprise. Nor does the practical impossibility of obtaining constantly and permanently the verification
of every employee affect the trust that is given to such books. It would seem that expedients which the
entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice.
When it is a mere question of whether provisional confidence can be placed in a certain class of statements,
there cannot profitably and sensibly be one rule for the business world and another for the court-room. The
merchant and the manufacturer must not be turned away remediless because the methods in which the
entire community places a just confidence are a little difficult to reconcile with technical judicial scruples
on the part of the same persons who as attorneys have already employed and relied upon the same methods.
 In short, courts must here cease to be pedantic and endeavor to be practical.' 3 Wigmore on Evidence
(1923) s 1530, p. 278.

     The Legislature has sought by the amendment to make the courts practical. It would be unfortunate
not to give the amendment a construction which will enable it to cure the evil complained of and
accomplish the purpose for which it was enacted. In construing it, we should not, however, permit it to be
applied in a case for which it was never intended.

     The judgment should be affirmed, with costs.




Professor John Barkai, U.H. Law School - Evidence                                        Page - 43
                                                    BUSINESS RECORDS
                                  RECORDS OF REGULARLY CONDUCTED ACTIVITY
                                                   803(6)
                                 HAWAII                                              FEDERAL

   803(b)(6) Records of regularly conducted activity. A          803(6) Records of regularly conducted
   memorandum, report, record, or data compilation, in any       activity. A memorandum, report, record, or data
   form, of acts, events, conditions, opinions, or diagnoses,    compilation, in any form, of acts, events,
   made in the course of a regularly conducted activity, at or   conditions, opinions, or diagnoses, made at or
   near the time of the acts, events, conditions, opinions, or   near the time by, or from information transmitted
   diagnoses, as shown by the testimony of the custodian or      by, a person with knowledge, if kept in the
   other qualified witness, unless the sources of information    course of a regularly conducted business
   or other circumstances indicate lack of trustworthiness.      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, 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.




Professor John Barkai, U.H. Law School - Evidence                    Page - 44
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook


R803(6) Records of Regularly Conducted Activity
"Lack of trustworthiness" proviso. Courts are likely to invoke the "lack of trustworthiness" proviso with
regard to documents prepared in anticipation of litigation, or under circumstances similarly suggesting a
motive to misrepresent.

        Example—Inadmissible. "The incident report was prepared by a non-witness Hardee's employee
        and contained not only a description of the condition of the parking lot as dry, not wet or oily, but also
        a statement attributed to a 'friend' of Mrs. Scheerer that the cause of the accident was Mrs.
        Scheerer's 'slick shoes.' * * * We hold the incident report was not admissible as a business record
        under Fed.R.Evid. 803(6) because the source of the information contained therein was never
        identified at trial. * * * In the absence of any evidence about the source of that information, we cannot
        test its reliability or trustworthiness. * * * In addition, the incident report was inadmissible as a
        business record under Fed. R. Evid. 803(6) because it had been prepared in anticipation of
        litigation," Scheerer v. Hardee's Food Systems, Inc., 92 F.3d 702, 706 (8th Cir.1996).

        Example—Inadmissible. "The report is no more trustworthy because Geary prepared it than if
        Underwriters had done so. Whether Underwriters compiled the report as part of an internal
        investigation with in-house employees or whether Underwriters hired an outside investigator to
        prepare the report, the conclusion remains that the primary motive for initially preparing the report
        was to prepare for litigation. * * * Litigants cannot evade the trustworthiness requirement of Rule
        803(6) by simply hiring an outside party to investigate an accident and then arguing that the report
        is a business record because the investigator regularly prepares such reports as part of his
        business." Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir.2000).

        Example—Inadmissible. "Clearly, the report in this case was not kept in the course of a regularly
        conducted business activity, but rather was specially prepared at the behest of the FBI and with the
        knowledge that any information it supplied would be used in an ongoing criminal investigation. * * *
        In finding this report inadmissible under Rule 803(6), we adhere to the well-established rule that
        documents made in anticipation of litigation are inadmissible under the business records
        exception." United States v. Blackburn, 992 F.2d 666, 670 (7th Cir.1993), cert. denied, 510 U.S. 949,
        114 S.Ct. 393, 126 L.Ed.2d 341 (1993).

R803(8) Public Records and Reports
        Lack of trustworthiness proviso. Reports offered under Rule 803(8)(C) are presumed admissible;
        the burden is on the party opposing the admission of the report to prove its untrustworthiness. Beech
        Aircraft Corp. v. Rainey, 488 U.S. 153, 167, 109 S.Ct. 439, 448, 102 L.Ed.2d 445 (1988). Four factors are
        frequently cited as bearing on the determination of trustworthiness: "(1) the timeliness of the investiga-
        tion; (2) the investigator's skill or experience; (3) whether a hearing was held; and (4) possible bias when
        reports are prepared with a view to possible litigation." Id., 488 U.S. at 168 n. 11, 109 S.Ct. at 449 n.
        11; Advisory Committee's Note to Rule 803(8).


        Example—Inadmissible. "The inference of doctoring, even in the case of the unamended version
        of the January 6 minutes, is strong, and the public-records exception to the hearsay rule is inapplicable
        when the `circumstances indicate lack of trustworthiness.' * * * The provision is tailor-made for a case
        in which the records are controlled by the defendants themselves rather than by clerks assumed to be
        disinterested." United States v. Spano, 421 F.3d 599, 604 (7th Cir. 2005).




Professor John Barkai, U.H. Law School - Evidence                                            Page - 45
           BUSINESS RECORDS PROBLEMS
    RECORDS OF REGULARLY CONDUCTED ACTIVITY
1   A police officer took measurements at an auto accident scene of the Blue Car v. Yellow Car
    auto accident. However, the officer cannot remember the measurements at trial. What can be
    done at trial to get evidence about the measurements into evidence?



2   Hawaii Liquor Commission v. Jones. To prove that Cut-Rate Liquors had Thunderbird wine in
    stock on April 5th, may the plaintiff introduce inventory records made on March 31st? If yes,
    who could testify about the inventory records?



3   After a pedestrian, Mrs. P, was killed by bus, the bus driver was interviewed by the bus driver's
    supervisor. Driver signed a statement at the end of the interview in which he denied that he was
    negligent. The driver died before trial. Can bus company introduce the driver's statement in the
    trial of P's Estate v. The Bus Company?



4   A hospital record indicates that "patient suffered a broken leg and severe shock when hit by the
    car that went through a red light." Is the hospital record admissible?


5   Auto accident - Blue Car v. Yellow Car. Defendant, driver of the yellow car, wants to offer into
    evidence the police accident report written by Officer Jones on the day of the accident. The
    officer arrived 10 minutes after the accident. Is the report admissible?



6   Are the following parts of the Officer Jones' report admissible?
       "A woman said that she had seen everything and that the blue car ran the red light."



7   Officer Jones' report also said:
       "The driver of the yellow car told me that the driver of the blue car ran the light."



8   Officer Jones' report also said:
       "The driver of the blue car said that the sun was in his eyes."


Professor John Barkai, U.H. Law School - Evidence                                 Page - 46
9   Officer Jones' report also said:
       "The driver of the blue car said that he had been hurrying to get across town."


10 Officer Jones' report also said:
      "The driver of the yellow car told me that she had a bad headache."


11 Officer Jones' report also said:
      "Officer Smith told me that she was on the scene at the time of the accident. She said she
      saw everything. She said the blue car ran the light."


12 Officer Jones' report also said:
      "Officer Lee told me that he heard the crash and arrived within 30 seconds, and that the
      driver of the yellow car said that the blue car had run the light.'


13 Officer Jones' report also said:
      "A fellow officer Smith told me that she heard the crash and arrived within 30 seconds. A
      woman told her that she had seen everything, and that the blue car had run the light."


14 Issue: whether cargo in a Matson container got contaminated while in transport. It is normal
   business practice to clean and inspect containers before putting cargo inside, and to put
   information about the cleaning and inspecting into a report. The record in this case does not
   indicate any cleaning and inspection. Is the record admissible?




Professor John Barkai, U.H. Law School - Evidence                               Page - 47
STATE v. OFA, 9 Haw.App. 130, 828 P.2d 813 (1992)
    Defendant Moonga Ofa (Defendant) appeals his bench trial conviction of driving under the influence of intoxicating
liquor (DUI) in violation of Hawaii Revised Statutes (HRS) s 291-4(a) (1985). Defendant contends that the district court
abused its discretion by admitting into evidence the test result obtained from a breath-testing instrument, an intoxilyzer
model 4011AS bearing Serial No. 102374 (Intoxilyzer), because the State of Hawaii (State) failed to lay a proper
foundation for its admission. We agree. Accordingly, we reverse the DUI conviction and remand the case with
instructions to enter a judgment of acquittal for Defendant.
                           ***
    On June 17, 1990, Defendant was arrested for DUI. At the police station, Defendant consented to a breath test. The
breath test administered on the Intoxilyzer indicated a blood alcohol concentration of 0.12 percent.

    At trial, Honolulu Police Department (HPD) criminalist Gilbert Chang (Chang), a certified intoxilyzer
operator-supervisor, testified that (1) certified operator-supervisors periodically test or calibrate the HPD's intoxilyzers for
accuracy; (2) the testing is done with two simulator solutions or reference samples of different alcohol concentration as
required by "Title 11," which is the State Department of Health's Rules for the Testing of Blood, Breath and Other Bodily
Substances for Alcohol Concentration (Rules); (3) testing by a beam attenuator is also conducted; (4) after completion
of the testing, the operator-supervisor enters into the record book or log book, which is kept at Chang's desk and is under
Chang's control, the date and results of the testing for accuracy.

   The court admitted into evidence, over Defendant's objection, a copy of a page of the record book (Log) that Chang
brought into court. The Log showed that on May 31, 1990, and June 28, 1990, the Intoxilyzer had been tested for accuracy
by a beam attenuator and two simulator solutions of 0.05 percent and 0.30 percent alcohol concentration, respectively.
Based on the initials "JW" on the Log, Chang testified that John Wadahara (Wadahara) had tested the Intoxilyzer for
accuracy on those dates. Chang stated that the Log indicated that the Intoxilyzer was operating accurately on May 31 and
June 28, 1990. Wadahara did not testify in the case.

    The court admitted the Intoxilyzer test result into evidence over Defendant's objection. The court found Defendant
guilty of DUI, commenting "had there been no [breath] test in this case, I would have been inclined to find [Defendant] not
guilty."
                         ***
    In State v. Souza, 6 Haw.App. 554, 559, 732 P.2d 253, 257 (1987), we concluded: [I]n meeting the foundational
prerequisites for the admission of the Intoxilyzer test result there must be a showing of strict compliance with those
provisions of the Rules which have a direct bearing on the validity and accuracy of the test result. [Footnote omitted.] ...

    Defendant contends that the foundational prerequisite was not met because (1) the Log itself and Chang's testimony
regarding Wadahara's testing of the Intoxilyzer constituted hearsay and were improperly admitted into evidence and (2)
the admission of such evidence violated Defendant's constitutional rights of confrontation. We disagree....

   The information on the Log was clearly hearsay. However, the court admitted it under the public records and reports
exception to the hearsay rule set forth in Hawaii Rules of Evidence (HRE) Rule 803(b)(8)(B)...

   The Log falls within the HRE Rule 803(b)(8)(B) exception. It constitutes a record or report of a public agency, the
HPD. It includes matters observed and reported by a HPD operator-supervisor who tested the Intoxilyzer for accuracy as
required by provisions of the Rules. The only issue is whether the Log is excludable from the public records and reports
exception to the hearsay rule as "matters observed by ... law enforcement personnel" in a criminal case.

    Federal Rules of Evidence (Fed.R.Evid.) 803(8)(B) is identical to HRE Rule 803(b)(8)(B). In construing the exclusion
provision of Fed.R.Evid. 803(8)(B), the Court of Appeals of the Second Circuit took a very restrictive view, holding that
in criminal cases reports of public agencies setting forth matters observed by police officers and other law enforcement
personnel and reports of public agencies setting forth factual findings resulting from investigations made pursuant to
authority granted by law cannot satisfy the standards of any hearsay exceptions if those reports are sought to be introduced
against the accused. United States v. Oates, 560 F.2d 45, 84 (2d Cir.1977). The Oates restrictive view has been
criticized....


Professor John Barkai, U.H. Law School - Evidence                                                      Page - 48
    The Court of Appeals of the Ninth Circuit concluded that "the exclusionary provisions of Rule 803(8)(B) were
intended to apply to observations made by law enforcement officials at the scene of a crime or the apprehension of the
accused and not 'records of routine, nonadversarial matters' made in a nonadversarial setting." United States v. Wilmer,
799 F.2d 495, 500-01 (9th Cir.1986) (quoting United States v. Orozco, 590 F.2d 789, 793 (9th Cir.), cert. denied, 442 U.S.
920, 99 S.Ct. 2845, 61 L.Ed.2d 288 (1979)). Wilmer held that, in a DUI case, the calibration report of a breathalyzer
maintenance operator is admissible under Fed.R.Evid. 803(8)(B). See United States v. DeWater, 846 F.2d 528 (9th
Cir.1988) (in a DUI case, the intoxilyzer test results were admissible under the public records and reports exception to the
hearsay rule).

    We opt to follow the rationale in the Orozco, Wilmer, and DeWater cases. Clearly, Wadahara's report in the Log of
his testing of the Intoxilyzer for accuracy on the specified dates constituted a record of routine, nonadversarial matters
made in a nonadversarial setting. See State v. Smith, 66 Or.App. 703, 707, 675 P.2d 510, 512 (1984) (certificates of
breathalyzer inspections relate to "the routine function of testing breathalyzer equipment to insure that it gives accurate
readings").

    Moreover, based on the record, we conclude that neither the sources of information nor other circumstances indicate
lack of trustworthiness of the information reported in the Log. As indicated above, the testing or calibration of the
Intoxilyzer by Wadahara was routine and nonadversarial. Wadahara had no personal stake in the outcome of individual
cases. His duty was to test the Intoxilyzer for accuracy and report the results in the Log. See DeWater, 846 F.2d at 530.

    As the custodian of the Log and a certified intoxilyzer operator- supervisor, Chang explained what appeared on the Log
and what the written items meant. Such testimony did not constitute hearsay. Based on the Log and other exhibits in
evidence, Chang gave his opinion testimony regarding the accuracy of the Intoxilyzer. Such opinion testimony was
allowable under HRE Rule 702.

    Accordingly, the district court did not abuse its discretion in admitting the Log into evidence and denying Defendant's
objections to Chang's testimony.
                           ***
    The public records and reports exception to the hearsay rule is firmly rooted in our jurisprudence....        We
therefore conclude that there has been no violation of Defendant's constitutional rights of confrontation.
                           ***
    We conclude that the foundation laid for the admission of the Intoxilyzer test result into evidence was insufficient
[because the State failed to show the "known temperature" of the simulator solutions used to test the Intoxilyzer].
    ***
    The district court's admission of the Intoxilyzer test result into evidence compels a vacation of the DUI conviction.
                           ***
    We conclude that the district court (1) did not abuse its discretion in admitting the Log and Chang's testimony into
evidence ... The court, however, abused its discretion in admitting the Intoxilyzer test result into evidence because the
foundation laid for its admission was insufficient.




Professor John Barkai, U.H. Law School - Evidence                                                   Page - 49
STATE v. JHUN, 83 Hawai'i 472, 927 P.2d 1355 (1996)
    NAKAYAMA, Justice.
    After a jury trial, defendant-appellant Manuel Jhun (Jhun) was found guilty of assault in the second degree in violation
of Hawai'i Revised Statutes (HRS) s 707-711(1)(d) (1993). Through an opinion filed on December 5, 1995, the
Intermediate Court of Appeals of Hawai'i (ICA) vacated the judgment and remanded the case for a new trial. State v. Jhun,
No. 16139, slip op. (Ct.App. December 5, 1995). In so holding, the ICA addressed only one of the issues that Jhun raised
in his appeal, namely, whether the trial court had erred by applying the hearsay rule, precluding Jhun from
cross- examining a police officer about the contents of an absent witness's statements that the police officer had written
down in his investigative report. The police officer's testimony about the absent witness's statements might have
supported Jhun's assertion that he had been justified in stabbing his victim as a means of defending his brother, whom a
group of men had allegedly attacked. Although the police officer's testimony about the absent witness's statements
constituted hearsay, the ICA held that it was presumptively admissible pursuant to Hawai'i Rules of Evidence (HRE) Rule
803(b)(8)(C) (1993), the public records and reports exception to the hearsay rule. In response to the State of Hawai'i's (the
prosecution) petition, we granted certiorari to review the ICA's holding, and, for the reasons set forth below, we hold that
the trial court did not err in concluding that the police officer's testimony about the absent witness's statements constituted
inadmissible hearsay. We therefore reverse the ICA's decision and order the ICA's opinion depublished. Furthermore,
after reviewing the remaining issues that Jhun has raised in his appeal, we affirm Jhun's conviction of assault in the second
degree.
                    I. BACKGROUND
    On May 19, 1990, an altercation arose on Maunakea Street in the Chinatown area of Honolulu involving, among other
people, two sets of brothers: (1) Ronald Jhun (Ronald) and the defendant Jhun; and (2) Cornelius Alston (Cornelius) and
Michael Alston (Michael). During the altercation, Jhun stabbed Cornelius in the arm with a "butterfly" knife.
Consequently, a grand jury indicted Jhun for assault in the second degree in violation of HRS s 707-711(1)(d) [FN1] and
possession of a switchblade knife in violation of HRS s 134- 52 (1993). [FN2]

    During his trial, Jhun admitted that he had stabbed Cornelius in the arm, but claimed he had been justified in stabbing
Cornelius in order to defend his brother, Ronald, because at that time a group of five or six men, including Cornelius and
Michael, had suddenly attacked Ronald and were beating him. Jhun insisted that the group of men including Cornelius and
Michael had initiated the confrontation. One of the men in the group had a "butterfly" knife, and Jhun feared that his
brother Ronald's life was in jeopardy. Jhun tried to rescue Ronald by punching the attackers, but he was not immediately
successful. As the scuffle continued, Jhun suddenly noticed that one of the attackers had dropped the "butterfly" knife.
Jhun quickly grabbed the knife and stabbed Cornelius in the arm. Cornelius and the attackers immediately stopped
beating Ronald and began surrounding Jhun, who turned and ran away from the scene. Ronald's testimony essentially
supported Jhun's version of how the events had transpired.
    In contrast to Jhun's and Ronald's testimony, Cornelius testified that he, his brother Michael, and two friends had
approached Jhun and Ronald and had asked them why Ronald was hassling Cornelius's brother. In response, Ronald
initiated the confrontation by pushing Cornelius in the chest, and Cornelius retaliated by pushing Ronald back. Then Jhun
stabbed Cornelius with a "butterfly" knife, after which Jhun turned and ran away from the scene. Cornelius chased after
Jhun.
    Michael was not available to testify at Jhun's trial. However, two Honolulu Police Department (HPD) officers testified
with respect to some of the events. At the time Jhun was fleeing the scene of the altercation, HPD officers Robert Cravalho
(Officer Cravalho) and Brian Taniguchi (Officer Taniguchi) were approximately one block away. According to Officer
Cravalho's testimony, he had noticed Jhun running toward Officer Taniguchi and himself with a knife in his hand. Both
officers drew their revolvers and Officer Cravalho told Jhun to drop the knife. Jhun placed the knife on the street, but
continued running away. After chasing Jhun, Officer Cravalho and Officer Taniguchi eventually subdued and arrested
him.
    While investigating Cornelius's stabbing, Officer Cravalho interviewed Cornelius's brother, Michael, approximately
one hour and forty-five minutes after the events that had culminated in Jhun's arrest. Based on the interview with Michael
about how the altercation had taken place, Officer Cravalho transcribed Michael's oral statements by hand onto three pages
of HPD-252 forms. Michael read the statements, as transcribed by Officer Cravalho, and signed an attestation stating that
the statements were true and correct. Officer Cravalho's transcription of Michael's statements in the HPD-252 forms reads,
in pertinent part, as follows: [deleted]...




Professor John Barkai, U.H. Law School - Evidence                                                     Page - 50
    After direct examination of Officer Cravalho, Jhun's counsel cross- examined Officer Cravalho and attempted to elicit
testimony from Officer Cravalho regarding Michael's transcribed statements in the HPD-252 forms. The prosecution
objected, asserting that Officer Cravalho's testimony about Michael's transcribed statements in the HPD-252 forms would
constitute inadmissible hearsay. ...

    A. THE TRIAL COURT'S EVIDENTIARY RULING
    The ICA held that, pursuant HRE Rule 803(b)(8)(C), Officer Cravalho's testimony regarding Michael's statements in
the HPD-252 forms was presumptively admissible as evidence. We disagree.
...
    HRE Rule 803(b)(8)(C) (1993) (emphasis added). Despite this exception to the hearsay rule, the trial court did not
permit Officer Cravalho to testify during cross-examination about Michael's statements in the HPD-252 forms, and it is
this evidentiary decision that we review. ...
    "Since Rule 803(b)(8)(C), HRE, is identical to Rule 803(8)(C) of the Federal Rules of Evidence, we [may] refer to
federal case law for assistance in construing our Rule." Touche Ross Ltd. v. Filipek, 7 Haw.App. 473, 485-86, 778 P.2d
721, 729 (1989). Accordingly, we may also refer to case authority from another jurisdiction whose public records hearsay
exception is identical to FRE Rule 803(8)(C)....
... [2] Likewise in the instant case, Jhun's assertion, that Officer Cravalho's cross-examination testimony about Michael's
statements in the HPD-252 forms was admissible under HRE Rule 803(b)(8)(C), overlooks that the proffered evidence
before the trial court was not Officer Cravalho's factual findings, conclusions or opinions in the HPD-252 forms, but rather,
the proffered evidence was Officer Cravalho's testimony about Michael's statements in the HPD-252 forms. With respect
to the common law public records exception to the hearsay rule, Professor Wigmore states that the public records
exception applies only to written statements: ...
    [3][4][5] We agree with the Chadwell court that, when a party attempts to introduce a witness's testimony about a
public informational document into evidence instead of the public informational document itself, there may be several
layers of hearsay involved. Chadwell, 902 F.Supp. at 834. Jhun wanted to expose the trial court to the statements that
Michael had made to Officer Cravalho, because Michael's statements might have tended to support Jhun's assertion that
Cornelius was attacking Ronald in such a way as to put Ronald's life in danger, which, in turn, might have given Jhun
justification for stabbing Cornelius under HRS s 703-305(1) (1993). However, Michael's statements to Officer Cravalho
were hearsay, because they were out-of-court statements that Jhun offered into evidence to prove the truth of the matter
asserted, i.e., that Jhun was justified in stabbing Cornelius. Furthermore, Officer Cravalho had transcribed Michael's
statements into the HPD-252 forms, which constituted hearsay. Finally, rather than offering the HPD-252 forms into
evidence, Jhun attempted in court to elicit Officer Cravalho's testimony about Michael's statements in the HPD-252 forms,
which, under these circumstances, was an attempt to elicit hearsay. Without a hearsay exception for each of these three
levels of hearsay, Officer Cravalho's testimony was inadmissible.
    [6] Indeed, even if Jhun had attempted to introduce the HPD-252 forms into evidence, rather than Officer Cravalho's
testimony, Michael's statements within the HPD-252 forms would not be admissible pursuant to HRE Rule 803(b)(8)(C).
  Although the United States Supreme Court has held that FRE Rule 803(8)(C) allows for admission of public records and
reports containing opinions and conclusions, Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169- 70, 109 S.Ct. 439,
449-50, 102 L.Ed.2d 445 (1988), "the requirement that reports contain factual findings bars the admission of statements
not based on factual investigation." Id. at 169, 109 S.Ct. at 449-50. Thus, cases from several jurisdictions indicate that
when a police report simply records a witness's statement, absent a hearsay exception for the witness's statement, the police
report cannot be admitted into evidence under an evidentiary rule similar to HRE Rule 803(b)(8)(C). [FN6]

Although conclusions and opinions may also be contained in the document to be admissible under Rule 803(8)(C)'s
exception to the hearsay rule, a report must first be a set of factual findings. The factual findings in a report qualifying for
a Rule 803(8)(C) exception to the hearsay rule must, however, be based upon the knowledge or observations of the
preparer of the report. As stated in the Advisory committee Notes to Rule 803, in a hearsay situation, the declarant is, of
course, a witness and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge. It may appear
from his statement or be inferable from circumstances. Additionally, the comments note that police reports have generally
been excluded except to the extent to which they incorporate firsthand observations of the officer.
...




Professor John Barkai, U.H. Law School - Evidence                                                      Page - 51
    Similarly in the instant case, the HPD-252 forms did not contain "factual findings" that Officer Cravalho based on his
own investigation. Officer Cravalho did not record any of his own independent conclusions or opinions about his
interview with Michael. Rather, the HPD-252 forms merely contained out-of-court statements that Michael had made to
Officer Cravalho approximately one hour and forty-five minutes after the events that had culminated in Jhun's arrest. As
a result, the HPD-252 forms lacked the typical characteristics of factual findings. Like the police reports at issue in Miller,
the HPD-252 forms were merely a recitation of a third-party's out-of-court statements that fell under no other exception to
the hearsay rule, and thus, the HPD-252 forms were not admissible under HRE Rule 803(b)(8)(C).
    Accordingly, we hold that the trial court correctly ruled that Officer Cravalho's cross-examination testimony about
Michael's statements in the HPD- 252 forms was inadmissible hearsay.
...
    Based on the foregoing, we reverse the ICA's decision in State v. Jhun, No. 16139, slip op. (Ct.App. December 5, 1995)
and order the ICA's opinion depublished.           We hold that the trial court correctly ruled that Officer Cravalho's
cross-examination testimony about Michael's statements in the HPD- 252 forms was inadmissible hearsay. ... Therefore,
we affirm the trial court's conviction of Jhun for assault in the second degree in violation of HRS s 707-711(1)(d).




Professor John Barkai, U.H. Law School - Evidence                                                     Page - 52
   PUBLIC RECORDS PROBLEMS
             HRE 803(B)(8) = FRE 803(8)

1 Police Officer Onscene arrived at the scene of a Honda v. Buick accident and prepared an accident report.
  The report included a statement to the officer from a bystander who said, "I can't believe the guy in the
  Buick made a left turn after the light had turned red." In a subsequent personal injury action, can the report
  be introduced by either party?

2 Can either party in the above accident introduce the records of the U.S. Meteorological Service showing
  the weather on the day of the accident?

3 Officer Onscene has been trained in accident reconstruction. Using point of impact, other measurements,
  vector analysis, and statements of bystanders, the officer concludes that the Buick ran the red light, and
  writes this conclusion in the report. Can the police officer testify as to her conclusion in court?

4 The police officer comes to court, but has done so many accident investigations, she cannot remember this
  particular accident. What can the Honda driver do?

5 The police officer died in the line of duty. Can the Honda driver introduce the officer's report?

6 If "yes," what foundation must be laid?

7 The driver of the Honda died as a result of injuries received during the crash. Is Onscene's report
  admissible in Buick driver's subsequent negligent homicide trial?

8 The Buick driver was tested for alcohol consumption by Officer Bier at the station and registered .18 blood
  alcohol consumption (legally drunk) using a breathalyzer. Bier wrote a report to this effect. Before the
  Buick owner's DUI trial, Officer Bier retired and moved to California to run Cut Rate Liquors L.A.. Is
  Bier's report admissible?

9 Bier returns to Hawaii and does testify in the Buick driver's trial. However, the person who gives the
  breathalyzer its monthly test and certifies in a log that the machine is accurate, is not available to testify.
  The police ask for your opinion as to whether they will be able to admit the evidence against the Buick
  driver. What is your opinion?




Professor John Barkai, U.H. Law School - Evidence                                          Page - 53
                    EXPERT TREATISE,
            JUDGMENT OF PREVIOUS CONVICTION
              & OTHER 803 HEARSAY PROBLEMS
1. Paul Patient sued Dan the Doctor for medical malpractice for allegedly failing to come to the
    hospital when Paul needed his attention. Dan had admitted Paul to the hospital for an
    operation to repair a broken leg. One night at the hospital, at approximately 3 a.m., Paul
    complained of pain in the leg and lack of feeling in his toes. His toes were cold and bluish in
    color. These are indications that the cast was cutting off the circulation in Paul's lower leg.
    Dan's defense is that he was never informed of the seriousness of the symptoms. Paul, in his
    case-in-chief, seeks to introduce a textbook that during a deposition Dan recognized as a
    reliable authority. The relevant portion of the textbook states:

    "One of the clearest symptoms that a leg has been cast too tightly is the loss of feeling
    resulting from decreased circulation."

    Is the textbook admissible by Paul?                                                 (Guer 4.44)



2. Bobby the building owner sued his insurance company because it has not paid him on the
    insurance policy for his building that was destroyed by fire. The insurance company defends
    on the ground that Bobby set the fire and is therefore not entitled to the insurance proceeds.
    Bobby was convicted of arson of the building before his civil trial against the insurance
    company started. At the civil trial, can the insurance company introduce the fact that Bobby
    has previously been convicted of arson of his own building?




3. Can the Hawaii Liquor Control Commission introduce the public intoxication conviction of
    Walter Watkins to show that clerk Dan Jones sold liquor to an intoxicated person? Watkins'
    conviction was punishable to six months in jail. He served a 10-day sentence.




Professor John Barkai, U.H. Law School - Evidence                                Page - 54
4. Paula and David have an auto accident. David drives a truck for his Dad's Laundry. Both drivers
    claim the other ran a red light causing the accident. After the auto accident but prior to trial,
    David was convicted of driving under the influence of alcohol, a misdemeanor. Is that
    conviction admissible in the auto accident trial?

     After David's truck hit Paula, it ran up on the sidewalk striking Harriet. Harriet died and Dave
     was tried and convicted of negligent homicide, a felony. Is Dave's conviction for negligent
     homicide admissible in the auto accident case with Paula?

     Does it matter that the conviction will also be used against Dad's Laundry? (Guer 4.45)




5.   Plaintiff seeks to establish the value of her property by showing the value of comparable
     properties. To establish the value of comparable properties, plaintiff seeks to introduce the
     "Guide to Real Estate," a monthly publication produced by local real estate agencies, showing
     residential properties for sale in the Honolulu area. Defendant objects. What ruling?(Guer 4.46)




6.   Plaintiff brings suit on a life insurance policy, claiming he is entitled to double indemnity
     because of the accidental death of the insured. The insurance company seeks to introduce a
     certified copy of the insured's death certificate which states that death was the result of a heart
     attack. Plaintiff objects. What ruling?                                               (Guer 4.47)




Professor John Barkai, U.H. Law School - Evidence                                   Page - 55
STATE v. KIM, 55 Haw. 346, 519 P.2d 1241 (1974)                                                                   R 804

   Convicted of negligent homicide. To prove that Kim was intoxicated while driving a car that
collided with another car, killing its two occupants, the prosecutor introduced the transcipt of a
pre-trial hearing testimony.
   The state attempted to show the appellant's grossly negligent operation of the lethal motor vehicle through proof of
her intoxication at the time she was driving the vehicle in question. For this purpose the state offered in evidence a
portion of a transcript made at a pre-trial hearing of a motion made by appellant (and granted by the court) to suppress
results of a blood alcohol test performed on appellant shortly after the accident. The portion of the transcript offered
was the testimony of Dr. Wally, who performed the blood alcohol test on the appellant following her transport to St.
Francis Hospital for treatment of injuries sustained in the automobile collision.

    The state made an attempt to lay the necessary foundation for the admission at trial of Dr. Wally's pre-trial hearing
testimony. For the purpose of laying this foundation, the state called as a witness Patricia Kaneda, a medical secretary
at St. Francis Hospital. She testified in pertinent part as follows:
Q (By the state) Were you asked to appear in Court today concerning Dr. John Wally?
A Yes, sir.

Q Do you know his whereabouts at this time?
A Yes, sir.

Q What is his address right now?
A Well, according to our records, Dr. Wally's forwarding address is the Weatern Blueprint Company at 909 Grant
Avenue in Kansas City, Missouri.

MISS LEE (Prosecuting Attorney): Fine. I have no other questions, your Honor.

There was no cross examination by appellant's lawyer.
...
    Shortly after conclusion of this testimony, appellant's attorney stated that he would object to the introduction of any
testimony by Dr. Wally recorded from the prior pre-trial hearing. His statement of the second of his two objections to
this evidence was phrased as follows: MR. TSUKIYAMA (Appellant's attorney): And the second ground of the
objection would be that to introduce the transcript of the testimony taken in that prior hearing would deprive the
Defendant of confrontation. [T]he objection was ... overruled.

    The substance of the testimony read to the jury was that, in Dr. Wally's opinion, appellant Kim was in an intoxicated
state when she was brought to St. Francis Hospital after the automobile accident. Dr. Wally had stated, and the jury was
read, his opinion that appellant had the possibility of blurred vision that might have prevented appellant from reading,
that appellant had slurred speech, and that there was an over-powering smell of alcohol in the emergency room of St.
Francis Hospital, where only appellant, Dr. Wally, and a nurse were present. There can be no doubt that the state
introduced this testimony as tending to prove that appellant was drunk at the hospital, and thus, inferentially, was also
intoxicated while driving her car immediately prior to the collision which resulted in the deaths of the Newmans and in
the injuries that required her to be transported to the hospital.

    Under the confrontation clauses of the United States and Hawaii Constitutions, a defendant in a criminal
prosecution has the right 'to be confronted with the witnesses against him.' In Barber v. Page, 390 U.S. 719, 88 S.Ct.
1318, 20 L.Ed.2d 255 (1968) and in Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969), the
United States Supreme Court reversed criminal convictions on the ground that the state made an insufficient effort to
obtain the presence at trial of the potential witness whose pre-trial testimony was then read to the trial jury. The
traditional rule - that the showing of the mere absence of the witness from the jurisdiction satisfied the constitutional
requirement that the witness is 'unavailable' - was emphatically rejected in Barber v. Page, supra. Although there is no
new and comprehensive definition of what constitutes 'unavailability', the Supreme Court in Barber, noted the
relevance of some of the changes in the law that rendered the old definition of 'unavailability' inadequate. The court

Professor John Barkai, U.H. Law School - Evidence                                                  Page - 56
stated, 390 U.S. 719, 723-724, fn. 4, 88 S.Ct. 1318 that the general enactment, in almost all states, of the Uniform Act
to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings establishes a modern spirit of
cooperation between the states that vitiates the old theory that the mere absence of a witness from the jurisdiction where
trial occurs constitutes sufficient 'unavailability.'
...
    We hold that the state did not sufficiently establish the 'unavailability' of Dr. Wally to permit it to use his pre-trial
testimony. Establishing that a witness has a forwarding address in another state at best only tends to prove the witness's
absence from Hawaii. The state must show a good faith effort to ascertain the actual location of the witness, and
thereafter, if necessary, to attempt to compel the witness's attendance at trial through use of the Uniform Act to Secure
the Attendance of Witnesses from Without a State in Criminal Proceedings, SLH 1971, Act 116, formerly HRS, ch. 719;
renumbered as HRS, ch. 736, by SLH 1972, act 9, s 1, sec. 1300(2)(b)(xi), see volume 7, HRS, 1973 Supp., p. 290.
    Unless the state can show a good faith attempt to use this statute to assure attendance of the witness, the state may
not introduce the pre-trial testimony of the absent witness. Barber v. Page, supra; Berger v. California, supra. Where
the suspected whereabouts of the witness are within one of the few states that may not have enacted the Uniform Act,
a lesser showing of 'unavailability' than that imposed here may suffice. Also, a lesser showing of 'unavailability' seems
constitutionally sufficient when the witness is residing within a foreign country.[FN5] Manchsi v. Stubbs, 408 U.S. 204,
92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). Only in such cases would it seem that the Uniform Act would not mandate a
strong, good faith effort to secure attendance of the witness. Id., at 212, 92 S.Ct. 2308. In the case at bar, Dr. Wally was
believed to be in Missouri. Missouri has enacted the Uniform Act. V.A.M.S. ss 491.400-491.450.
    FN5. There is, however, even some question as to the present day validity of this statement of the law as it may apply
to United States' nationals residing abroad, in light of 28 U.S.C. s 1783. See also, Mancusi v. Stubbs, supra,
    211-212; id., at 222, 92 S.Ct. 2308 (Marshall, J., dissenting).
    Since the state failed to show a good faith effort to compel Dr. Wally's attendance at the appellant's trial (and this
was admitted during the oral argument), an inadequate foundation was laid for the admission therein of his pre-trial
testimony. The trial court erred in admitting this testimony in violation of the appellant's constitutional right to
confrontation. For this error, we are required to reverse the conviction and remand this case for a new trial. We stress
that this is not a reversal of a conviction on the basis of a mere technicality. The accused's right to confront the witnesses
against him in a criminal trial is an essential and basic constitutional right. The slow development of this fundamental
right, central to our system of justice, has been carefully, and repeatedly, traced-and stressed-by the United States
Supreme Court.[FN6] This court has been no less ardent in its efforts to insure that the full extent of the right to
confrontation is assured to all those accused by the state of criminal acts. ...
    FN7. We also note the recent case, State v. Faafiti, 54 Haw, 637, 642, 513 P.2d 697, 701 (1973), in which we were
faced with the issue of unavailability. In Faafiti we held that the state's effort to procure the attendance of a key witness,
Ira Haskins, was sufficient where the witness was serving in the military and the appropriate military authorities were
requested, without avail, to return the witness to this jurisdiction for defendant's trial. The record in the case at bar
reflects no effort even arguably comparable to that made in Faafiti.
    In light of the essential nature of this constitutional right of confrontation, we cannot agree with the state's argument
that the objection stated by appellant's attorney, and quoted, supra, was insufficient to preserve for appeal the
subordinate issue of 'unavailability' within the larger confrontation question. We have repeatedly held that important
constitutional questions can be raised for the first time on appeal. ... Alternatively, we also note that the objection made
by appellant's attorney to the reading of Dr. Wally's testimony was more than sufficient under the legal standards on the
adequacy of such objections established by Barber v. Page, supra, and Douglas v. Alabama, 380 U.S. 415, 420-423,
85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). ...

   Judgment reversed and remanded for a new trial.




Professor John Barkai, U.H. Law School - Evidence                                                    Page - 57
STATE v. LINCOLN, 71 Haw. 274,                                  789 P.2d 497 (1990)             HRE 804(b)(1)
    [Defendant was convicted of homicide on a retrial. The Supreme Court, Lum, C.J., held that prior testimony should
not have been admitted where the person whose testimony was offered had subsequent recanted his testimony and then
recanted his recantation. Reversed and remanded.]
    Lincoln alleges numerous points of error in his appeal. We need to address only one, which is whether the trial court
committed reversible error when it admitted into evidence the former testimony given in Lincoln's first trial by the
trigger man in the shooting, Anthony Kekona, Jr., after the trial court found that Kekona was unavailable as a witness
under Hawaii Rules of Evidence (HRE) 804 when Kekona refused to testify. Because we find that Kekona's former
testimony lacked the necessary indicia of reliability and because Lincoln's rights under the Confrontation Clause of the
Hawaii Constitution have been violated, we reverse.
                                                            I.
    On May 4, 1978, Anthony Kekona, Jr., and Patrick Hawkins went to the Kaleialoha Condominium in Honokowai,
Maui, where Kekona shot and killed Paul Warford and David Blue and shot Harriet Savage in the head wounding her
severely. Hawkins, who had provided the gun Kekona used, was arrested almost immediately. Kekona was arrested
several days later on Oahu.

   Kekona pled guilty on two counts of murder and one count of attempted murder for which he was sentenced,
respectively, to life imprisonment with possibility of parole and 20 years in prison. Hawkins pled guilty to three counts
of attempted robbery for which he received five years probation.

   The day after his sentencing in July 1979, Kekona told his uncle, Robert Cordero, a Maui police detective, that he
had been hired by John Kalani Lincoln to kill Warford, Blue and Savage.
                                                              II.
                                                              A.
   Thereafter Lincoln was indicted by the Grand Jury on two counts of "murder for hire" and one count of attempted
murder. Both Hawkins and Kekona testified on behalf of the State against Lincoln. These testimonies were read to the
jury in Lincoln's retrial and are the subject of this appeal.

   On April 12, 1980, a jury found Lincoln guilty of the two murders and attempted murder. The jury did not find
Lincoln guilty of "murder for hire." He was sentenced to life with parole and twenty years in prison respectively.

   In late 1982, Anthony Kekona, in a sworn affidavit which stated that Lincoln had no connection with the shootings
and that Kekona's only connection with Lincoln involved marijuana transactions, recanted his testimony given at
Lincoln's trial. When a hearing was held on this recantation, Kekona recanted his recantation and claimed he only
wanted a free trip back to Hawaii from prison on the mainland to see his family.

    After the 1987 reversal of Lincoln's conviction by the Federal District Court, the State decided to retry Lincoln.
                                                           B.
    Eventually, a new jury trial was held commencing January 17, 1989. Kekona refused to testify for the State.
Kekona demanded new concessions from the State for further testimony and also claimed his privilege against
self- incrimination after not being offered immunity. Hawkins was unavailable to testify for the State since his
probation had expired and he had moved to the mainland. The State did try to produce Hawkins through the Uniform
Act to Secure Attendance of Witness from Without the State in Criminal Proceedings.

    The former testimony of Kekona was read to the jury. The jury was advised of his retraction and his retraction of
his retraction. The court allowed the former testimony under HRE 804(a)(2). Likewise, the court allowed the former
testimony of Hawkins under HRE 804(a)(5) but in this appeal we need not address that aspect of the court's ruling.
Lincoln objected very strenuously to the admission of the former testimony of Kekona, citing the fact that Kekona's
behavior in the intervening years had been such as to cast serious doubts on the reliability of his former testimony.
Lincoln argues that Kekona's action subsequent to his prior testimony rendered the prior cross- examination of him
inadequate to support the admission of the prior testimony, and Lincoln was deprived of his right of confrontation.
We agree.
                                                          III.




Professor John Barkai, U.H. Law School - Evidence                                                 Page - 58
   We have previously held that the erroneous admission of evidence may constitute plain error if a fair trial was
thereby impaired or if that evidence resulted in substantial prejudice to the Defendant. State v. Cummings, 49 Haw.
522, 528, 423 P.2d 438, 442 (1967). We must also determine whether the admission of such evidence was harmless
beyond a reasonable doubt in order to decide the question of whether or not the admission of former testimony under
a hearsay exception to the Hawaii Rules of Evidence violated Lincoln's constitutional right to confront his accuser.
State v. Pokini, 57 Haw. 26, 548 P.2d 1402 (1976).

    In the present case, the trial court found that both Kekona and Hawkins were unavailable and admitted their former
testimony from the first trial which was read to the jury even though the State was not able to assure the trial court that
Kekona's testimony at the second trial would have been substantially similar to that in the first if he did choose to testify
a second time. Kekona's recantation and recantation of the recantation were also made known to the jury but, of course,
Lincoln's counsel was unable to cross-examine him on these matters.

    Generally, former testimony is admissible as an exception to the hearsay rule. Since it was adduced under oath and
the opposing party had the opportunity for full cross-examination, former testimony is thought to be reliable and
acceptable when the declarant is unavailable. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)
(reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception);
State v. White, 65 Haw. 286, 651 P.2d 470 (1982). Criminal defendants have a basic constitutional right to confront
their accusers under both the Hawaii and United States Constitutions. Under HRE 804(b)(1), the proponent of former
testimony must establish that the witness is unavailable and that his unavailability has not been procured by the party
seeking to use his former testimony and that the opposing party had a sufficient reason, motive, and opportunity to
cross-examine the witness at the former hearing. Former testimony is thus admissible and does not violate the
confrontation clause if this test is met. Roberts, supra.
    Hawaii case law also allows the admission of former testimony, if the witness is unavailable. Generally, the
introduction of prior testimony does not violate the Confrontation Clause if there is sufficient proof of the unavailability
of the witness. State v. Kim, 55 Haw. 346, 519 P.2d 1241 (1974). Such testimony is admissible if the witness was
under oath, the defendant and his attorney were present and had an opportunity to cross-examine the witness, the
proceedings were before a judicial tribunal which recorded them properly, and the State was unable to procure the
attendance of the witness after diligent efforts. State v. Faafiti, 54 Haw. 637, 513 P.2d 697 (1973).
    We find that here Kekona's former testimony lacks reliability. Kekona retracted his testimony under oath, retracted
his retraction, and finally refused to testify at trial. His motives are unclear but may have included, among other things,
a desire to receive a free trip back to Hawaii from his mainland prison as well as an attempt to strike a better deal with
the State. We also find that the prior cross-examination of Kekona was rendered inadequate by subsequent events.
    There is a federal case which is analogous. In United States v. Barlow, 693 F.2d 954 (6th Cir.1982), the court set
out a test for determining the reliability of former testimony given before a grand jury which was sought to be admitted
under Federal Rules of Evidence 804(b)(5) (same as HRE 804(b)(6)). Although there was no cross-examination before
the grand jury, the testimony was given under oath.

    [9] Second the trial court must determine whether the substance of the grand jury testimony possesses
"circumstantial guarantees of trustworthiness" equivalent to the other exceptions included in Rule 804. In making this
determination the trial court should consider the declarant's relationship with both the defendant and the government,
the declarant's motivation to testify before the grand jury, the extent to which the testimony reflects the declarant's
personal knowledge, whether the declarant has ever recanted the testimony, and the existence of corroborating
evidence available for cross- examination. (Emphasis added). Id. at 962.
    We hold that the mechanistic application of the hearsay exceptions is inappropriate. Chambers v. Mississippi, 410
U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
    The evidence against Lincoln is flimsy without the critical testimony of Kekona. Kekona's testimony was critical to
the extent that we feel that, upon review of the record, its admission was not harmless beyond a reasonable doubt. To
allow the former testimony which lacks the indicia of reliability usually associated with sworn testimony to be admitted
in lieu of Kekona's live appearance violates Lincoln's constitutional right to confront his accuser as to subsequent
events which have rendered Kekona's testimony unreliable.
    Reversed and remanded for a new trial.




Professor John Barkai, U.H. Law School - Evidence                                                    Page - 59
                  FORMER TESTIMONY PROBLEMS
1 Criminal case. W testifies before a grand jury that D committed the crime. If W is unavailable
  for trial, is W's grand jury testimony admissible at trial? Why?

2 Criminal case. W testifies at a preliminary hearing that D committed the crime. If W is
  unavailable for trial, is W's preliminary hearing testimony admissible at trial? Why or why not?

3 In the example above, if the defendant's lawyer did not cross examine W at the preliminary
  hearing, is the preliminary hearing testimony admissible at trial?

4 Civil case: At a pretrial deposition, W testifies that P ran the red light. If W is unavailable for
  trial, is W's deposition testimony admissible at trial against P?

5 Kekona testifies against defendant Lincoln at his criminal trial. Lincoln is convicted, but the
  case is reversed by the Supreme Court. If Kekona is unavailable for a second trial, is Kekona's
  testimony admissible?
.
6 FACTS: P1 & P2 are riding in a Taxi that has an accident with a bus. P1 sues Taxi (P1 v. Taxi
  Company). P1 testifies to facts that show that the taxi driver was negligent. WT (wit for Taxi)
  testifies that Taxi was not negligent. Jury finds for P1
  P2 now sues Taxi Company in another suit (P2 v. Taxi), again for negligence. Can P1's
  testimony be introduced by P2 against T?

7 Assuming P2 can find a good use for it, can P2 introduce WT's testimony against Taxi?

8 Can WT's testimony be introduced by T against P2?

9 P is seeking damages for an asbestos-related disease. In a earlier trial, W gave testimony about
  the amount of asbestos in Company A's product. In this case, P sues Company B involving a
  product similar to the one produced by Company A. Is W's testimony from the trial with
  Company A admissible in the trial with Company B?

10 Another P is seeking damages for asbestos-related disease, P sued Company X claiming that it
       had made some of the asbestos-containing products that P had worked with during his
       career as a pipefitter. May P offer testimony of unavailable W who testified at a trial
       involving similar products produced by Company Y, a company that had merged with
       Company X just before the current P filed suit?




Professor John Barkai, U.H. Law School - Evidence                                 Page - 60
11 Sam Smith brought a small claims case against Robert Jones and the Owens Construction
       Company for $500 in damages done to his truck. At the trial, Sally Smith, Sam's daughter,
       who was a passenger in the bed of truck, testified as to what she knew of the accident. At
       Billy Boy's trial, Sally Smith is unavailable. Is the testimony of Sally Smith at the small
       claims hearing admissible against Billy Boy when offered by either Sam Smith or Robert
       Jones (who are co-defendants)?

        Is the prior testimony of Sally Smith admissible when offered by Sam Smith against Robert
        Jones and the Owens Construction Company in Billy Boy's trial?

12 The Owens Construction Company fired Robert Jones for leaving his job during working hours
       and using a company car for personal business. Robert Jones brought a case for unfair
       dismissal. In that case, the deposition of Mary Jackson was taken by counsel for Robert
       Jones. During the deposition, Mary Jackson answered several questions asked by counsel
       for Robert Jones and counsel for the Owens Construction Company relating to the details
       of the accident with Billy Boy. At the time of trial of the case brought by Billy Boy, Mary
       Jackson is visiting her parents across the country. May Billy Boy introduce into evidence
       the deposition testimony of Mary Jackson against the Owens Construction Company?


Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
R804(b)(1) Former Testimony

     (1) Similar motive to develop the testimony. Generally, a party or predecessor in interest is regarded
as having a similar motive to develop the testimony when the issue to which the testimony related at the
former hearing is substantially identical to the issue in the present proceeding. United States v. Koon, 34 F.3d
1416, 1427 (9th Cir.1994), aff d in part, rev'd in part on other grounds, 518 U.S. 81, 116 S.Ct. 2035, 135
L.Ed.2d 392 (1996); United States v. DiNapoli, 8 F.3d 909 (2d Cir.1993); United States v. Miller, 904 F.2d 65,
68 (D.C.Cir.1990); United States v. Licavoli, 725 F.2d 1040, 1048 (6th Cir.1984) ("Here the issues in the cases
were nearly identical, since in the state cases the defendants were charged with murder and conspiracy to
commit murder, and in the RICO prosecution these two acts constituted the predicate acts for the RICO
conviction."), cert. denied, 467 U.S. 1252, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984). Absolute identity of the
issue is not required. United States v. McFall, 558 F.3d 951, 963 (9th Cir.2009) (Rule 804(b)(1) "does not require
an identical quantum of motivation").




Professor John Barkai, U.H. Law School - Evidence                                            Page - 61
SHEPARD v. UNITED STATES, 290 U.S. 96 (1933)
    Charles A. Shepard was convicted of murder. Affirmed by the Circuit Court of Appeals. Reversed by the Supreme Court,
and cause remanded.
    Mr. Justice CARDOZO delivered the opinion of the Court.
    The petitioner, Charles A. Shepard, a major in the medical corps of the United States Army, has been convicted of the
murder of his wife, Zenana Shepard, at Fort Riley, Kan., a United States military reservation. The jury having qualified their
verdict by adding thereto the words 'without capital punishment' (18 U.S.C. s 567 (18 USCA s 567)), the defendant was
sentenced to imprisonment for life. The judgment of the United States District Court has been affirmed by the Circuit Court
of Appeals for the Tenth Circuit, one of the judges of that court dissenting. 62 F.(2d) 683; 64 F.(2d) 641. A writ of certiorari
brings the case here.

    The crime is charged to have been committed by poisoning the victim with bichloride of mercury. The defendant was in
love with another woman, and wished to make her his wife. There is circumstantial evidence to sustain a finding by the jury
that to win himself his freedom he turned to poison and murder. Even so, guilt was contested, and conflicting inferences are
possible. The defendant asks us to hold that by the acceptance of incompetent evidence the scales were weighted to his
prejudice and in the end to his undoing.

     The evidence complained of was offered by the government in rebuttal when the trial was nearly over. On May 22, 1929,
there was a conversation in the absence of the defendant between Mrs. Shepard, then ill in bed, and Clara Brown, her nurse.
The patient asked the nurse to go to the closet in the defendant's room and bring a bottle of whisky that would be found upon
a shelf. When the bottle was produced, she said that this was the liquor she had taken just before collapsing. She asked
whether enough was left to make a test for the presence of poison, insisting that the smell and taste were strange. And then
she added the words, 'Dr. Shepard has poisoned me.'
                                                              ***
... The voice of the dead wife was heard in accusation of her husband, and the accusation was accepted as evidence of guilt.
If the evidence was incompetent, the verdict may not stand.

    1. Upon the hearing in this court the government finds its main prop in the position that what was said by Mrs. Shepard
was admissible as a dying declaration. This is manifestly the theory upon which it was offered and received. The prop,
however, is a broken reed. To make out a dying declaration, the declarant must have spoken without hope of recovery and in
the shadow of impending death. The record furnishes no proof of that indispensable condition. So, indeed, it was ruled by
all the judges of the court below, though the majority held the view that the testimony was competent for quite another
purpose, which will be considered later on.

     We have said that the declarant was not shown to have spoken without hope of recovery and in the shadow of impending
death. Her illness began on May 20. She was found in a state of collapse, delirious, in pain, the pupils of her eyes dilated, and
the retina suffused with blood. The conversation with the nurse occurred two days later. At that time her mind had cleared
up, and her speech was rational and orderly. There was as yet no thought by any of her physicians that she was dangerously
ill, still less that her case was hopeless. To all seeming she had greatly improved, and was moving forward to recovery. There
had been no diagnosis of poison as the cause of her distress. Not till about a week afterwards was there a relapse,
accompanied by an infection of the mouth, renewed congestion of the eyes, and later hemorrhages of the bowels. Death
followed on June 15.

    Nothing in the condition of the patient on May 22 gives fair support to the conclusion that hope had then been lost....
Despair of recovery may indeed be gathered from the circumstances if the facts support the inference.... What is decisive is
the state of mind. Even so, the state of mind must be exhibited in the evidence, and not left to conjecture. The patient must
have spoken with the consciousness of a swift and certain doom.

    What was said by this patient was not spoken in that mood. There was no warning to her in the circumstances that her
words would be repeated and accepted as those of a dying wife, charging murder to her husband, and charging it deliberately
and solemnly as a fact within her knowledge. To the focus of that responsibility her mind was never brought. She spoke as
one ill, giving voice to the beliefs and perhaps the conjectures of the moment. The liquor was to be tested, to see whether her
beliefs were sound. She did not speak as one dying, announcing to the survivors a definitive conviction, a legacy of
knowledge on which the world might act when she had gone.
                                                              ***
    Reversed.

Professor John Barkai, U.H. Law School - Evidence                                                       Page - 62
        DYING DECLARATION PROBLEMS
1 Homicide prosecution. Victim (V) says to Witness (W):
  "I'm dying. X shot me." Admissible?


2 Homicide prosecution. V says to W:
  "Tell Fate Yanagi I love her." Admissible?


3 Attempted murder prosecution. V was shot; V recovered; V moved to India for spiritual enlightenment. V says
  to W: "X shot me. I may die from this". Admissible?


4 Homicide prosecution. V says to W: "Dr. Shepard poisoned me." Admissible?


5 In civil auto accident case, it is recorded in the hospital record of the patient, who knew he was dying, "Doctor,
  I saw his head nodding as he crossed the center line." Admissible?


6 Injured and dying in prison riot, declarant says, "Tom didn't mean to shoot the guard at the bank". Prosecutor
  wants to introduce that statement against Tom in his trial for bank robbery. Admissible?


7 In the above prison riot, a dying declarant says that "Tom had nothing to do with the robbery". Can the
  statement be offered by Tom in his robbery trial?


8 Declarant, obviously dying, is asked the following question, "Who shot you?" and answers: [by writing with his
  finger in his own blood] "Bob."


9 Suicide Note:
  "I am going to die now. I took poison".

   Family of note writer sued insurance company to collect on life insurance policy on note writer. Insurance
   company defends on grounds the death was a suicide, not an accident, and suicide is excluded from the policy
   coverage. Admissible for life insurance company as a dying declaration?


10 Same law suit as above, only this time the suicide note reads:
   "I am going to take poison soon (said 2 weeks before death)". Is it admissible for life insurance company as
   a dying declaration?


11 Suicide Note:




Professor John Barkai, U.H. Law School - Evidence                                             Page - 63
   "I took poison. I couldn't stand it after Jenny and I stole the money from work." If declarant recovers from the
   poison, is the statement admissible as a dying declaration if the declarant and Jenny are charged with
   embezzling funds from work?


12 "Get a priest. Larry shot me in the back"
   Is it admissible in murder trial of State v. Larry?


13 "I saw Harry shoot me. Please tell my auntie to take care of my children."


14 As Billy Boy was lying on the ground, Margaret Boyd, a school crossing guard, approached. She observed
        Billy Boy lying in obvious pain, blood pouring from his nose. His leg was all twisted. Margaret Boyd was
        the first person on the scene. She said, "Little boy, hold on tight, I am going to call an ambulance. You
        don't look good. Is there something I should tell your parents?" Billy Boy responded, "Tell Mom I didn't
        do anything wrong. I was walking my bike." Assume for purposes of this problem that at trial Billy Boy
        testifies that he cannot recall whether he was walking or riding his bicycle. May Margaret Boyd testify to
        Billy Boy's statements?




Professor John Barkai, U.H. Law School - Evidence                                            Page - 64
STATE V. MABUTI 72 Haw. 106,                        807 P.2d 1264 (1991)
                                                                             HRE 804(b)(3)
   ... the separate appeals of two co-defendants who were jointly tried; ... they argue that they
should have been tried separately. As we see no abuse of discretion in the rulings by the trial court
as to Appellant Mabuti, we affirm his conviction. However, we hold that reversible error was
committed by the trial court in denying Appellant Acosta's motions for severance. We reverse
Acosta's conviction, and remand for a new trial as to Acosta only.

                                                     I.
   The incident giving rise to this appeal was the gang slaying of a teenager. The incident occurred
in September 1986, late at night. It was instigated when an unknown person threw a fire bomb out
of a passing vehicle, in a neighborhood where a birthday party was going on at one residence, and
a baptismal party was going on at another residence. Gang members in attendance at the birthday
party went cruising in trucks, looking for the person who threw the bomb.
   The eventual victim, Rowen Miguel, who had been at the baptismal party, was spotted hiding
by a parked vehicle. When Miguel realized that he had been spotted, he called out, "not me, not
me." Despite his protestation, several persons left their trucks and beat him up with baseball bats.
 He died a few days later as a result of the head injuries.
   Twelve persons were eventually indicted, but not until over a year after the murder. Mabuti and
Acosta, severed from the other defendants, were tried together. In the joint trial, Mabuti testified
that he was not involved in the beating; he claimed that he had gone to a house where he heard
shots and challenged the gunman to come out--and left after smashing a car windshield at the house.
 Acosta testified that he tried to stop the beating because he knew the victim--but was pushed aside.
 Acosta also testified that he saw co- defendant Mabuti participating in the beating. Acosta's
testimony was not a surprise to Mabuti, as Acosta had been consistent in his statement of the facts
from when he was initially confronted by the police. At least three witnesses claimed to have seen
both Appellants as some of the last persons beating the victim. Somewhat contradictory testimony
came from other witnesses who were unsure about whether Appellants participated in the beating.
   Well before trial, another individual, Enrique Pintoy, confessed to his own participation in the
beating, and at the same time implicated most of the other defendants. Pintoy was named in the
same indictment as Mabuti and Acosta, but was not included as a co-defendant in this trial. The
Pintoy confession is lengthy, having taken place over a three day period. It goes into great detail
about exactly what transpired--from the injuries which the victim suffered, to exactly who Pintoy
saw hitting or assisting in beating the victim. He discussed the gang involvement. Pintoy also
stated that Appellant Mabuti had participated in the beating, and that the two of them had discussed
the incident sometime in the next couple of days, at which time Mabuti talked about having hit the
victim. Pintoy also stated that while recognizing Acosta as having been at the party, he could not
say whether Acosta was at the beating. Pintoy, while incarcerated after his confession, was
severely beaten, and as a result was deemed both unable to proceed and unavailable for this trial.




Professor John Barkai, U.H. Law School - Evidence                                Page - 65
    Acosta tried to have Pintoy's confession admitted, as a statement against interest, arguing that
the relevance was that it was exculpatory as to himself. The State had no objection to its admission,
but Mabuti did, since it was very damaging to his case. In an effort to allow Acosta's exculpatory
evidence in, the parties tried to redact the statement of references to Mabuti. The State objected to
that form, arguing that it left the impression that Mabuti was at least as innocent as Acosta claimed
to be. Finally, the only elements of Pintoy's confession which the court allowed were those
specifically referring to his recognizing Acosta from the party, and his lack of knowledge as to
whether Acosta was present at the beating. Not even the fact that the statement was a confession
was allowed. As what was left was of little consequence, Acosta chose not to use Pintoy's
statement.
    The existence of this confession was, in part, the reason for several attempts by Acosta to have
the trial severed. The earliest such motion, over a year prior to trial, was denied by a motions judge.
 Closer to trial, the trial judge said at least twice, on the record, that the case should have been
severed, but felt that he was bound by the earlier ruling of the motions judge.
...
    [9] In this case, at the time of the original motion, it was unclear whether Pintoy would become
available as a witness, or whether his confession would be admitted at trial. As the case developed,
several things became clear. First, it was certain that Pintoy was unavailable. Second, Pintoy's
statement was admissible as a declaration against interest. Third, the admission of that statement
was incredibly harmful to Mabuti, while at the same time exculpatory as to Appellant Acosta.
With those facts available at time of trial, it would not have been offensive to have the trial judge
enter a ruling which he knew was appropriate. It was an abuse then for the judge not to use his
discretion.
                                                    VI.
    [10] It is clear that the Pintoy confession was not excluded because of admissibility problems.
The judge apparently believed, as do we, that the Pintoy confession was admissible as a statement
against interest. Hawaii Rules of Evidence 804(b)(3).
    [11][12][13] The Hawaii Rules of Penal Procedure (HRPP) provide relief from prejudicial
joinder of defendants in a trial, allowing severance when justice requires. HRPP Rule 14. Such a
determination is made by asking the question whether a defendant was denied his right to a fair
trial. State v. White, 5 Haw.App. 670, 706 P.2d 1331 (1985). "[T]he right to adduce evidence in
his behalf [is one] of the fundamentals inherent in the due process guarantee of a fair trial." State
v. Horn, 58 Haw. 252, 255, 566 P.2d 1378, 1380 (1977). In this case, Acosta was denied the right
to bring into evidence the full impact of the Pintoy confession. The State did not object to its
introduction, only co-defendant Mabuti prevented the presentation of this evidence. Based on this
piece of evidence alone, we feel that Acosta was denied a fair trial. In light of this conclusion, the
denial of the motion to sever Acosta's trial from that of co-defendant Mabuti was an abuse of
discretion.
                                                    VII.
    We see no abuse of discretion by the trial judge on any of Mabuti's points of error raised on
appeal. Accordingly, we affirm Mabuti's conviction.
    Based on our finding that Appellant Acosta was denied the right to a fair trial, we reverse his
conviction. As to Acosta's additional issues raised on appeal, we find no reversible error.
    Affirmed as to the conviction of Jeofrey Mabuti.
    Reversed on the conviction of Vicente Acosta and remanded for new trial.



Professor John Barkai, U.H. Law School - Evidence                                  Page - 66
STATE v. BATES 70 Haw. 343,                            771 P.2d 509 (1989)                   HRE 804(b)(3)
   Appellant Sonja Pua Bates appeals her conviction for Burglary in the Second Degree in violation of Hawaii
Revised Statutes (HRS) s 708-811, alleging several grounds of trial court error.... Appellant argues that the trial
court erred in excluding the exculpatory hearsay statements of her co-defendant Robert Williamson. ... We find
no reversible error and therefore affirm the conviction.
                                                         I.
   In the early morning hours of August 22, 1984, the police responded to a call regarding a possible burglary in
progress of a food concession stand at Ala Moana Park. As the police approached the concession stand on foot,
they observed Appellant seated at a picnic table outside the stand. Officer Michael Moses saw a window of the
concession stand being raised, and an arm extend from the inside holding three or four paper bags. He heard a
male voice say, "Here Sonja, take this." He then heard Appellant say under her breath, "The cops, the cops."
Moses entered the stand through the window and pursued and captured co-defendants Robert Perry and Robert
Williamson. He noticed a tattoo on Perry's shoulder reading "Sonya". The paper bags contained cigarettes and
loose change.

    While Williamson was lying handcuffed on the floor of the concession stand, he said, "Okay, I'm busted, I'm
busted. I just came in with the other guy." Later that morning, at the police station, Williamson confessed. When
asked about the female who was arrested along with him and Perry, Williamson stated he did not know who she
was, and that she was not with them and had nothing to do with the burglary.
                                                         ***
    Also prior to trial, Appellant moved in limine to admit the statements of co- defendant Williamson made at the
time of his arrest and during his interrogation. Williamson was currently incarcerated in Georgia and was
therefore unavailable to testify at trial. The court denied the motion, ruling that the statements were against penal
interest but were inadmissible under Hawaii Rules of Evidence (HRE) Rule 804(b)(3) because of a lack of
corroborating circumstances of trustworthiness.
    A jury found Appellant guilty of burglary in the second degree and this appeal followed.
                                                         ***
                                                          III.
    Appellant next argues that the trial court erred in refusing to admit the hearsay statements of co-defendant
Robert Williamson who was unavailable to testify at trial. Appellant claims that the court should have admitted
Williamson's allegedly exculpatory statement, "I'm busted, I'm busted. I just came with the other guy," made at
the time of his arrest, as an "excited utterance." She also argues that the court erred in disallowing Williamson's
exculpatory statements made during his confession because of a lack of corroborating circumstances of
trustworthiness.

   ...The court rejected Appellant's argument that Williamson's statement made at the time of his arrest was an
excited utterance. Rather, the court ruled that the statement was one against penal interest pursuant to HRE Rule
804(b)(3) which provides in pertinent part: ...

  The trial court made a preliminary finding that Robert Williamson was unavailable within the meaning of
Rule 804 since he was then incarcerated in the state of Georgia. This finding is not disputed by the parties.

    We cannot say that the trial court erred in characterizing Williamson's statement, "I'm busted, I'm busted. I
just came with the other guy" as a "statement against interest" under Rule 804(b)(3). We have recognized that
an out-of-court declaration may be admitted as a statement against interest "if the 'fact [asserted is] so palpably
against the declarant's interest that he must have realized it to be so when he made the statement.' " Shea v. City
& County of Honolulu, 67 Haw. 499, 509, 692 P.2d 1158, 1166 (1985). The statement in question was contrary
to the declarant's penal interest in tending to subject Williamson to criminal liability for the burglary and "a
reasonable man in his position would not have made the statement unless he believed it to be true." HRE
804(b)(3).


Professor John Barkai, U.H. Law School - Evidence                                             Page - 67
    Nor do we find error in the court's determination that both this statement and Williamson's later statement to
the police that he did not know the Appellant and she was not involved in the burglary were inadmissible because
of a lack of "corroborating circumstances clearly indicating the trustworthiness of the statements" as required by
Rule 804(b)(3).

    Appellant contends that the second statement was corroborated by the fact that Williamson voluntarily gave
up his right to counsel and confessed to the burglary. We disagree and conclude that insufficient corroborating
circumstances existed to permit introduction of the statements.

     Recently we recognized that, even when a hearsay declarant is unavailable, "his statement is admissible only
if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence
falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a
showing of particularized guarantees of trustworthiness." In re John Doe, 70 Haw. ----, 761 P.2d 299, 303 (1988).
 In the case of statements against penal interest, Rule 804(b)(3) explicitly requires corroboration. The second
sentence of the Rule provides: "A statement tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness
of the statement."

    Thus, before an exculpatory statement is admitted into evidence, the judge must make a preliminary finding
that sufficient corroboratory evidence has been offered. See 4 Weinstein's Evidence s 804(b)(3)[03] (1987). The
language of the second sentence of Rule 804(b)(3) demonstrates the obvious suspicion with which the drafters
of the Rule regarded a statement exposing "the declarant to criminal liability" but exculpating the accused. U.S.
v. Salvador, 820 F.2d 558, 561 (2nd Cir.1987). Moreover, the commentary to HRE Rule 804(b)(3) points out
that "[t]here is good reason" for the corroboration requirement--"a distrust of evidence of confessions by third
persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making
of the confession or in its contents[.]"

   Rule 803(b)(3) is not clear, however, on what type and how much corroboration is required for a defendant
to meet his burden under the Rule. Courts have looked to both the reliability of the declarant when the statement
was made, as well as corroboration of the truth of the declarant's statement, focusing on whether the evidence in
the record supported or contradicted the statement, or both. U.S. v. Salvador, supra, at 561.

   In this case, the circumstances did not clearly corroborate either Williamson's trustworthiness or the truth of
his statements. Williamson was not clearly trustworthy since the record indicates he may have known the
Appellant and therefore had a motive to lie for her. As to the truth of Williamson's statements, the trial judge
noted that the statements were in direct opposition to other evidence in the record, tending to show that Appellant
participated in the burglary as an accomplice by serving as a lookout and receiving the stolen goods as they were
passed through the window of the concession stand. The record reveals no independent evidence to corroborate
Williamson's claim that Appellant did not participate in the robbery.

    In light of the record, it was not error for the trial court to exclude co- defendant Williamson's hearsay
statements because of the lack of corroborating circumstances of trustworthiness.
...
    We find no merit in Appellant's argument. Accordingly, the Appellant's conviction is affirmed.




Professor John Barkai, U.H. Law School - Evidence                                             Page - 68
WILLIAMSON v. U.S., 512 U.S. 594 (1994)
    Justice O'CONNOR delivered the opinion of the Court, except as to Part II-C.
    In this case we clarify the scope of the hearsay exception for statements against penal interest. Fed.Rule Evid.
804(b)(3).
                                                                I
    A deputy sheriff stopped the rental car driven by Reginald Harris for weaving on the highway. Harris consented to
a search of the car, which revealed 19 kilograms of cocaine in two suitcases in the trunk. Harris was promptly arrested.
    Shortly after Harris' arrest, Special Agent Donald Walton of the Drug Enforcement Administration (DEA)
interviewed him by telephone. During that conversation, Harris said that he got the cocaine from an unidentified Cuban
in Fort Lauderdale; that the cocaine belonged to petitioner Williamson; and that it was to be delivered that night to a
particular dumpster. Williamson was also connected to Harris by physical evidence: The luggage bore the initials of
Williamson's sister, Williamson was listed as an additional driver on the car rental agreement, and an envelope
addressed to Williamson and a receipt with Williamson's girlfriend's address were found in the glove compartment.
    Several hours later, Agent Walton spoke to Harris in person. During that interview, Harris said he had rented the
car a few days earlier and had driven it to Fort Lauderdale to meet Williamson. According to Harris, he had gotten the
cocaine from a Cuban who was Williamson's acquaintance, and the Cuban had put the cocaine in the car with a note
telling Harris how to deliver the drugs. Harris repeated that he had been instructed to leave the drugs in a certain
dumpster, to return to his car, and to leave without waiting for anyone to pick up the drugs.
    Agent Walton then took steps to arrange a controlled delivery of the cocaine. But as Walton was preparing to leave
the interview room, Harris "got out of [his] chair ... and ... took a half step toward [Walton] ... and ... said, ... 'I can't let
you do that,' threw his hands up and said 'that's not true, I can't let you go up there for no reason.' " App. 40. Harris told
Walton he had lied about the Cuban, the note, and the dumpster. The real story, Harris said, was that he was
transporting the cocaine to Atlanta for Williamson, and that Williamson was traveling in front of him in another rental
car. Harris added that after his car was stopped, Williamson turned around and drove past the location of the stop,
where he could see Harris' car with its trunk open. Ibid. Because Williamson had apparently seen the police searching
the car, Harris explained that it would be impossible to make a controlled delivery. Id., at 41.
    Harris told Walton that he had lied about the source of the drugs because he was afraid of Williamson. Id., at 61,
68; see also id., at 30-31. Though Harris freely implicated himself, he did not want his story to be recorded, and he
refused to sign a written version of the statement. Id., at 24-25. Walton testified that he had promised to report any
cooperation by Harris to the Assistant United States Attorney. Walton said Harris was not promised any reward or
other benefit for cooperating. Id., at 25-26.
    Williamson was eventually convicted of possessing cocaine with intent to distribute, conspiring to possess cocaine
with intent to distribute, and traveling interstate to promote the distribution of cocaine, 21 U.S.C. ss 841(a)(1), 846;
18 U.S.C. s 1952. When called to testify at Williamson's trial, Harris refused, even though the prosecution gave him
use immunity and the court ordered him to testify and eventually held him in contempt. The District Court then ruled
that, under Rule 804(b)(3), Agent Walton could relate what Harris had said to him: "The ruling of the Court is that the
statements ... are admissible under [Rule 804(b)(3) ], which deals with statements against interest. "First, defendant
Harris' statements clearly implicated himself, and therefore, are against his penal interest. "Second, defendant Harris,
the declarant, is unavailable. "And third, as I found yesterday, there are sufficient corroborating circumstances in this
case to ensure the trustworthiness of his testimony. Therefore, under [United States v. Harrell, 788 F.2d 1524 (CA11
1986) ], these statements by defendant Harris implicating [Williamson] are admissible." App. 51-52.
    Williamson appealed his conviction, claiming that the admission of Harris' statements violated Rule 804(b)(3) and
the Confrontation Clause of the Sixth Amendment. The Court of Appeals for the Eleventh Circuit affirmed without
opinion, judgt. order reported at 981 F.2d 1262 (1992), and we granted certiorari. 510 U.S. ----, 114 S.Ct. 681, 126
L.Ed.2d 649 (1994).

                                                               ***




Professor John Barkai, U.H. Law School - Evidence                                                        Page - 69
In our view, the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory
statements, even if they are made within a broader narrative that is generally self-inculpatory. The district court may
not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller
confession, and this is especially true when the statement implicates someone else. "[T]he arrest statements of a
codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the
defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible
than ordinary hearsay evidence." Lee v. Illinois, 476 U.S. 530, 541 (1986).            ***
    We also do not share Justice KENNEDY's fears that our reading of the Rule "eviscerate[s] the against penal interest
exception," post, at 2443 (internal quotation marks omitted), or makes it lack "meaningful effect," post, at 2443. There
are many circumstances in which Rule 804(b)(3) does allow the admission of statements that inculpate a criminal
defendant. Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather
than merely attempts to shift blame or curry favor.
    For instance, a declarant's squarely self-inculpatory confession--"yes, I killed X"--will likely be admissible under
Rule 804(b)(3) against accomplices of his who are being tried under a co-conspirator liability theory. See Pinkerton
v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). Likewise, by showing that the
declarant knew something, a self- inculpatory statement can in some situations help the jury infer that his confederates
knew it as well. And when seen with other evidence, an accomplice's self-inculpatory statement can inculpate the
defendant directly: "I was robbing the bank on Friday morning," coupled with someone's testimony that the declarant
and the defendant drove off together Friday morning, is evidence that the defendant also participated in the robbery.
    Moreover, whether a statement is self-inculpatory or not can only be determined by viewing it in context. Even
statements that are on their face neutral may actually be against the declarant's interest. "I hid the gun in Joe's
apartment" may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is
certainly self- inculpatory. "Sam and I went to Joe's house" might be against the declarant's interest if a reasonable
person in the declarant's shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and
Sam's conspiracy. And other statements that give the police significant details about the crime may also, depending on
the situation, be against the declarant's interest. The question under Rule 804(b)(3) is always whether the statement
was sufficiently against the declarant's penal interest "that a reasonable person in the declarant's position would not
have made the statement unless believing it to be true," and this question can only be answered in light of all the
surrounding circumstances.
    Justice KENNEDY, with whom THE CHIEF JUSTICE and Justice THOMAS join, concurring in the judgment.
                                                              ***
    In sum, I would adhere to the following approach with respect to statements against penal interest that inculpate the
accused. A court first should determine whether the declarant made a statement that contained a fact against penal
interest. See ante, at 2437 (opinion of O'CONNOR, J.) ("Some of Harris' confession would clearly have been
admissible under Rule 804(b)(3)"). If so, the court should admit all statements related to the precise statement against
penal interest, subject to two limits. Consistent with the Advisory Committee Note, the court should exclude a
collateral statement that is so self-serving as to render it unreliable (if, for example, it shifts blame to someone else for
a crime the defendant could have committed). In addition, in cases where the statement was made under circumstances
where it is likely that the declarant had a significant motivation to obtain favorable treatment, as when the government
made an explicit offer of leniency in exchange for the declarant's admission of guilt, the entire statement should be
inadmissible.




Professor John Barkai, U.H. Law School - Evidence                                                    Page - 70
DECLARATION AGAINST INTEREST (DAI) - MATCHING QUESTIONS                                        U.H. Law School Evidence

Match the Numbered Questions with the Alpha Answers on the next page

1 What's the rationale for SAI?

2 How does SAI differ from the admissions exception? Who makes the statement? Who can introduce it? What is the
  availability requirement? Does it have to be against interest?

3 Are the following statements, made by unavailable declarants, admissible?
  I owe John $1,000

4 John owes me $1,000

5 John has paid me $1,000

6 I owe John $1,000. [said during a dispute over whether the debt is $2,000.]

7 A: I don't have clear title to my house. B: I don't own this car; I borrowed it from a friend. C: I'm just renting, I don't
  own this house.

8 Day 1, P brings car to a service station and a mechanic works on the brakes. Day 2, mechanic quits. Day 3, P has
  a auto accident. Day 4, mechanic learns of the accident and tells a friend, "I forgot to finish the brake job on Day
  2."

   D is charged with the murder of V. D wants to offer at trial the following statements of Joe, who is dead. Assume
   Joe is a friend. Are the statements admissible?

9 An oral statement to W by Joe: "I killed V."

10 A note, signed by Joe, saying, "I killed V," written just before Joe committed suicide.

11 An oral statement to W by Joe: "D is not guilty of killing V."

12 An oral statement to W by Joe: "Frank and I killed V. D had nothing to do with it."

13 Suppose the prosecutor offers, through W, Joe's statement, "D and I killed V."

14 How would you answer the previous question if Joe's statement was made to the police after Joe was arrested for the
   murder and made the statement while negotiating a plea bargain?




Professor John Barkai, U.H. Law School - Evidence                                                    Page - 71
A This statement has exculpatory and inculpatory parts. It is being offered to inculpate the defendant. Some courts
  require the prosecutor to provide corroborating circumstances. Is this a way around the Bruton problem (confession
  of non-testifying co-defendant)? A potential Ortiz problem (confrontation) in Hawaii.

B A self-serving statement that is not a SAI, hence not admissible.

C ANY person. Offered by ANY party. Unavailable. Against interest when made.

D Admissibility is questionable. While this appears to be a against penal interest, there is an argument to be made that
  it is not against interest. Could Joe be prosecuted?

E Admissible. A SAI against pecuniary interest acknowledging payment.

F Many courts would exclude such statements. Great weight would be given to the fact that it might not be against
  interest, in fact motivation for the statement might be to "curry favor" with the authorities.

G A self-serving statement that is not a SAI, hence not admissible. Must look at the full context.

H Not admissible. It is not against Joe's interest; it does not imply Joe's guilt. It is an opinion.

I   Admissible. A classic SAI - against the declarant's pecuniary (financial) interest.

J   Admissible. A classic exculpatory statement, clearly against the declarant's penal interest. Needs corroboration.

K Admissible SAI. Tends to expose declarant to civil liability. This not an admission! Why not?

L Admissible. Non-ownership of real or personal property could be contrary to proprietary interest.

M People don't make statements damaging to themselves unless they are satisfied that the statements are true.

N This is a "we" statement which has both exculpatory and inculpatory parts. Under Willaimson, the part of the
  statement that does not inculpate the declarant would probably not be admissible. Previously, courts either
  admitted it all, excluded it all, or only admitted the part clearly against the declarant's interest.




Professor John Barkai, U.H. Law School - Evidence                                                      Page - 72
HEW v. ARUDA, 51 Haw. 451, 462 P.2d 476
Statement of Recent Perception 804(b)(5)
   Joseph Hew ... [t]he plaintiff was the bookkeeper for the Aruda Brothers Ranch from 1957
to 1965. ... the plaintiff claimed that the [Aruda brothers] orally agreed to rent his ... interest
in ... land.... The oral agreement was alleged to have been made on October 1, 1957 and this
suit was brought nine years, three months and 22 days later on January 23, 1967.
                                                ***
   As part of his theory that no agreement to pay rent existed, the defendant attempted to
introduce an oral statement of the deceased managing partner, Enos Aruda, to Judge Wendell
Crockett, his attorney at that time. The oral statement was to the effect that there were no
outstanding bills against the partnership other than some miscellaneous bills then owing which
were irrelevant to the present suit. The testimony of Judge Crockett was stricken as hearsay
upon timely motion by the plaintiff. The defendant argued that the hearsay statement was
admissible as rebuttal because the declarant had since died, making the statement a necessary,
if not crucial, part of the defendant's case.
   The trial court found for the plaintiff...
   The defendant appeals from the judgment contending (1) that the testimony of Judge
Crockett is admissible to show the non-existence of the rental agreement or the lack of assent
to the account rendered...
   We reverse and remand for a new trial.
   A threshold question raised at trial was whether the alleged rental agreement existed or was
a fabrication of the plaintiff, who was the bookkeeper for the partnership. The plaintiff had full
access to the financial records of the partnership which were used at trial to prove the
agreement and the accounts stated. He had every opportunity to adjust the records to suit his
purposes. Therefore, Enos Aruda's statement to Judge Crockett that he had no recollection of
any further outstanding bills was relevant to the issue of the existence of the debt and the
account stated. If believed by the trier of fact, it could have been dispositive of the entire, case.
 There was no way of proving the matter except by hearsay testimony since the original
declarant was forever unavailable because of his death.

   Although not adopted in Hawaii, the so called 'dead man's statute' as it operated in other
jurisdictions totally disqualified as a witness the survivor of a transaction with a decedent when
the survivor's testimony was offered against the decedent's estate.... This archaic rule of
disqualification was based upon a belief that without it fraudulent claims against decedents'
estates might prevail. It was also justified as a means of putting the parties in equal positions
at trial. 'If death has closed the lips of the one party, the policy of the law is to close the lips of
the other.'... This latter rationale assumed that statements of the decedent reported by third
persons or by the survivor would be barred as violative of the hearsay rule.
   Even without a 'dead man's statute', the hearsay rule excluding statements of a decedent
reported by third persons or the survivor lingers on, as demonstrated by the present case. A
blanket rule of exclusion would keep what might be trustworthy and necessary evidence from
being admitted. Obviously, exclusion of such evidence gives an undue advantage to the
opposing party who is not disqualified by a dead man's statute but is still able to invoke the
hearsay rule.


Professor John Barkai, U.H. Law School - Evidence                                  Page - 73
   This court has found convenient exceptions to the hearsay rule in order to allow the
admission of statements by a decedent. See Teixeira v. Teixeira, 37 Haw. 64 (1945) (state of
mind of deceased donor admissible in action to set aside a gift); Territory v. Duvauchelle, 28
Haw. 350 (1925) (statement of decedent-victim to show his presence in the vicinity of an
alleged murder at the time the murder was allegedly committed). Other states have had the
foresight to enact modern legislation or promulgate enlightened rules of evidence making
statements of decedents admissible in certain instances without resort to case-by-case
exceptions....
   The shortcomings of the rule barring statements of decedents are obvious. Relevant and
competent evidence, otherwise admissible, is excluded even when it is the only available
evidence. This forces the finder of fact to decide a case with a minimum of information
concerning the facts in issue. We think this is an unsound approach to the pursuit of truth in an
adversary context.
   Since the decedent is obviously unavailable, there is great need for this particular testimony
to be introduced into evidence. No alternative means of introducing the evidence exists.
While the great vice of hearsay statements is the potential lack of trustworthiness, this single
liability is not enough to justify the exclusion of a decedent's statement when accuracy can be
shown in other ways. By focusing the inquiry on the circumstances surrounding the declarant's
position when he made the statement, a determination of trustworthiness can be made by the
trial judge. Certain safeguards must be met in order to guarantee that trustworthiness, however.
 We hold that a statements is not excluded by the hearsay rule if the declarant is unavailable as
a witness and the court finds that the statement was made in good faith, upon the personal
knowledge of the declarant, and while his recollection was clear, unless other circumstances
were present indicating a clear lack of trustworthiness. This very reasonable limitation of
trustworthiness is necessary since the party against whom the statement is offered has no
opportunity to test the hearsay by cross-examination.[FN1]

   FN1. A clear lack of trustworthiness might be shown by a statement made 'in response to the
instigation of a person engaged in investigating, litigating, or settling a claim,' or 'in
contemplation of pending or anticipated litigation in which he (the declarant) was interested.'

   In the present case Enos Aruda's statement to his attorney was an attempt to explain the state
of the partnership's current financial affairs. There is no evidence that his recollection was
other than clear or that the statement was not made in good faith. The defendant should at least
be given the chance to prove on retrial that the statement was made under circumstances which
offer the necessary assurances of accuracy consistent with the guidelines set down in this
opinion.
                                                ***
   Reversed and remanded for a new trial.




Professor John Barkai, U.H. Law School - Evidence                             Page - 74
                                     HEARSAY "RESIDUAL" or CATCH-ALL EXCEPTIONS
                                 HAWAII                                             FEDERAL - [Eff. Dec. 1, 1997]
 803(b)(24) & 804(b)(7) Other exceptions.                           807 Residual Exception. A statement not specifically
 A statement not specifically covered by any of the exceptions      covered by Rule 803 or 804 but having equivalent
 in this paragraph (b) but having equivalent circumstantial         circumstantial guarantees of trustworthiness, is not excluded
 guarantees of trustworthiness, if the court determines that        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 (B) the statement is more probative on the point for which it is
 offered than any other evidence which the proponent can          offered than any other evidence which the proponent can
 procure through reasonable efforts, and                          procure through reasonable efforts; and

 (B) the general purposes of these rules and the interests of       (C) the general purposes of these rules and the interests of
 justice will best be served by admission of the statement into     justice will best be served by admission of the statement into
 evidence.                                                          evidence.

 However, a statement may not be admitted under this                However, a statement may not be admitted under this
 exception unless the proponent of it makes known to the            exception unless the proponent of it makes known to the
 adverse party sufficiently in advance of the trial or hearing to   adverse party sufficiently in advance of the trial or hearing to
 provide the adverse party with a fair opportunity to prepare to    provide the adverse party with a fair opportunity to prepare to
 meet it, the proponent's intention to offer the statement and      meet it, the proponent's intention to offer the statement and
 the particulars of it, including the name and address of the       the particulars of it, including the name and address of the
 declarant.                                                         declarant.




Professor John Barkai, U.H. Law School - Evidence                     Page - 75
STATE v. DURRY, 4 Haw.App. 222,                                      665 P.2d 165 (1983)
                                                                                                                 803(b)(24)
       Defendant Maria Durry (Durry) appeals her conviction of the offenses of manslaughter... and robbery...
       Durry contends ... that the court erred in admitting hearsay testimony against her. We find no error and affirm.
       On September 25, 1979 Durry was arrested for questioning on the charges of murder and robbery in the first degree
and second degree... On February 10, 1980 the Oahu Grand Jury returned an indictment against her and co-defendants Mika
Faamatau (Faamatau) and Maelega Fereti (Fereti) for murder and robbery in the first degree.
                                                    HEARSAY TESTIMONY
       Durry argues that the court erred in allowing her twelve-year-old son to testify as to what Faamatau told him on the
evening of the murder, contending that the testimony was inadmissible hearsay....
       The testimony of Durry's son recounts a hearsay statement made by co-defendant Faamatau. It is clearly inadmissible
unless it qualifies as an exception under Rule 803(b), Hawaii Rules of Evidence (HRE), chapter 626, Hawaii Revised
Statutes (effective January 1, 1981), and we hold that the only exception that could cover the statement is 803(b)(24) [FN8]
which states:
       FN8. Durry argues that admissibility is covered by Rule 803(a)(2)C (statement of co-conspirator) and because it is
inadmissible under Rule 803(a)(2)C, it cannot be made admissible under Rule 803(b)(24). We agree that the statement is
inadmissible under 803(a)(2)C; however, we do not agree that the exceptions are mutually exclusive.
       The State argues that the testimony of Durry's son is trustworthy for a number of reasons. The argument is completely
erroneous. The trustworthiness requirement of the rule relates to the hearsay statement that is being testified to, not the
witness' testimony. Nonetheless, we find the statement was trustworthy, probative and admissible.
       However, we are concerned by the fact that the record does not indicate that the trial court in fact made a determination
that the evidence was more probative than other evidence which the State could procure through reasonable efforts, and that
admission of the statement would best serve the purposes of the HRE and the interests of justice.
       The commentary to Rule 803(b)(24) indicates that it is a residual exception designed to allow flexibility to the courts
in the admission of hearsay evidence. However, "the exception is not designed to open the door widely for otherwise
inadmissible evidence; and to safeguard against abuse the requirements of trustworthiness and a high degree of relevance
circumscribe the exercise of judicial discretion."...
       In 11 Moore's Federal Practice s 803(24)[7] (2d ed. 1982), Professor Moore indicates that Rule 803(24) was intended
to be used rarely and in exceptional circumstances. Professor Moore quotes from the report of the U.S. Senate Committee
on the Judiciary that "[t]he committee does not intend to establish a broad license for trial judges to admit hearsay statements
that do not fall within one of the other exceptions[.]"
       Professor Moore also points out that although the rule contains no specific requirement that the court make any finding
of the facts and circumstances indicating trustworthiness and necessity so as to justify admission, the committee report
clearly indicates that Congress intended for such matters to be stated in the record.
       Our research reveals two federal appellate cases dealing specifically with Rule 803(24), Federal Rules of Evidence. In
United States v. Guevara, 598 F.2d 1094 (7th Cir.1978), the court held that Rule 803(24) requires that the district court make
findings with respect to the evidence sought to be admitted. In Huff v. White Motor Corp., 609 F.2d 286 (7th Cir.1979), the
court did not so hold, but indicated that such a record would greatly aid the appellate court in reviewing a ruling made in the
exercise of the court's discretion. The appellate court then examined the evidence and found that the court should have
admitted the evidence. We agree that the trial court should make its determinations a part of the record, so as to comport
with the intent of the rule and provide a record for appellate review.
       In the light of the foregoing considerations and the principles set forth in Rule 102, HRE, we hold that when a court
relies on Rule 803(b)(24), sua sponte or at the urging of counsel, for admission of hearsay evidence not coming within the
other exceptions of Rule 803(b), the court should state on the record the basis for its determination of trustworthiness,
probative value, and necessity. Upon doing so, it is not necessary to make an affirmative finding that the general purposes
of the rules and the interests of justice will be served by admission of the evidence.
       Notwithstanding the court's failure to place its finding on the record in this case, we think the evidence was properly
admitted and no reversible error was committed. The requirement of trustworthiness was met, since the statement was by
Faamatau and concerned his involvement in the offense. We think the statement was more probative than other evidence
available and the purpose of the rules of evidence to ascertain the truth was served by its admission.
       We also find that defendant was not prejudiced by the evidence. Faamatau's statement in fact did not directly implicate
Durry. Moreover, as we stated earlier, Durry admitted her presence during the offense and the witness Leai Sinai Eli and
co-defendant Fereti testified to her complicity. The evidence was harmless beyond a reasonable doubt. Affirmed.




Professor John Barkai, U.H. Law School - Evidence                                                      Page - 76
                    CHARACTER
                     EVIDENCE
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook

R404(a)
Under Rule 404(a)(2), the accused may offer evidence of the alleged victim's character (in the form of
reputation or opinion testimony) to show that the alleged victim acted in conformity with his character. See
United States v. Gulley, 526 F.3d 809, 817-19 (5th Cir. 2008) (allowing reputation evidence, but excluding
specific acts evidence).


R405. Rule 405 prescribes the permissible methods of proving the character or trait of character of a
person. It must be viewed in relation to Rule 404, which severely restricts the use of character evidence
in any form for the purpose of proving a person's conduct on a particular occasion.
     (1) Character in issue versus character used circumstantially. A person's character may be relevant in
either of two ways:
         (i) Character in issue. A trait of the person's character may be, in itself, an ultimate issue
        in the case under the governing substantive law ("an element of a charge, claim, or
        defense"). This relatively rare situation is known as "character in issue." The most important
        example of character in issue in practice arises in the so-called "negligent entrustment" case.
        If plaintiff contends that defendant was negligent in entrusting a dangerous instrumentality to
        a particular servant, the trait of incompetence of the servant to handle the instrumentality
        safely is an element of the claim. In re Aircrash In Bali, Indonesia, 684 F.2d 1301, 1314-15
        (9th Cir.1982); Crawford v. Yellow Cab Co., 572 F.Supp. 1205, 1210 (N.D.I11.1983).
         (ii) Character used circumstantially (character to prove conduct). A trait of the person's
        character, though not an element of a charge, claim, or defense, may be logically relevant for
        the circumstantial inference that the person acted in a particular way on a particular
        occasion. For example, it is not an element of a charge of murder that the defendant is a
        violent person. United States v. Gulley, 526 F.3d 809, 819 (5th Cir.2008), cert. denied, _ U.S.
        _, 129 S.Ct. 159, 172 L.Ed.2d 116 (2008). But his violent or peaceable disposition would be
        logically relevant to whether he committed the murder, because a violent man is at least
        somewhat more likely to commit a murder than a peaceable man.




Professor John Barkai, U.H. Law School - Evidence                                       Page - 77
MICHELSON v. UNITED STATES, 335 U.S. 469 (1948)
   Mr. Justice JACKSON delivered the opinion of the Court.
   In 1947 petitioner Michelson was convicted of bribing a federal revenue agent. The Government proved a large
payment by accused to the agent for the purpose of influencing his official action. The defendant, as a witness on his
own behalf, admitted passing the money but claimed it was done in response to the agent's demands, threats,
solicitations, and inducements that amounted to entrapment. It is enough for our purposes to say that determination of
the issue turned on whether the jury should believe the agent or the accused.
                                                         ***
   Defendant called five witnesses to prove that he enjoyed a good reputation. Two of them testified that their
acquaintance with him extended over a period of about thirty years and the others said they had known him at least half
that long. A typical examination in chief was as follows:

Q. Do you know the defendant Michelson?
A. Yes.

Q. How long do you know Mr. Michelson?
A. About 30 years.

Q. Do you know other people who know him?
A. Yes.

Q. Have you have occasion to discuss his reputation for honesty and truthfulness and for being a law-abiding citizen?

A. It is very good.

Q. You have talked to others? A. Yes.

Q. And what is his reputation? A. Very good.

   These are representative of answers by three witnesses; two others replied, in substance, that they never had heard
anything against Michelson.
   On cross-examination, four of the witnesses were asked, in substance, this question: 'Did you ever hear that Mr.
Michelson on March 4, 1927, was convicted of a violation of the trademark law in New York City in regard to
watches?' This referred to the twenty-year-old conviction about which defendant himself had testified on direct
examination. Two of them had heard of it and two had not.

   To four of these witnesses the prosecution also addressed the question the allowance of which, over defendant's
objection, is claimed to be reversible error:

   'Did you ever hear that on October 11th, 1920, the defendant, Solomon Michelson, was arrested for receiving stolen
goods?'

   None of the witnesses appears to have heard of this.

    The trial court asked counsel for the prosecution, out of presence of the jury, 'Is it a fact according to the best
information in your possession that Michelson was arrested for receiving stolen goods?' Counsel replied that it was,
and to support his good faith exhibited a paper record which defendant's counsel did not challenge.
    The judge also on three occasions warned the jury, in terms that are not criticized, of the limited purpose for which
this evidence was received.
***
    Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution
to any kind of evidence of a defendant's evil character to establish a probability of his guilt.
                                                          ***




Professor John Barkai, U.H. Law School - Evidence                                                 Page - 78
    When the defendant elects to initiate a character inquiry, another anomalous rule comes into play. Not only is he
permitted to call witnesses to testify from hearsay, but indeed such a witness is not allowed to base his testimony on
anything but hearsay. [FN12] What commonly is called 'character evidence' is only such when 'character' is employed
as a synonym for 'reputation.' The witness may not testify about defendant's specific acts or courses of conduct or his
possession of a particular disposition or of benign mental and moral traits; nor can he testify that his own acquaintance,
observation, and knowledge of defendant leads to his own independent opinion that defendant possesses a good general
or specific character, inconsistent with commission of acts charged. The witness is, however, allowed to summarize
what he has heard in the community, although much of it may have been said by persons less qualified to judge than
himself.

    ...The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which
the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. The
prosecution may pursue the inquiry with contradictory witnesses [FN15] to show that damaging rumors, whether or not
well-grounded, were aflot-- for it is not the man that he is, but the name that he has which is put in issue. Another hazard
is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases
his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own
conclusion. [FN16] It may test the sufficiency of his knowledge by asking what stories were circulating concerning
events, such as one's arrest, about which people normally comment and speculate. Thus, while the law gives defendant
the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense
charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.
                                                             ***
    Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a
witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to
undermine the trustworthiness of a witness.

    Arrest without more may nevertheless impair or cloud one's reputation. False arrest may do that. Even to be
acquitted may damage one's good name if the community receives the verdict with a wink and chooses to remember
defendant as one who ought to have been convicted. A conviction, on the other hand, may be accepted as a misfortune
or an injustice, and even enhance the standing of one who mends his ways and lives it down. Reputation is the net
balance of so many debits and credits that the law does not attach the finality to a conviction when the issue is reputation,
that is given to it when the issue is the credibility of the convict.
    The inquiry as to an arrest is permissible also because the prosecution has a right to test the qualifications of the
witness to bespeak the community opinion. If one never heard the speculations and rumors in which even one's friends
indulge upon his arrest, the jury may doubt whether he is capable of giving any very reliable conclusions as to his
reputation.
                                                             ***
    ... However, limiting instructions on this subject are no more difficult to comprehend or apply than those upon
various other subjects; for example, instructions that admissions of a co-defendant are to be limited to the question of
his guilt and are not to be considered as evidence against other defendants, and instructions as to other problems in the
trial of conspiracy charges. A defendant in such a case is powerless to prevent his cause from being irretrievably
obscured and confused; but, in cases such as the one before us, the law foreclosed this whole confounding line of
inquiry, unless defendant thought the net advantage from opening it up would be with him. Given this option, we think
defendants in general and this defendant in particular have no valid complaint at the latitude which existing law allows
to the prosecution to meet by cross- examination an issue voluntarily tendered by the defense.
    We end, as we began, with the observation that the law regulating the offering and testing of character testimony
may merit many criticisms.
                                                             ***
 We concur in the general opinion of courts, textwriters and the profession that much of this law is archaic, paradoxical
and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned
counter-privilege to the other. But somehow it has proved a workable even if clumsy system when moderated by
discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque
structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice.
                                                             ***
 The judgment is affirmed.




Professor John Barkai, U.H. Law School - Evidence                                                   Page - 79
MEYER v. CITY AND COUNTY OF HONOLULU
69 Haw. 8, 731 P.2d 149 (1986)

LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.
  PADGETT, Justice.

    This is an appeal in a damage suit arising out of alleged police brutality. The appeal is taken from two orders
granting partial summary judgment, an order denying plaintiffs' motion in limine and granting in part and denying in
part defendants' motion in limine, and a judgment filed after a jury trial. The Intermediate Court of Appeals (ICA)
affirmed the judgment, 729 P.2d 388.

   Because the ICA held that HRE 404, in effect, overruled the decision of this court in Feliciano v. City and County,
62 Haw. 88, 611 P.2d 989 (1980), we granted certiorari.

   On May 30, 1985, the trial judge granted an order in limine providing in part: IT IS FURTHER ORDERED that
Defendants' motion to exclude evidence regarding the alleged propensity for violence of the individual Defendants is
granted; Defendants' motion to exclude any prior complaints relating to alleged brutality is granted[.] While we affirm
the two orders of partial summary judgment and the rest of the order of May 30, 1985, we reverse as to the two portions
just quoted.

   On May 29, 1980, this court stated in Feliciano, supra: [W]here in a civil action for assault there is an issue as to
who committed the first act of aggression, evidence of the good or bad reputation of both plaintiff and defendant for
peacefulness is also admissible.... [T]here is recognized a special need to know the dispositions of the parties so as to
judge their probable acts. 62 Haw. at 92, 611 P.2d at 992.

    On the same day, May 29, 1980, Act 164 of the Session Laws of Hawaii 1980, enacting the Hawaii Rules of
Evidence, was approved by the governor, to take effect January 1, 1981. The ICA held that the ruling just quoted in
Feliciano was abrogated by the adoption of HRE 404, so that character evidence was inadmissible in a civil assault case
where the question was who committed the first act of aggression. The ICA held that because HRE 404(a)(1) stated:
Character evidence generally. Evidence of a person's character or trait of his character is not admissible for the purpose
of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence
of a pertinent trait of his character offered by an accused, or by the prosecution to rebutt the same; ... it applied only in
criminal cases since, in a civil case, the defendant was not "an accused" and the plaintiff was not "the prosecution".

   [1] While it is true that character evidence is more likely to become an issue in a criminal than a civil case, we think
the ICA construed the terms "accused" and "prosecution" too narrowly and that Feliciano, supra, is still good law.

   The ICA went on to hold that evidence of other wrongs or acts by the defendants were not admissible under HRE
404(b). That section provides: 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 that he acted 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. Again, we disagree with the ICA.

   [2] In the analogous homicide situation, where the contention is that the decedent was the aggressor, we have noted
that "[T]here is no substantial reason against evidencing the character (of a deceased victim) by particular instances of
violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial
court's discretion; and the prohibitory considerations applicable to an accused's character have here little or no force."
State v. Basque, 66 Haw. 510, 514, 666 P.2d 599, 602 (1983), quoting 1 Wigmore on Evidence s 198 (3d ed. 1940)
(emphasis in original). The same considerations would apply in civil assault and battery cases. Such evidence may be
admissible where the issue is the identity of the original aggressor.

   Affirmed in part, and reversed in part and remanded for further proceedings consistent herewith.




Professor John Barkai, U.H. Law School - Evidence                                                    Page - 80
STATE v. KEKONA, 120 Hawai'i 420, 209 P.3d 1234 (2009) ICA opinion
                                                                       HRE 404(a) – type of evidence
Background: Defendant was convicted of attempted murder in the second degree, carrying, using, or
threatening to use a firearm in the commission of a separate felony, ownership or possession prohibited of
any firearm or ammunition by a person convicted of certain crimes, and place to keep pistol or revolver.
Defendant appealed.

Holdings: The Intermediate Court of Appeals, Watanabe, J., held that:
(1) evidence of victim's prior abuses of defendant's current girlfriend was relevant and admissible;
(2) defendant's failure to provide reasonable notice in advance of trial of the evidence of the prior abuse did
not preclude defendant from introducing that evidence;… and
(4) prosecutor's misstatement of the law of self-defense was not harmless-beyond-a-reasonable-doubt.
Vacated and remanded for new trial.
***
Kekona contends that: (1) the circuit court erred when it granted the motion in limine filed by
Plaintiff-Appellee State of Hawai‗i (State or prosecution) to prohibit him from introducing evidence of alleged
acts of prior physical abuse of Kekona's girlfriend, Tammy Antonio (Antonio), by Sargent Ah Loo (Ah Loo),
with whom Antonio had three children (motion in limine);

We vacate the judgment and remand this case for a new trial.

The charges against Kekona stemmed from an incident that occurred on December 27, 2005 in the parking
lot of the Waimalu Shopping Plaza. During the incident, Kekona, who was the front-seat passenger in a
purple Eagle Vision sedan (car or purple car) driven by Antonio, got out of the car and shot at the windshield
on the driver's side of a blue Dodge Caravan (van or blue van) driven by Ah Loo….Prior to the
commencement of trial, the circuit court held a hearing on a motion in limine that the State had filed which
sought in part to prohibit ―any comment upon or reference to any allegation that [Ah Loo] had physically
abused [Antonio] prior to [the day of the alleged offense][.]‖

The prosecution argued that Kekona's failure to comply with Hawaii Rules of Evidence HRE) Rule 404(b)
and provide specific notice of particularized events of abuse, including the nature of the allegations of abuse,
and the date and location of the abuse, precluded the admission of such evidence.

The circuit court granted the State's motion ―as to prior physical abuse on grounds of relevance, confusion
of the issues, [and] undue prejudice‖ and denied the motion without prejudice as to the issue of ―the prior
conduct of ramming the cars. That's probative with respect to issues of credibility.‖

[Discussion of HRE 404(a)(2)]

The commentary to HRE Rule 404(a)(2) observes that the subsection is mainly applicable to homicide and
assault cases. The commentary further states:
   In State v. Lui, 61 H.[Haw.] 328, 603 P.2d 151 (1979), the court observed: ―[A] defendant who claims
   self-defense to a charge of homicide is permitted to introduce evidence of the deceased's violent or
   aggressive character either to demonstrate the reasonableness of his apprehension of immediate
   danger or to show that the decedent was the aggressor.‖ For the first purpose, noted the Lui court, there
   must be a foundation showing that the accused knew of the deceased's character ―or of the specific acts
   of violence committed.‖ But such a foundation ―is not required where the factual issue is to determine the
   aggressor.‖

In State v. Basque, 66 Haw. 510, 511, 666 P.2d 599, 601 (1983), the State filed a motion in limine to
preclude the defendant from arguing to the jury or introducing into evidence the criminal record of the


Professor John Barkai, U.H. Law School - Evidence                                         Page - 81
deceased victim. The defendant maintained that ―such evidence was admissible to show who was the
aggressor in the incident, a critical aspect [of his] claim that he acted in self-defense.‖ After balancing the
State's interests against those of the defendant, the trial court granted the motion, holding that jurors might
place too much emphasis on the deceased's criminal record.

On appeal, the supreme court held that the trial court abused its discretion in granting the motion. The
supreme court initially observed that the testimony at trial was ―unclear and conflicting as to who was the
aggressor‖ and ―uncontroverted testimony was adduced that the deceased had drunk about eight beers that
afternoon, and in approaching [the defendant], had pushed aside [the defendant's former girlfriend] and
shaken the car.‖ The supreme court remarked:

Given such testimony, it is evident that a factual question existed as to who was the aggressor in this
  case. ....

  We also noted in Lui that where the issue of who was the aggressor is in dispute, the defendant need not
  lay a foundation showing that he knew of the victim's character or prior bad acts. This is because ―proof
  of the deceased's violent and turbulent character in this situation is circumstantial evidence of the
  likelihood of his being the aggressor and of the absence of provocation on the part of the defendant.‖

  It was thus not necessary for [the defendant] to have laid a foundation as to what he knew of the
  deceased's criminal record. It was sufficient that there have been a factual issue as to who was the
  aggressor.....

We realize that it resides within the sound discretion of the trial court to determine whether there exists
sufficient good reason for evidence of the deceased's criminal record to be introduced or argued during trial.
We are mindful of the potential dangers such evidence presents…

In this case, it is unclear from the record whether Kekona, at the time he shot at Ah Loo's van, was aware
of any specific acts of abuse by Ah Loo against Antonio that occurred prior to December 14, 2005. In any
event, however, there was much conflicting evidence produced at trial as to whether Ah Loo was the first
aggressor who had used his van as a deadly weapon to ram Antonio's car into ongoing traffic and endanger
the lives of the occupants of Antonio's car. Ah Loo's prior abuse was circumstantial evidence of the
likelihood that Ah Loo was the first aggressor in the events that led up to the shooting incident in the
Waimalu Shopping Plaza. Therefore, it was an abuse of discretion for the circuit court to preclude Kekona
from introducing evidence of Ah Loo's prior abuses of Antonio.

During the proceedings below, the State argued that its motion in limine should be granted because Kekona
had failed to comply with HRE Rule 404(b) and provide reasonable notice in advance of trial of the date,
location, and general nature of the evidence of Ah Loo's prior abuse of Antonio that Kekona intended to
introduce into evidence at trial. In State v. Pond, 117 Hawai‗i 336, 350, 181 P.3d 415, 429 (App.2007),
vacated on other grounds by State v. Pond, 118 Hawai‗i 452, 193 P.3d 368 (2008), this court observed that
the purpose of the notice required by HRE Rule 404(b)―is to reduce surprise and promote early resolution
of admissibility questions.‖ We also adopted the case-by-case approach for assessing the reasonableness
of the notice required by HRE.

In this case, the State's motion in limine sought to resolve, prior to trial, the admissibility of Ah Loo's alleged
prior abuse of Antonio. The circuit court did not rely on Kekona's failure to comply with HRE Rule 404(b) as
a basis for granting the State's motion in limine. Moreover, it appears that the State, by seeking to preclude
such evidence from being offered at trial, had notice that Kekona intended to support his defense with
evidence of Ah Loo's prior abuse of Antonio…In light of the foregoing discussion, we vacate the judgment
and remand for a new trial.


Professor John Barkai, U.H. Law School - Evidence                                            Page - 82
STATE v. CASTRO 69 Haw. 633,                          756 P.2d 1033 (1988)             HRE 403, 404(b)
       Michael Castro was convicted of attempted murder and assault in the first degree following a jury trial
in the Circuit Court of the First Circuit. He asserts on appeal that the judgment of conviction must be vacated
because of a score of errors committed by the trial court. Reviewing the record, we conclude the court erred
when it (1) admitted evidence of the defendant's aggressive and violent character ... Thus, we set aside the
judgment of conviction and remand the case for a new trial on the charge of attempted murder.
       The scene of the violent episode leading to the prosecution of Michael Castro was the Gardenia
Garden where his estranged girlfriend, Charlotte Harkin, was employed as a dancer. On July 21, 1986, after
drinking beer at several other bars, the defendant and his brother Kalen went to the Gardenia Garden to see
her. It was after midnight when they entered the nightclub. Castro spotted Ms. Harkin sitting in a booth.
When she saw him, she went to apprise her employer of her fear of him. When Ms. Harkin returned to the
booth, Castro attempted to engage her in conversation.
       Meanwhile, the employer came to the booth and asked Castro to step outside, where she told him not
to bother Charlotte Harkin. Castro paid no heed to the advice and went back into the nightclub, joining his
brother at the bar. Ms. Harkin was then at the jukebox, placing coins in it in preparation of her performance.
 Castro suddenly leaped from his seat, grabbed the woman by her hair, and yelled, "let's go." He stabbed
her repeatedly in the back and neck with a knife as he dragged her toward the door. He testified at trial that
he knew what was happening but just "couldn't stop." The armed attack ceased as suddenly as it began.
The assailant then released the victim and fled. Several medical technicians who fortuitously were present
came to the victim's aid. She had suffered a life-threatening neck wound and twelve back wounds from the
attack. Meanwhile, other patrons of the nightclub and the police gave chase to the assailant. And he was
apprehended shortly thereafter.
       The Complaint filed by the Prosecuting Attorney charged Michael Castro with attempted murder ... and
assault in the first degree.... The defendant elected to have a trial by jury. The State served notice before
trial of its intention to offer testimony describing the defendant's prior acts of violence. It claimed the
evidence was admissible under Rule 404(b) of the Hawaii Rules of Evidence (Haw.R.Evid.) since it was
probative of the defendant's state of mind at the time the offenses were committed.

     The defendant countered with his motion in limine to exclude the testimony, arguing it was being
offered "to prove the character of [the defendant] in order to show that he acted in conformity therewith [on
the occasion in question.]" See supra note 5. The trial court, however, ruled the acts of violence constituted
relevant evidence and its probative value outweighed any prejudicial effect it could have. Hence, when Ms.
Harkin testified at trial she recounted prior incidents where Michael Castro slapped her, punched her,
threatened her while wielding a knife, held a gun to her head, raped her, and threatened her on the
telephone, as well as the events that occurred on July 21, 1986 at the Gardenia Garden.
     Before the complaining witness took the stand, however, the State moved to have the defendant
shackled. The witness, it claimed, was fearful that Castro would harm her if he could freely move about the
courtroom. The trial court granted the request over the strenuous objection of the defendant, finding there
was cause to restrain him. The court noted the assault weapon had been placed in evidence and could
possibly be reached by the defendant, he had a history of violence, he was versed in martial arts, and he was
in an emotional state, as evidenced by his sobbing while prospective jurors were being examined.
     The cross-examination of the complaining witness consisted largely of questions related to her feelings
about Michael Castro before and after the stabbing and her current relationships and sexual preferences.
In the prosecutor's view the examination was damaging enough to warrant an effort to rehabilitate her
through expert testimony. The State therefore called Dr. Hall, a psychologist, to the stand, and he was
permitted to give an opinion on her credibility when he evaluated her after the attack. The trial court ruled
such evidence was admissible under the test for the reception of expert testimony on witness credibility
established in State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982).




Professor John Barkai, U.H. Law School - Evidence                                         Page - 83
     The State also relied on Dr. Hall's testimony to refute a defense mounted by the defendant, that he was
"under the influence of extreme mental or emotional disturbance for which there [was] a reasonable
explanation[ ]" when he committed the armed attack. See HRS s 707-702(2). There was an outburst from
Castro while the psychologist was giving his opinion on the defendant's state of mind at the time of the attack.
[FN6] And Castro manifested hostility toward the witness on another occasion. [FN7] As a consequence,
the defendant was shackled for a substantial portion of the trial and excluded from the courtroom during
certain phases of the proceedings.

     FN6. The defendant pounded the table and screamed at Dr. Hall. The relevant portion of the transcript
of proceedings reads as follows: Deputy Prosecutor: Now Dr. Hall ... If I might have a moment, Your Honor.
The Defendant: Talk about humiliate. Deputy Prosecutor: Excuse me, Your Honor, may we take a recess.
The Defendant: I'm tired of this bullshit, man. Humiliate, I fucking hurt her, man. I didn't fucking want to
humiliate her. And the fucking first blow was to her neck you son of a bitch.

      FN7. In one incident, after Dr. Hall completed his testimony for the day and was leaving the witness
stand, Castro allegedly threatened him. Hall said Castro leaned towards him, glared and mumbled
something. Although Castro's actual words could not be made out except for "doctor," the court later
deemed these actions a threat to the witness.
      After the close of evidence, the defendant sought to preclude the possibility of being convicted of two
offenses by objecting to the proposed instruction rendering this possible. The State, however, maintained
there was sufficient evidence to sustain convictions on both. It claimed the stab wounds to the victim's back
constituted evidence of the first degree assault and the life- threatening neck wound was evidence of the
attempt to murder. The acts causing the back wounds, it argued, were separated in time from the act
causing the neck wound. The trial court overruled the defendant's objection, and the jury subsequently
returned verdicts of guilty on both attempted murder in the first degree and assault in the first degree.
                                                          II.
      A dispositive issue on appeal is whether the trial court abused its discretion in allowing the jury to hear
evidence of the defendant's prior acts of violence and aggression directed at the complaining witness. We
begin our analysis of the issue by scrutinizing the evidentiary rule governing the admission of evidence of
"other crimes, wrongs, or acts," Haw.R.Evid. 404(b).
                                                        ***
      The framers of the rule recognized that "[c]haracter evidence is of slight probative value and may be
very prejudicial." Haw.R.Evid. 404 Commentary (quoting Federal Rules of Evidence (Fed.R.Evid.) 404,
Advisory Committee's Note). For "[i]t tends to distract the trier of fact from the main question of what actually
happened on the particular occasion." Id. And "[i]t ... permits the trier ... to reward the good man and to
punish the bad man because of their respective characters despite what the evidence in the case shows
actually happened." Id. Haw.R.Evid. 404(b) thus reiterates the common law rule "that the prosecution may
not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some
purpose other than to suggest that because the defendant is a person of criminal character, it is more
probable that he committed the crime for which he is on trial." ...
      Yet even when the evidence of other crimes, wrongs or acts tends to establish a fact of consequence
to the determination of the case, the trial court is still obliged to exclude the evidence "if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Haw.R.Evid. 403. For "the use of the word 'may' in [Haw.R.Evid.] 404(b) was 'not intended to confer any
arbitrary discretion on the trial judge' but was rather designed to trigger the Rule 403 balance." Haw.R.Evid.
404(b) Commentary (quoting the House Judiciary Committee Report accompanying the Federal Rules of
Evidence).
                                                          B.
      Evidence of Michael Castro's earlier acts of violence and aggression was admitted on grounds that it
was probative of several matters of consequence in the determination of the case and the probative value
substantially outweighed the danger of unfair prejudice. The decision to allow the jury to hear Ms. Harkin's
account of Castro's prior conduct, in our view, amounted to an abuse of discretion.

Professor John Barkai, U.H. Law School - Evidence                                           Page - 84
      As we observed, when evidence of other crimes, wrongs, and acts is offered by the prosecution, the
problem for the trial court is one "of classifying and then balancing[, if necessary]." E.W. Cleary, supra. If its
purpose is only "to show some propensity to commit the crime at trial, there is no room for ad hoc balancing.
 The evidence is then unequivocally inadmissible [.]" Id. If it is probative of any other fact of consequence
in the determination of the case, the court must then consider whether the prejudicial impact of the evidence
would be substantially greater than its probative worth. And, [i]n deciding whether the danger of unfair
prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be
considered, including the strength of the evidence as to the commission of the other crime, the similarities
between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the
efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to
overmastering hostility. Id. (footnote omitted).
      Here, the trial court stated the other crimes evidence was being admitted because it was relevant in the
establishment of intent, preparation, plan, knowledge, and modus operandi and the probative value was
much greater than the prejudicial impact. Arguably, the evidence of prior crimes, wrongs, and acts helped
to prove the defendant's conduct was intentional. Yet, the introduction of such evidence can hardly be
justified on the basis of need or the inefficacy of alternative proof. For there was much more from which an
inference of intentional conduct could be drawn in the evidence of the offense for which the defendant was
being tried. There was even less justification to deem the evidence in question relevant on grounds that it
showed preparation, plan, knowledge, and modus operandi.
      "Preparation" seldom is an ultimate issue in a criminal case. 22 Wright & Graham, Federal Practice
and Procedure: Evidence s 5243. It often serves to establish identity. "For example, evidence that a car
was stolen by the defendant may serve to identify him as the perpetrator of a subsequent robbery in which
the car was used for escape." Id. (footnote omitted). But the identity of the assailant was not disputed here,
and we discern no other basis to consider the evidence admissible under the rubric of "preparation."
      "With the possible exception of prosecutions for conspiracy, plan or design is not an element of the
offense; therefore, evidence that shows a plan must be relevant to some ultimate issue in the case." Wright
& Graham, supra, s 5244 (footnotes omitted). Like evidence of preparation, proof of the existence of a plan
often serves "to identify the perpetrators of the crime." Id. (footnote omitted). But we fail to see how such
proof was of consequence to the determination of the case at hand.
      The use of other crimes evidence is also permissible to show the act in question was performed with
guilty knowledge. E.W. Cleary, supra, s 190. Michael Castro, however, did not claim the crime for which he
was being tried was committed without such knowledge. Thus, the trial court's ruling that the evidence could
be admitted because it established knowledge does not pass muster too.
      Where "the characteristics and methodology of the prior crime or act [are] so strikingly similar to those
of the crime or act being litigated as to support the inference that both were the handiwork of the very same
person [,]" evidence of the prior crime or act may be admitted. Haw.R.Evid. 404 Commentary. Still, the
identity of the perpetrator of the crimes was not denied, and the admission of the other crimes evidence as
proof of modus operandi cannot be justified here.
      We therefore would have to say the incremental probative value of the evidence in question was not
great. The trial court's allowance on the prosecution's case-in-chief of evidence likely "to weigh too much
with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair
opportunity to defend against a particular charge[,]" Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct.
213, 218, 93 L.Ed. 168 (1948), was an abuse of discretion. On balance, the potential for unfair prejudice
being generated by the evidence was far greater than its value in establishing facts of consequence to the
determination of the case. Haw.R.Evid. 403 and 404(b).
                                                        ***
      The judgment of conviction is vacated and the case is remanded for a new trial on the charge of
attempted murder.




Professor John Barkai, U.H. Law School - Evidence                                           Page - 85
State v. Steger 114 Hawai'i 162, 158 P.3d 280 (2006)
                                                                                                     R 404(b) factors
      Defendant-Appellant Kurtis Lee Steger (Steger)...was found guilty as charged of Promoting a Dangerous Drug in the
First Degree (Count 1); Prohibited Acts Relating to Drug Paraphernalia, (Counts 2, 4, 5, 6, 8); and Promoting a Dangerous
Drug in the Third Degree (PDD3) (Count 7). The jury also found Steger guilty of the included offense of Attempted
Promoting a Dangerous Drug in the Second Degree (Attempted PDD2)... Steger was sentenced to twenty years'
imprisonment on Count 1, with a mandatory minimum term of five years; ten years' imprisonment on Count 3; five years'
imprisonment on each of Counts 2, 4, 5, 6, 7, and 8, with a mandatory minimum term of 20 months on Count 7; all terms
to run concurrently.
...On appeal, Steger argues that the circuit court erred in:...2) permitting a witness to testify about Steger's previous
drug-related activities...We affirm.
                                                     BACKGROUND
      In April of 2002, Steger shared a two-bedroom apartment in Kihei, Maui with John James Caleb Koch (Koch) and
Bobbie Joe Cruz (Cruz). The apartment was rented in Steger's name only. Steger, Koch, and Cruz had previously worked
together in Guam for Wallace Theaters...Steger slept in the living room while Koch and Cruz each had their own bedroom.

      On April 12, 2002, shortly after 6:00 a.m., the police executed a search warrant on Steger's apartment. The warrant
was obtained based on information that Koch was selling drugs from the apartment. Only Steger and Cruz were home
when the warrant was executed. At trial, Officer Esperanza testified that in a black carrying case that was on futon bedding
on the living room floor, he found approximately four ounces of crystal methamphetamine in four plastic The black carrying
case or bag also contained identification for Steger and almost $3,000 in cash...

      The futon bedding on the living room floor lay next to a kitchen counter which separated the living room from the
kitchen. On the kitchen counter, Officer Esperanza found one hundred Ecstasy tablets in a plastic bag, eleven vials of
ketamine, a gram scale, seventeen empty plastic packets, and Steger's cellular telephone. Officer Esperanza also
recovered: 1) two glass smoking pipes along with Steger's laptop computer and wallet from the bathroom; 2) marijuana,
a variety of drug paraphernalia, a Glock pistol, and magazines containing ammunition from Koch's bedroom; and 3) a
police scanner, which could be heard broadcasting police transmissions, from a stand in the hallway. Another glass
smoking pipe containing methamphetamine residue was recovered from Steger's pants pocket during the search incident
to his arrest. No identifiable fingerprints were lifted from any of the items seized.
          Cruz testified that while she lived at the Kihei apartment, she saw Steger and Koch package crystal
methamphetamine or “ ice” into little plastic packets on almost a daily basis. Cruz saw Koch sell the ice out of the
apartment and Steger sell it out of his pickup truck. Cruz stated that the four-ounce quantity of ice seized by the police was
“pretty much present all the time” in the apartment. Cruz had smoked ice given to her by Steger and Koch. She identified
the gram scale seized by the police as the one used by Steger and Koch to weigh ice and the empty plastic packets that
had also been seized as resembling the ones used by Steger and Koch to package ice. Cruz observed paraphernalia for
using crystal methamphetamine, such as glass pipes and bongs, in the apartment everyday and saw Steger using a glass
pipe once or twice a week.

      According to Cruz, Steger obtained crystal methamphetamine and sometimes Ecstasy through packages sent in the
mail, which Steger picked up at the post office. Cruz recalled one occasion on which she accompanied Steger and saw
him open a package he had retrieved from the post office. The package contained little baggies of ice. After opening the
package, Steger immediately made a phone call and reported that he had received the package.

      ...Cruz and Koch worked the night shift and finished at about two or three in the morning on April 12, 2002. Koch went
his own way and Cruz was dropped off at the apartment at about four or five in the morning. Upon entering the apartment,
Cruz greeted Steger who pointed out the Ecstasy tablets and ketamine vials on the kitchen counter. Before that morning,
Cruz had observed Steger in possession of Ecstasy and ketamine on one or two other occasions. Cruz changed her
clothes and went to bed. A short time later, Steger rushed into Cruz's bedroom and yelled that “[t]he cops” were there.
Cruz left her bedroom to open the door, but the police forced entry before she could do so. Cruz was arrested along with
Steger. On cross-examination, Cruz acknowledged that Koch was the father of her fifteen-month-old son.



Professor John Barkai, U.H. Law School - Evidence                                                     Page - 86
      Steger testified in his own defense at trial. He admitted that he started to use ice on Guam and that he used ice
“ many times” in his Kihei apartment after moving to Maui. Prior to the police search, Steger had used ice in front of and
with Koch and Cruz and had also used Ecstasy.

       According to Steger, he learned that Koch was dealing drugs in February 2002. Steger decided to transfer to Kona
and, in March 2002, informed his landlord, Koch, and Cruz that he would be leaving. Steger was supposed to start his new
job as general manager of the Makalapua Cinemas in Kona on the evening of April 11, 2002. Steger testified that he went
to the airport on that evening and passed through security, where his carry-on bags were searched; but he missed the last
flight to Kona. He returned to the Kihei apartment a little after 1:00 a.m. on April 12, 2002. Steger noticed drugs on the
kitchen counter. He had never seen those particular drugs before, although he recognized what type of drugs they were.

      Steger testified that Cruz arrived home at about 5:00 a.m. and went to bed. Later, Steger heard knocking at the door
and looked through the peephole. He did not open the door but went to Cruz's bedroom and told her “[t]he cops are here.”
Cruz ran out of the bedroom. Steger stayed in Cruz's bedroom and heard the police enter.

        Steger was asked about the black bag that Officer Esperanza testified had contained approximately four ounces of
crystal methamphetamine in four plastic packets, along with Steger's identification and about $3,000 in cash. Steger
testified that he had placed his identification and cash in the bag prior to taking the bag to the airport. Steger denied,
however, that four packets of crystal methamphetamine had been in the bag before the police arrived. Steger testified that
he did not have any intent to take the crystal methamphetamine to Kona or to distribute or possess the drugs found in his
apartment. He admitted to owning the methamphetamine pipe that was taken from his pocket during the search incident
to his arrest.
                                                               ***
... II. A.
        At trial, Cruz was permitted to testify about her observation of Steger's drug-related activities during the two-month
period preceding the execution of the search warrant, when she lived with Steger in the Kihei apartment. Among other
things, Cruz testified that during this time period, she saw Steger package crystal methamphetamine into plastic packets
and sell crystal methamphetamine out of his truck. She also saw quantities of crystal methamphetamine in the apartment
that were consistent with the approximately four ounces seized by the police. Cruz testified that Steger obtained crystal
methamphetamine and Ecstasy through packages sent in the mail. She recounted one incident in which Steger, in her
presence, opened a package he had just picked up from the post office. The package contained baggies of crystal
methamphetamine. Cruz further testified that Steger made bongs, used crystal methamphetamine and Ecstasy in her
presence, and gave her illegal drugs to use.
                                                               B.
        On appeal, Steger contends that the circuit court erred in permitting Cruz's testimony about his drug-related
                                                                                      1
activities on Maui because this testimony was irrelevant and unduly prejudicial. We disagree...
        Under HRE Rule 404(b), “other bad act” evidence is admissible when: 1) it is relevant to any fact of consequence
other than the defendant's propensity to commit the crime charged; and 2) its probative value is not substantially
outweighed by the danger of unfair prejudice. State v. Renon, 73 Haw. 23, 31-32, 828 P.2d 1266, 1270 (1992). A trial
court's determination that evidence is relevant turns on the application of HRE Rule 401 (1993) and is reviewed under
the right/wrong standard...The trial court's decision in balancing probative value against unfair prejudice involves the
application of HRE Rule 403 (1993) and is reviewed for abuse of discretion....

     In ruling on whether to admit evidence under HRE Rule 404(b), the trial court must consider a variety of factors.
State v. Robinson, 79 Hawaii 468, 471, 903 P.2d 1289, 1292 (1995). These include:




       1
         . The circuit court granted the portion of Steger's motion in limine which precluded Bobbie Joe Cruz (Cruz) from
testifying about Steger's drug activities on Guam. Steger had a 2003 Guam conviction for drug importation. He was
extradited from Guam, where he was incarcerated, to stand trial in Hawaii.



Professor John Barkai, U.H. Law School - Evidence                                                     Page - 87
     the strength of the evidence as to the commission of the other bad acts, the similarities between the [other] bad
     acts [and the charged crime], the time that has elapsed between the [other] bad acts [and the charged crime], the
     need for the evidence, the efficacy of alternate proof, and the degree to which the evidence will probably rouse the
     jury to overmastering hostility....

                                                              C.
       Cruz's testimony regarding Steger's drug-related activities on Maui was directly relevant to proving Steger's
knowledge and intent with respect to the drugs found in the apartment. The State was required to prove that Steger
knowingly possessed at least one ounce of methamphetamine to establish the PDDI offense charged in Count 1. It was
required to prove that Steger intended to distribute at least 25 tablets of Ecstasy to establish the Attempted PDDI offense
charged in Count 3. Cruz's testimony that during the two months preceding the search, Steger was actively involved in
acquiring, packaging, and selling methamphetamine and had possessed Ecstasy was obviously probative of whether
Steger had the requisite criminal intent. United States v. Foster, 344 F.3d 799, 801-02 (8th Cir.2003) (holding that
evidence of the defendant's prior drug dealing was relevant and admissible to prove his knowledge of and intent to
distribute drugs); see State v. Kealoha, 95 Hawaii 365, 380, 22 P.3d 1012, 1027 (App.2000) (concluding that evidence of
the defendant's prior sale of methamphetamine was relevant and admissible to show her motive to manufacture
methamphetamine and her intent to do so); Cordeiro, 99 Hawaii at 416, 56 P.3d at 718 (concluding that evidence that the
defendant had previously trafficked in one type of drug may be relevant to whether he was involved in trafficking in other
drugs). Cruz's testimony went to a critical aspect of the State's required proof.

      The probative value of Steger's contemporaneous drug-related activities was heightened by Steger's defense, which
basically was that he was merely present in the apartment and did not knowingly possess the approximately four ounces
of crystal methamphetamine or intend to distribute the Ecstacy tablets recovered by the police. Steger attempted to place
the blame for the methamphetamine and the Ecstasy found in the apartment solely on his co-defendant, Koch. Evidence
of Steger's recent drug activities served to refute his defense that he was merely present in the apartment and had no
responsibility for the methamphetamine and Ecstasy that were found there. See State v. Austin, 70 Haw. 300, 307, 769
P.2d 1098, 1102 (1989) (holding that evidence of the defendant's prior drug dealing was admissible under HRE Rule
404(b) where the defendant denied any involvement in the cocaine trafficking at issue); Foster, 344 F.3d at 801-02
(concluding that the defendant's defense, which closely resembled a “ mere presence” defense, placed his state of mind
into question and supported the admission of his prior drug trafficking conviction to prove his knowledge and intent
regarding the charged drug offense).
      Other factors support the circuit court's admission of Cruz's testimony under HRE Rule 404(b). Cruz had intimate and
direct knowledge of Steger's drug activities on Maui. Steger's other drug activities were very similar and close in time to the
charged drug offenses. There was a substantial need for Cruz's testimony regarding Steger's drug activities because the
other evidence of Steger's knowledge and intent was circumstantial and because Steger had denied any criminal
knowledge or intent.
      Finally, the evidence of Steger's other drug activities was not likely to “rouse the jury to overmastering hostility.”
State v. Robinson, 79 Hawaii at 471, 903 P.2d at 1292. Indeed, Steger himself injected his prior involvement with drugs
into the trial by characterizing himself as a heavy methamphetamine user. Steger employed this strategy to explain how
he could be present in an apartment filled with drugs and yet not be responsible for the distribution quantities of crystal
methamphetamine and Ecstasy found in the apartment. Steger's trial strategy significantly diminished the risk that any
unfair prejudice resulted from Cruz's testimony regarding Steger's other drug activities.
      We conclude that the probative value of Cruz's testimony regarding Steger's other drug activities was not
substantially outweighed by the danger of unfair prejudice. The circuit court did not abuse its discretion in permitting
Cruz's testimony...
                                                              ***
                                                       CONCLUSION

     The circuit court's ... Judgment is affirmed.




Professor John Barkai, U.H. Law School - Evidence                                                     Page - 88
STATE v. POND, 118 Hawai'i 452, 193 P.3d 368 (2008)
                                                          HRE 404(b) – Notice Requirement – by Defendant

Background: Defendant was convicted of abuse of family or household member and interference with
reporting an emergency or crime. Defendant appealed. The ICA affirmed.

Holdings: The Supreme Court, Nakayama, J., held that:
(1) notice requirement in rule governing admissibility of evidence of other crimes, wrongs, or acts did not per
se violate defendant's constitutional right to cross-examine witnesses; [404(b)]
(2) trial court did not abuse its discretion in declining to excuse pretrial notice on good cause shown of
evidence that complainant had previously ―smacked‖ defendant;
(3) defendant was not required to give reasonable notice of his intent to cross-examine complainant about
her marijuana use on night defendant allegedly attacked her as prerequisite to cross-examining her on this
issue;
(4) trial court's preclusion of defendant's cross-examination of complainant as to her marijuana use on night
defendant allegedly attacked her was reversible error; and …
Vacated and remanded.

Duffy and Acoba, JJ., concurred in part, and dissented in part, with opinion.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ., ACOBA and DUFFY, JJ., concurring and dissenting.

Opinion of the Court by NAKAYAMA, J.

The complaining witness, Miae Russell (―Ms. Russell‖) [and defendant Pond lived together] Ms. Russell and
Pond presented conflicting testimony regarding an incident that occurred on December 12, 2005 [each
claiming the other was the aggressor].

1. Pond's motion for HRE Rule 404(b) evidence and continuance denied

Minutes before Pond's jury trial was scheduled to begin, Pond orally moved for a continuance of trial in order
to submit HRE Rule 404(b) evidence that Ms. Russell previously assaulted Pond. Pond's counsel explained
that he only pinpointed the date of the alleged attack that morning and could not have earlier filed a notice
of intent to introduce such evidence. He also argued that the evidence ―goes to the heart of our
self-defense.‖ …

2. Evidence that Ms. Russell was smoking marijuana on December 12, 2005

During Ms. Russell's cross-examination, defense counsel asked whether she was smoking marijuana when
Pond came home on December 12, 2005. The prosecution objected and the parties approached the bench.
Pond's counsel argued that this evidence is ―impeachable‖ and ―goes to her credibility.‖ However, the court
ruled ―[i]t's a prior bad act‖ because the question asks whether ―she committed a crime that evening before
he came home,‖ and thus, required that Pond's counsel give the prosecution HRE Rule 404(b) reasonable
notice. The court thereafter struck the last question and ordered the jury to disregard it….

Having concluded that HRE Rule 404(b) is not per se unconstitutional,…

The record indicates that the circuit court did not abuse its discretion by denying Pond's request to introduce
Ms. Russell's prior acts under HRE Rule 404(b). On the first day of trial, defense counsel explained to the
court that he was previously aware of the ―[HRE Rule] 404(b) event,‖ but did not give the prosecution notice
because he ―wasn't able to pinpoint the day until [that] morning.‖ This argument was disingenuous at best.


Professor John Barkai, U.H. Law School - Evidence                                         Page - 89
When Pond's counsel attempted to introduce the alleged HRE Rule 404(b) evidence at trial, both Pond and
his counsel merely approximated the date of the event.


… that defense counsel could have given the prosecution general notice prior to trial to eliminate undue
surprise and allow the prosecution the opportunity to prepare for this matter… Accordingly, we conclude that
the circuit court did not abuse its discretion by declining to excuse pretrial notice on good cause shown and
precluding Pond's HRE Rule 404(b) evidence.

B. The Circuit Court Committed Reversible Error By Precluding Pond From Cross-Examining Ms.
Russell About Whether She Smoked Marijuana on December 12, 2005.

Pond next argues that the ICA gravely erred by concluding that he was required to provide reasonable notice
of his intent to cross-examine Ms. Russell about using marijuana on December 12, 2005 to attack her
perception and recollection. It is well recognized that a defendant may cross-examine the witness ―as to her
drug use and addiction at or near the time of the incident to the extent that it affected her perception or
recollection of the alleged event.‖…

Here, contrary to the conclusion of the ICA and the ruling of the circuit court, Pond was not required to
provide the prosecution HRE Rule 404(b) ―reasonable notice‖ prior to cross-examining Ms. Russell about
whether she used marijuana on December 12, 2005 because he intended to show the jury that her
perception and testimony about the incident were not credible….The circuit court committed reversible error
in limiting the cross-examination of Ms. Russell as to her marijuana use. Pond was deprived of showing that
Ms. Russell's perception of the events was altered through her alleged use of marijuana…

Based upon the foregoing analysis, we vacate Pond's conviction of abuse of family or household member
and Interference, and remand for further proceedings consistent with this opinion.

Concurring and Dissenting Opinion by ACOBA, J. [this is a very long dissent]
I concur except, respectfully, I believe that the Intermediate Court of Appeals (ICA) did gravely err (1) in
affirming the decision of the Second Circuit Family Court (the court) to exclude, based on a purported
violation of the notice provision in Hawai‗i Rules of Evidence (HRE) Rule 404(b); (2) in affirming the court's
decision to deny Petitioner's request for a continuance…

The court and the ICA did not consider State v. Peseti, 101 Hawai‗i 172, 65 P.3d 119 (2003), [JB: which is
a case we will consider later in the ―privilege‖ section] which, as discussed below, requires that a defendant's
constitutional rights be weighed against the interests in enforcing evidentiary rules that preclude the
admission of certain evidence….

Peseti stands for the proposition that the enforcement of statutes precluding admission of evidence by a
defendant requires that the defendant's constitutional rights be weighed against the interests in enforcing
the statute. …

Concurring and Dissenting Opinion by DUFFY, J.
I concur with the majority opinion with one exception: I believe the Intermediate Court of Appeals (ICA) erred
in its finding that the circuit court's jury instruction on self-defense was proper. In my view, the jury instruction
given was improper and prejudicial for the reasons stated by Justice Acoba in his Concurring and Dissenting
Opinion, whose analysis I agree with on this point.




Professor John Barkai, U.H. Law School - Evidence                                             Page - 90
State v. Fetelee, 117 Hawai'i 53, 175 P.3d 709 (2008)                                             Res Gestae
Supreme Court of Hawaii.

[Defendant was convicted ... of attempted murder in the second degree, attempted assault in the second degree, and theft in the
fourth degree... The Intermediate Court of Appeals affirmed, and defendant filed an application for a writ of certiorari.] Conviction
vacated, and case remanded.

Opinion of the Court by MOON, C.J.
... Briefly stated, during the early morning hours of June 8, 2003, Fetelee became involved in three incidents that occurred in and
around his apartment building located near the Waimalu Zippy's restaurant in ‗Aiea, Hawai‗i. The first incident in the chain of events
occurred in one of the apartments in the building, but did not result in any charges against Fetelee [hereinafter, the apartment incident].
The second incident occurred in the parking lot of Fetelee's apartment building where Fetelee came upon a woman from whom he
stole ten dollars and was charged with theft. The third incident involved Fetelee's confrontation of two Micronesian men who were
walking down the street fronting Fetelee's apartment building. As a result, Fetelee was charged with attempted murder for repeatedly
stabbing one of the males and with assault for punching and kicking unconscious the other male. One of the focal points of this case
involves the admission of the events that occurred during the apartment incident as part of the res gestae FN2 of the charged
offenses.

          FN2. The term res gestae is defined as ―[t]he events at issue, or other events contemporaneous with them.‖ Black's Law
          Dictionary 1335 (8th ed.2004).

In his application, Fetelee essentially contends that the ICA committed grave error in acknowledging the common law res gestae
doctrine as an exception as to Hawai‗i Rules of Evidence (HRE) Rule 404(b) (Supp.2006) (governing evidence of other crimes, wrongs,
or acts), quoted infra, to allow otherwise inadmissible evidence, i.e., the apartment incident, into the record. Specifically, Fetelee
argues that the ICA erred in holding that: (1) the apartment incident was part of the res gestae of the charged offenses; (2) the
apartment incident was admissible as a res gestae exception to HRE Rule 404(b); (3) the trial court did not abuse its discretion in
allowing respondent/plaintiff-appellee State of Hawai‗i (the prosecution) to reopen its case-in-chief to adduce evidence of the
apartment incident; ...

As discussed more fully infra, we adopt the view that the use of ―res gestae ‖ as an independent basis for the admission of evidence
should be abandoned in the wake of Hawaii's well-developed and long-standing rules of evidence. In light of our pronouncement today,
we are compelled to vacate the ICA's May 17, 2007 judgment on appeal and the trial court's August 3, 2005 judgment of conviction
and sentence, and remand the case to the trial court for a new trial consistent with this opinion.

                                                           I. BACKGROUND

... the issues raised by Fetelee in his application center around the res gestae evidence and the reopening of the prosecution's
case-in-chief, ...
[the court describes the incidents]
            ... Fetelee came into her apartment, picked up a fan, and threw it straight up at the ceiling. Fetelee's throwing of the fan
            caused the fan to become unplugged from the wall, which, in turn, caused the lights in the apartment to go out. Lopez
            testified that Fetelee then ―went after‖ Freeman and, even though it was ―kind of dark,‖ it looked like Fetelee punched
            Freeman. ... Fetelee returned later, apologized, and then left.

After leaving the apartment building, Fetelee came upon Kuulei Lincoln in the parking lot area of the apartment building.

          ... She stated that [,] from his body motions and the way he called to her, Fetelee ―looked angry.‖ Fetelee asked Lincoln if
          she had a cigarette and any money. Lincoln answered ―no‖ as to the money. As Lincoln pulled out her cigarette pack, a ten
          dollar bill came out, and Fetelee grabbed the bill. Lincoln testified that she did not ask for the money back because she did
          not want to create a hassle.

           Lincoln testified that[,] as she and Fetelee were talking, two Micronesian boys [ (later identified as Michael Hartman and
          his cousin, Kenter Alik) ] walked by them. Lincoln testified that Fetelee was still angry and began yelling at the boys, ―What,
          you think you guys tough?‖ The two boys did not say anything-they just shook their heads ―no.‖ Fetelee then hit [Hartman]
          twice in the face, and [Hartman] fell to the ground. [Alik] was trying to help [Hartman] out of the middle of the road when
          Fetelee hit [Alik] with his hand. Fetelee ran upstairs to his apartment and returned with a fanny pack. Fetelee pulled a knife
          from his fanny pack and stabbed [Alik]. Fetelee proceeded to rifle through the backpack of one of the Micronesians. Lincoln
          testified that at no time did she observe the two Micronesian boys say or do anything to make Fetelee angry.

[Fetelee testified in his own defense and explained essentially that he was not involved in any criminal conduct during all the
incidents.]

1. Motions in Limine


Professor John Barkai, U.H. Law School - Evidence                                                               Page - 91
Prior to trial, both Fetelee and the prosecution filed motions in limine.

          Fetelee moved the [trial] court to exclude from use at trial, inter alia, testimonial or documentary evidence relating to (1) any
          other ―bad acts‖ involving Fetelee and (2) any unfavorable evidence against Fetelee that might not technically be
          considered ―bad acts‖ under HRE [Rule] 404 [ (b) ], but that should be excluded as irrelevant under HRE [Rule] 402 or as
          unfairly prejudicial under HRE [Rule] 403. The [prosecution] sought, inter alia, a ruling from the [trial] court

           ... admitting evidence that Fetelee returned to his residence and became enraged when he found a vehicle blocking the
          driveway. Fetelee forcibly entered the apartment of ... Lopez and confronted ... Freeman regarding the parked vehicle;
          Fetelee punched Freeman and left the apartment. While Fetelee was still angry he confronted ... Lincoln, demanded money
          from her and removed a ten dollar bill from her pocket without permission.... Fetelee's attention was drawn to ... Hartman
          and ... Alik[.] Evidence regarding Fetelee's conduct toward Freeman is relevant to prove state of mind, motive, and intent.
          HRE Rules 401, 402, 403.

On April 19, 2005, the trial court held a hearing on the motions [and took testimony]...

2. Trial Proceedings

A five-day jury trial commenced ... the prosecution rested without the trial court having ruled on the motions in limine. Defense counsel
moved for judgment of acquittal, which the trial court denied.... [Before the defense presented its case] the prosecution informed the
trial court that it had located Freeman and requested that the trial proceedings be suspended in order to continue the hearing on the
motions in limine.
....
Outside the presence of the jury, the trial court [took testimony and] ruled:

          It's the judgment of the court that there is sufficient evidence for a reasonable juror to conclude that within a time period of
          as short as three minutes before Mr. Fetelee's contact with Ms. Lincoln, he was angry and intoxicated and that he was angry
          and intoxicated while engaging in assaultive behavior at Ms. Lopez's apartment. Accordingly, [the apartment incident] was
          sufficiently coincident with the alleged offenses as to constitute the res gestae of the alleged offenses. Though the incident
          does not constitute a prior bad act, it is noted that its relevance does include an explanation of [Fetelee]'s motive, that is, to
          manifest the anger he continued to experience as a result of the incident in Ms. Lopez's apartment. With respect to [HRE]
          Rule 403, while the evidence is admittedly prejudicial, it is of significant probative value to core matters of proof required by
          the prosecution. For these reasons, [Fetelee]'s motion in limine to exclude evidence of the defendant's conduct in Ms.
          Lopez's apartment is denied.

[At the Hawaii Supreme Court] Fetelee argues that the ICA incorrectly determined that: (1) the apartment incident constituted res
gestae evidence and was, therefore, admissible as an exception to HRE Rule 404(b), which rule generally prohibits the admission of
evidence of other crimes, wrongs, or acts; ... Fetelee's first contention is dispositive of his application.

1. Res Gestae Doctrine and Hawai‗i Case Law

Historically, i.e., prior to the codification of the rules of evidence, FN9 res gestae was understood as an evidentiary principle, which
was employed as one of the exceptions to the hearsay rule:

          FN9. The Hawai‗i Rules of Evidence were codified in 1981...

           The term res gestae seems to have come into common usage in discussions of admissibility of statements accompanying
          material acts or situations in the early 1800s. At this time, the theory of hearsay was not well developed, and the various
          exceptions to the hearsay rule were not clearly defined. In this context, the phrase res gestae served as a convenient
          vehicle to escape from the hearsay rule in two primary situations. First, it was used to explain the admissibility of
          statements that were not hearsay at all. Second, it was used to justify the admissibility of statements that today come within
          the three exceptions ...: (1) statements of present sense impressions[;] (2) excited utterances[;] and (3) statements of
          present bodily condition, mental states, and emotions.
....
2. Recognition of the Res Gestae Doctrine in Other States

Initially, we observe that commentators have repeatedly urged that the res gestae doctrine be abandoned because of its vagueness
and imprecision....

Res gestae, however, has continued to be utilized by other courts as a viable concept, descriptive of the continuous nature of a
criminal offense and an exception to Rule 404(b)....

The prosecution, alternatively, argued that, even assuming arguendo that the apartment incident constituted HRE Rule 404(b)


Professor John Barkai, U.H. Law School - Evidence                                                                Page - 92
evidence, i.e., evidence of other bad acts, the trial court properly admitted the evidence because the ―[e]vidence that [Fetelee] was
angry, drunk, and violent just before coming into contact with Lincoln, Hartman, and Alik was relevant to show [Fetelee]'s state of mind,
motive, and intent.‖
....
In the instant case, we believe that the principles that historically have comprised the res gestae doctrine have been codified, but
without the use of the words ―res gestae,‖ within the HRE. As previously stated, certain concepts contained in the doctrine have been
subsumed within the exceptions to the hearsay rules found in HRE Rule 803, such as present sense impressions, excited utterance,
and the then-existing mental, emotional, or physical condition. More importantly, there is a specific HRE rule that speaks to the
evidence of other crimes, wrongs, or acts.
....
We, therefore, conclude that the res gestae doctrine is no longer a legitimate independent ground for admissibility of evidence in
Hawai‗'i inasmuch as the it is superseded by the adoption of the HRE. Accordingly, we are in accord with courts that have retired the
term ―res gestae‖ from the language of the law of evidence because it is no longer useful and tends only to confuse the reasoning with
respect to why a given evidence should be admissible. We are convinced by the rationale of other courts and commentators,
suggesting that the better practice is to analyze admissibility under the specific rule of evidence that applies to the particular factual
situation presented.
....
In light of the above discussion, we hold that the res gestae doctrine is no longer viable in this jurisdiction and shall not be used or
recognized as an independent basis for the admission of evidence. As such, we must now determine whether the apartment incident
in this case would nevertheless have been admissible under HRE Rule 404(b), thereby rendering the ICA's ultimate conclusion to
uphold the trial court's August 3, 2005 judgment of conviction and sentence proper.
[the court also concludes the evidence is not admissible under R 404(b)]
....
The prosecution, however, maintained ...:
            Evidence that [Fetelee] was angry, drunk, and violent just before coming into contact with Lincoln, Hartman, and Alik was
            relevant to show [Fetelee]'s state of mind, motive, and intent. Evidence of the incident was also necessary to aid the jury
            to understand the context in which the crime occurred and to refute [Fetelee]'s claims of self-defense and lack of intent. The
            evidence explained why [Fetelee] would pick a fight with two complete strangers for no apparent reason, knocking one of
            them unconscious and kicking him in the head while he lay on the ground before running to his apartment to get a knife to
            stab the other. As such, the evidence was relevant to show that [Fetelee] had intentionally engaged in conduct which was
            a substantial step in a course of conduct which was intended or know to cause the death of Alik and substantial bodily injury
            of Hartman.
....
i. intent

―[P]roof of the required mental element of the offenses charged [, i.e., intent,] is admissible because it does not require an inference
as to the character of the accused or as to his conduct.‖ ... In this case, the prosecution-having charged Fetelee with attempted
murder in the second degree, attempted assault in the second degree, and theft in the second degree-had the burden to prove that
Fetelee intentionally attempted to murder Alik, intentionally attempted to assault Hartman, and intentionally obtained or exerted
unauthorized control over Lincoln's ten dollars. Fetelee testified that Alik was stabbed with his own knife during Fetelee's struggle with
Alik and that he punched Hartman because he believed that Hartman was going to punch him. In other words, Fetelee maintained that
he acted in self-defense, thereby placing his intent in issue. Fetelee also denied taking any money from Lincoln, despite Lincoln's
account.
....
Thus, under a Rule 404(b) analysis, the question is whether evidence of the apartment incident was relevant to demonstrate Fetelee's
intent to commit the charged offenses. We answer in the negative.

Federal courts have announced that, if other crimes, wrongs, or acts are used to prove intent, ―the prior act must be similar to the
offense charged.‖ ....

Here, the event that transpired in Lopez's apartment regarding the parking stall was completely separate and distinct from the
incidents leading up to Fetelee's attempted murder, attempted assault, and theft charges. At the apartment, Fetelee and Lopez
argued about a van in the parking lot blocking his parking space. In contrast, Fetelee initially approached Lincoln for a cigarette and,
thereafter, approached the two Micronesian men because he believed they had harassed his then-girlfriend. It is inconceivable how
the apartment incident would be relevant to Fetelee's intent in attempting to murder Alik and assault Hartman, or his intent to deprive
Lincoln of her money. The similarities between Fetelee's conduct in Lopez's apartment and his conduct as it relates to the attempted
murder of Alik, attempted assault of Hartman, and theft against Lincoln are lacking....

ii. motive

―Unlike intent, motive is not an ultimate issue. However, evidence of motive is admissible to prove the state of mind that prompts a
person to act in a particular way; an incentive for certain volitional activity. Thus, proof of motive may be relevant in tending to refute
or support the presumption of innocence.‖
....


Professor John Barkai, U.H. Law School - Evidence                                                               Page - 93
The instant case, ... the apartment incident evidence could not have illustrated Fetelee's motive in committing the charged offenses
when such evidence was separate and distinct from the charged offenses, as discussed above. The apartment incident and the
incidents giving rise to the charged offenses were unrelated and lacked any nexus to each other. The parties involved were completely
different ... Neither group had any relation or connection to the other; the issues involved in each incident were substantively distinct.
Accordingly, we believe that the apartment incident was not relevant to prove Fetelee's motive to commit the charged offenses.

However, the prosecution submits that the apartment incident evidence was relevant to show, inter alia, Fetelee's motive inasmuch
as Fetelee ―was angry, drunk, and violent just before coming into contact with Lincoln, Hartman, and Alik.‖Clearly, the prosecution
premises its argument solely upon the belief that Fetelee's emotional state remained the same from the apartment until his
confrontation with Lincoln and the Micronesian men, thereby establishing the requisite nexus to render the evidence of the apartment
incident relevant. This premise, however, is questionable inasmuch as Lopez testified that Fetelee returned about ten minutes after
the incident at the apartment and appeared calm and apologetic. ...

Likewise, the apartment incident evidence clearly would not fall within the permissible purposes of Rule 404(b) and would merely
demonstrate Fetelee's propensity towards anger and provoking fights. Accordingly, we believe that nothing that occurred in Lopez's
apartment had any tendency to make the existence of any fact of consequence to the determination of the underlying criminal charges
more or less probable than it would be without the evidence.
....
In light of the aforementioned conclusion and the fact that this case turns on credibility of Fetelee, Clark, Hartman, and Alik, we cannot
say the trial court's admission of the evidence was harmless beyond a reasonable doubt.

                                                            IV. CONCLUSION
Based on the foregoing, we hold that the use of ―res gestae ‖ as an independent basis for the admission of evidence should be
abandoned in the wake of Hawaii's well-developed and long-standing rules of evidence. We further hold that, under the HRE Rule
404(b) analysis, the apartment incident evidence does not fall within the permissible purposes of Rule 404(b) to render the evidence
relevant and admissible. Accordingly, in light of our holdings, we are compelled to vacate the ICA's May 17, 2007 judgment on appeal
and the trial court's August 3, 2005 judgment of conviction and sentence, and remand the case to the trial court for a new trial
consistent with this opinion.

NAKAYAMA, J., concurring separately.

I respectfully concur in the result. Because the legislature intended that the Hawai‗i Rules of Evidence (―HRE‖) serve as ―a singular
and primary source‖ for evidentiary rules, I agree that the ICA gravely erred by acknowledging the res gestae doctrine, inasmuch as
the HRE supersedes the common law res gestae doctrine. See majority at 77-79, 175 P.3d at 733-35. However, I write separately
to emphasize the value and potential viability of res gestae evidence, as numerous federal courts that continue to rely on this doctrine
have demonstrated.
....
Accordingly, the res gestae doctrine alongside HRE Rule 404 would not create ambiguity or uncertainty.




Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook

R404(b) Intent. Courts of appeals routinely hold that extrinsic offense evidence isdmissible to prove intent
in drug cases. E.g., United States v. Puckett, 405 F.3d 589, 596 (7th Cir. 2005) (admissibility is "well
settled"), cert. denied, 546 U.S. 905, 126 S.Ct. 252, 163 L.Ed.2d 230 (2005); United States v. Lattner, 385
F.3d 947, 957 (6th Cir. 2004) ("Rule 404(b) evidence of prior involvement in uncharged drug offenses is
indeed relevant and admissible on the issue of intent."), cert. denied, 543 U.S. 1095, 125 S.Ct. 979, 160
L.Ed.2d 908 (2005); United States v. Misher, 99 F.3d 664, 670 (5th Cir.1996) ("it is settled in this Circuit
that Rule 404(b) permits the admission of other crime evidence when a defendant places his intent at issue
in a drug conspiracy case by pleading not guilty"), cert. denied sub nom. Cobb v. United States, 522 U.S.
819, 118 S.Ct. 73, 139 L.Ed.2d 32 (1997). United States v. Wilson, 107 F.3d 774, 784-85 (10th Cir.1997)
(dissimilarities between extrinsic offense and charged offense render extrinsic offense evidence
inadmissible).

R404(b) Identity. A common basis for admitting other crimes evidence is to show, via a modus operandi
theory, that the accused was the person who committed the charged crime. This requires a showing that the
crime or its perpetrator and the other crime share distinctive characteristics that evince a "signature


Professor John Barkai, U.H. Law School - Evidence                                                              Page - 94
quality." United States v. Sanchez, 988 F.2d 1384, 1393 (5th Cir.1993), cert. denied, 510 U.S. 878, 114
S.Ct. 217, 126 L.Ed.2d 173 (1993). If the accused is shown to have committed the other crime, it is more
likely that he committed this one. Of course, this use of other crimes evidence applies only if identity
is an issue in the case.
     The modus operandi theory works only if the two crimes share distinctive characteristics. United
States v. Simpson, 479 F.3d 492, 498 (7th Cir. 2007). A showing that they share features that are generic to
the type of crime committed is insufficient.
Example—Inadmissible. In United States v. Luna, 21 F.3d 874, 881 (9th Cir.1994), a bank robbery
prosecution, the government was erroneously permitted to introduce evidence of two other bank
robberies in which the defendant was allegedly involved. The court of appeals held that the features
common to the crimes were largely generic to "takeover" bank robberies and were insufficiently
distinctive in nature.
Example—Admissible. In United States v. Robinson, 161 F.3d 463, 466-68 (7th Cir.1998), cert. denied,
526 U.S. 1078, 119 S.Ct. 1482, 143 L.Ed.2d 565 (1999), the court pointed to numerous similarities
between two bank robberies that made them "clearly distinctive from the thousands of other bank
robberies committed each year." In both robberies, the robber donned an orange ski mask before
entering, carried a distinctive duffel bag in one hand and a handgun in the other, vaulted over the teller
counter and demanded money, emptied the teller drawers by himself after putting down the handgun,
and used a blue Chevrolet Cavalier as a getaway car.

     The degree of similarity in the characteristics must be substantial, but cannot be reduced to any
formula. United States v. Shumway, 112 F.3d 1413, 1420 (10th Cir.1997) (listing elements relevant
to "signature quality"). Courts should focus primarily on the similarities between the charged offense
and the other crimes rather than the dissimilarities, as no two crimes are ever committed in precisely
the same way. United States v. Powers, 978 F.2d 354, 361 (7th Cir.1992), cert. denied, 507 U.S. 935,
113 S.Ct. 1323, 122 L.Ed.2d 708 (1993). Proximity in time and location between the charged and
extrinsic offenses may also be important. United States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000), cert.
denied, 531 U.S. 849, 121 S.Ct. 124, 148 L.Ed.2d 78 (2000).
         Example—Admissible. In United States v. Sanchez, 988 F.2d 1384, 1393-94 (5th Cir.1993), cert.
         denied, 510 U.S. 878, 114 S.Ct. 217, 126 L.Ed.2d 173 (1993), evidence of the defendant's
         participation in another transaction was admissible where both transactions involved the sale in
         front of the same house of heroin in pink balloons and where, in both instances, the defendant
         used a primer gray Volkswagen bug and was accompanied by the apparent owner of the car.


R404(b) Motive. Although motive itself is rarely an element of a crime, evidence of motive is often probative
of the accused's guilt. Because it does not involve the use of character to prove conformity, other crimes
evidence may be used to prove motive under Rule 404(b).
     The other crimes may themselves provide the motive for committing the charged crime. Proof of the
other crimes may help establish why this particular person is likely to have committed the crime.
Where identity is not an issue, other crimes evidence may tend to prove the defendant's state of mind.
        Example—Admissible. In United States v. Siegel, 536 F.3d 306, 31718 (4th Cir.2008), cert.
        denied, U.S. 129 S.Ct. 770, 172 L.Ed.2d 760 (2008), the defendant was charged with
        killing the victim for the purpose of preventing him from providing law enforcement with
        information about federal crimes that she had committed. Evidence of the defendant's
        extensive history of fraudulent conduct was admissible to prove that the defendant had a very
        strong motive for silencing the victim.
        Example—Admissible. In United States v. LaFlam, 369 F.3d 153 (2d Cir. 2004), cert. denied,
        543 U.S. 951, 125 S.Ct. 363, 160 L.Ed.2d 268 (2004), the court held admissible evidence of the
        defendant's drug use to prove his motive to commit the charged bank robberies. The govern-
        ment's evidence included testimony that the defendant owed drug debts at the time of each
        robbery.
        Example—Inadmissible. In United States v. Madden, 38 F.3d 747, 75153 (4th Cir.1994), the

Professor John Barkai, U.H. Law School - Evidence                                       Page - 95
        court held that although drug use or addiction may provide a motivation to commit a bank robbery,
        such evidence is inadmissible unless the government demonstrates both that the accused had
        a significant drug habit or addiction and that he did not have the financial resources to support it.


    R404(b) Other purposes—List not exclusive. The purposes listed in Rule 404(b) for which other
crimes evidence may be offered is not exhaustive. United States v. Sanchez, 118 F.3d 192, 195 (4th
Cir.1997). The following are among the other purposes, listed and unlisted, for which other crimes
evidence may be offered:
     To prove absence of mistake. E.g., King v. Ahrens, 16 F.3d 265, 269 (8th Cir.1994) (defendant's
license suspension for over-prescribing percodan offered to prove his omission of prescription from
medical chart was deliberate; but evidence excluded under Rule 403).
      To demonstrate a common plan or scheme. E.g., United States v. DeCicco, 370 F.3d 206 (1st Cir.
2004) (previous attempt by defendant to burn down same building that defendant now charged with
burning down); Lewis v. United States, 771 F.2d 454, 456 (10th Cir.1985) (burglary of garage to obtain
equipment used to commit charged burglary of post office), cert. denied, 474 U.S. 1024, 106 S.Ct. 579,
88 L.Ed.2d 562 (1985). See Becker v. ARCO Chemical Co., 207 F.3d 176, 195-97 (3d Cir.2000)
(stressing that charged and extrinsic offenses must both constitute steps toward same final goal).
     Where the charged offense and the other crimes are inextricably intertwined. E.g., United States
v. Warren, 25 F.3d 890, 895 (9th Cir.1994) (stabbing of second victim immediately following first). Such
crimes are often said to be "intrinsic" to the charged offense and thus not considered "other" crimes.
See United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990).
      To show knowledge. E.g., United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002) (to prove
unlawful possession, evidence that defendant possess "the same or similar things at other times is often
quite relevant to his knowledge and intent with regard to the crime charged"); United States v. Blitz, 151
F.3d 1002, 1007-08 (9th Cir.1998) (evidence of defendant's prior employment at another fraudulent
telemarketing company admissible to prove defendant knew current telemarketing company was engaged
in fraudulent practices), cert. denied, 525 U.S. 1029, 119 S.Ct. 567, 142 L.Ed.2d 473 (1998).
     To show opportunity or capacity. E.g., United States v. Cruz-Garcia, 344 F.3d 951 (9th Cir.2003)
(cohort's six prior drug convictions admissible to rebut prosecution's theory that cohort was too dumb to
plan drug deal without defendant's help).
      To show consciousness of guilt. E.g., United States v. Rocha, 916 F.2d 219, 241 (5th Cir.1990)
(threat against witness), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991).
      To support or rebut a claim of entrapment. E.g., United States v. Thomas, 134 F.3d 975 (9th Cir.1998)
(allowing defendant to introduce evidence of good character to prove lack of criminal predisposition);
United States v. Knox, 112 F.3d 802, 810-12 (5th Cir.1997), aff'd in relevant part en banc, 120 F.3d 42
(5th Cir.1997), cert. denied 522 U.S. 1022, 118 S.Ct. 616, 139 L.Ed.2d 501 (1997); United States v.
Emerson, 501 F.3d 804, 812-13 (7th Cir. 2007) (allowing prosecution to introduce evidence of
defendant's bad character to prove criminal predisposition).




Professor John Barkai, U.H. Law School - Evidence                                        Page - 96
              CHARACTER EVIDENCE PROBLEMS 1
1.     Tort suit for damages in an automobile accident. Can plaintiff call a witness who will testify that the
       defendant is known to be a careless driver?


2.     Same auto tort suit. Can plaintiff testify that he is a careful driver and has never had an accident?


3B.    In the criminal assault case brought against Charlie, in its case-in-chief, the prosecution calls Mr.
       White to testify as follows:
       (a)     I have known Big Ed for five years at work and at home. I know him as a peaceful man.
               (revised G)


       (b)     Charlie's reputation for peacefulness is bad.


       (c)     At work only last week, I saw Charlie fighting with three other men.


4B     In the criminal assault case brought against Charlie, Charlie calls Jim Turbin to testify. Discuss the
       admissibility of the following testimony by Turbin.
       (a)     I have known Big Ed at work for the last three years. I believe him to be a very violent person.


       (b)     On one occasion I saw Big Ed just walk up to a friend of mine and hit him over the head with
               a board.


       (c)     Early in the evening on July 8, I saw Big Ed remove a pair of brass knuckles from his locker
               at the plant, put them on and smash the windows of three cars in the parking lot.


       (d)     I have known Charlie for ten years. We are neighbors. I have talked to my neighbors about
               Charlie. Charlie has the reputation of being a gentle, peaceful, and truthful man. (mod).


       (e)     On two occasions, I was with Charlie when we broke up fights at our local lodge. I have never
               seen him hit anyone.


       On cross-examination the prosecution asks Jim Turbin the following questions:
       (f)     You heard, haven't you, that Big Ed was given a commendation by the police department in
               May for breaking up a fight at a basketball game?


       (g)     Are you aware that Charlie was convicted of income tax evasion two years ago?


       (h)     You heard, didn't you, that Charlie was arrested for fighting at work only last week?



Professor John Barkai, U.H. Law School - Evidence                                        Page - 97
5.     On rebuttal, the prosecution again calls Mr. Black to testify as follows:
       (1)     I have known Big Ed for five years at work and at home. I know him as a peaceful man.


       (2)     I also know Charlie. I met him on a few occasions. His reputation for peacefulness is bad.


       (3)     Last week I saw Charlie fighting with three other men.


6.     Rambo was known around town as a "one man terrorist gang." He had burned down a house, shot
       three different people in the leg, and had been in 24 bar fights. Perry, the owner of Perry's Drugs,
       hired Rambo to serve as a security guard for the store. Perry gave Rambo a small-caliber pistol to
       carry while on duty. On his fifth day on the job, Rambo got into a fight with one of the customers and
       shot the customer in the leg. The customer brought suit against Perry, claiming negligent hiring.
           Plaintiff's first witness is the mayor of the town who will testify that in her opinion, Rambo is
       extremely dangerous, if not lethal. She will also recount all of the prior incidents involving Rambo's
       violent behavior. Which parts of the mayor's testimony, if any, are admissible?                   (SF 53)


7.     In this slander action, Dean Foster allegedly called the Budget Director of the University a "lazy jerk"
       after the Law School was denied its request to put a second floor on the law library. Which of the
       following evidence is admissible at trial? Why or why not?
       (a)     The Budget Director offers evidence that he worked past midnight on eighteen nights last
               month.


       (b)     The Budget Director offers evidence that he has a reputation in a the academic community
               for being very industrious.


       (c)     The Budget Director offers evidence that he is a peaceful, non-violent person.


       (d)     Dean Foster offers the testimony of Big Bucks, a former Budget Director of the University,
               who states that in his opinion, the current Budget Director is "lazy."


       (e)     Dean Foster offers evidence that the Budget Director has a reputation among academics
               for being a jerk.                                                               (SF 54)


8.     Civil assault & battery suit arising out of alleged police brutality. Can the civilian plaintiff introduce
       evidence of prior acts of violence committed by the defendant police officer on other people the
       officer arrested?




Professor John Barkai, U.H. Law School - Evidence                                           Page - 98
                     CHARACTER EVIDENCE PROBLEMS 2

1      In the prosecution for murder of V, can evidence be offered that V had threatened to expose D's
       participation in a land fraud scheme?


2      In the criminal assault trial of D, D claims as an alibi that he was on the mainland the day of the
       alleged assault. Can the prosecutor introduce evidence that D attempted to rob a 7-11 store in
       Kailua the same day as the assault?


3      Attempted murder charge. D and V are construction workers. D dropped a wrench while working
       2 floors above V which landed on V's head. Can prosecutor offer evidence that D had provoked
       fights with V on 2 prior occasions?


4      P. Hearst is on trial for bank robbery. She claims duress; she was coerced by the members of the
       gang to join in the robbery. Can prosecutor offer evidence that one month after the bank robbery,
       D was at the scene of a sporting goods store robbery and was waiting outside while the gang
       members went inside. When a gang member was stopped shoplifting, P. Hearst fired an automatic
       rifle that allowed the person inside to escape?


5      Bookkeeper is charged with embezzling funds of Company A, and claims as a defense that it was
       an innocent mistake. Can the prosecutor offer evidence that D was accused of embezzling funds
       from Company B 6 years earlier and that company did not prosecute because D maintained it was
       an innocent mistake?


6      D is charged with burglarizing V's home. He denies it was him. Can prosecutor offer evidence
       from two other witnesses that D burglarized their homes in the same area?


7      Charge: Attempted murder and assault.
       Def goes to see his estranged girlfriend who is working in a bar. He leaped up, grabbed her by the
       hair, said "Let's go", repeatedly stabbed her in the back and neck with a knife as he dragged her
       towards the door.
       Can victim testify that in prior incidents defendant slapped, punched, threatened her with knife,
       held gun to her, raped her, and threatened her?


8      D is charged with sexually molesting a minor child? D claims the child made up the incident. Can
       the prosecutor offer evidence that D molested V on prior occasions?




Professor John Barkai, U.H. Law School - Evidence                                      Page - 99
                     OTHER
                   RELEVANCE
                     ISSUES

              RULES 406 - 415




Professor John Barkai, U.H. Law School - Evidence   Page - 100
                                                                                            RULE 412 SEXUAL ASSAULT
                                  HAWAII - Amended 1999                                                                                                  FEDERAL
 RULE 412. SEXUAL OFFENSE AND SEXUAL HARASSMENT CASES; RELEVANCE OF                                                      RULE 412. SEX OFFENSE CASES; RELEVANCE OF ALLEGED
 VICTIM'S PAST BEHAVIOR                                                                                                  VICTIM'S PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL
      (a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual
                                                                                                                         PREDISPOSITION
 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.
                                                                                                                            (a) Evidence generally inadmissible.--The following evidence is not
      (b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual        admissible in any civil or criminal proceeding involving alleged sexual
 offense, evidence of an alleged victim's past sexual behavior other than reputation or opinion evidence is not          misconduct except as provided in subdivisions (b) and (c):
 admissible to prove the character of the victim to show action in conformity therewith, unless the evidence is:            (1) Evidence offered to prove that any alleged victim engaged in other
      (1) Admitted in accordance with subsection (c)(1) and (2) and is constitutionally required to be admitted;         sexual behavior.
 or
                                                                                                                            (2) Evidence offered to prove any alleged victim's sexual predisposition.
      (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
                                                                                                                            (b) Exceptions.--
 whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or                  (1) In a criminal case, the following evidence is admissible, if otherwise
      (B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged      admissible under these rules:
 victim consented to the sexual behavior with respect to which sexual assault is alleged.                                   (A) evidence of specific instances of sexual behavior by the alleged
      (c)(1)-(3) [Procedures for Admissibility - See Next Page]                                                          victim offered to prove that a person other than the accused was the source
      (d) In any civil action alleging conduct which constitutes a sexual offense or sexual harassment, opinion          of semen, injury or other physical evidence;
 evidence, reputation evidence, and evidence of specific instances of plaintiff's sexual conduct, or any of such
                                                                                                                            (B) evidence of specific instances of sexual behavior by the alleged
 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.
                                                                                                                         victim with respect to the person accused of the sexual misconduct offered
      (e) Subsection (d) shall not be applicable to evidence of the plaintiff's sexual conduct with the alleged          by the accused to prove consent or by the prosecution; and
 perpetrator.                                                                                                               (C) evidence the exclusion of which would violate the constitutional
      (f) In a civil action alleging conduct which constitutes a sexual offense or sexual harassment, if the plaintiff   rights of the defendant.
 introduces evidence, including testimony of a witness, or the plaintiff as a witness gives testimony, and the              (2) In a civil case, evidence offered to prove the sexual behavior or
 evidence or testimony relates to the plaintiff's sexual conduct, the defendant may cross- examine the witness who
                                                                                                                         sexual predisposition of any alleged victim is admissible if it is otherwise
 gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by
 the plaintiff or given by the plaintiff.
                                                                                                                         admissible under these rules and its probative value substantially outweighs
      (g) Nothing in subsections (d), (e) or (f) shall be construed to make inadmissible evidence offered to attack      the danger of harm to any victim and of unfair prejudice to any party.
 the credibility of the plaintiff.                                                                                       Evidence of an alleged victim's reputation is admissible only if it has been
      (h) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the sexual         placed in controversy by the alleged victim.
 behavior with respect to which a sexual offense or sexual harassment is alleged.

                                                                                                                         (c) Procedure to determine admissibility. [See next page]




Professor John Barkai, U.H. Law School - Evidence                                                                          Page - 101
                                                RULE 412 SEXUAL ASSAULT - Procedures for Admissibility
                           HAWAII - Amended 1999                                                                        FEDERAL
 RULE 412. SEXUAL OFFENSE AND SEXUAL HARASSMENT CASES;                                  RULE 412. SEX OFFENSE CASES; RELEVANCE OF ALLEGED
 RELEVANCE OF VICTIM'S PAST BEHAVIOR                                                    VICTIM'S PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL
    (c)(1) If the person accused of committing a sexual offense intends to offer        PREDISPOSITION
 under subsection (b) evidence of specific instances of the alleged victim's past         (c) Procedure to determine admissibility.--
 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      (1) A party intending to offer evidence under subdivision (b) must--
 to be offered is scheduled to begin, except that the court may allow the motion to       (A) file a written motion at least 14 days before trial specifically
 be made at a later date, including during trial, if the court determines either that   describing the evidence and stating the purpose for which it is offered
 the evidence is newly discovered and could not have been obtained earlier              unless the court, for good cause requires a different time for filing or
 through the exercise of due diligence or that the issue to which the evidence          permits filing during trial; and
 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.                                (B) serve the motion on all parties and notify the alleged victim or, when
    (2) The motion described in paragraph (1) shall be accompanied by a written
                                                                                        appropriate, the alleged victim's guardian or representative.
 offer of proof. If the court determines that the offer of proof contains evidence         (2) Before admitting evidence under this rule the court must conduct a
 described in subsection (b), the court shall order a hearing in chambers to            hearing in camera and afford the victim and parties a right to attend and be
 determine if the evidence is admissible. At the hearing, the parties may call          heard. The motion, related papers, and the record of the hearing must be
 witnesses, including the alleged victim, and offer relevant evidence.                  sealed and remain under seal unless the court orders otherwise.
 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                                         Page - 102
STATE v. CALBERO,                                   71 Haw. 115, 785 P.2d 157 (1989)                                       R 412
This is an appeal, after a jury trial, from convictions of sexual assault in the second degree and sexual assault in fourth degree.
Because of errors in evidentiary rulings by the trial court, we reverse and remand for a new trial.* * *
      In the course of the complaining witness' direct testimony, the following occurred:

      Q Now, [complaining witness], when the defendant reached into your shirt and grabbed your bra strap, is that when he
      said "Because of this"?
      A Yes.

      Q What did you think?
      A I got scared. I just sat real still.

      Q When you say you got scared, what were you thinking?
      A I didn't know what to do.

      Q What was it that made it so that you didn't really know what to do?
      A I never been in that situation before.

      At a sidebar conference, the following occurred:

            THE COURT: Record will show the witness has been excused and we're out of the presence of the jury. Mr.
      Cassiday, you had some matters you want to bring up?
            MR. CASSIDAY: Yes, Your Honor. On direct examination the witness testified that she didn't know what to
      do because nothing like this had ever happened before. I don't want to go into any 412 type material with this witness.
       I don't want to bring up any past sexual conduct. But, on the other hand, I don't want the jury left with the thought that
      this gal had never been kissed by a guy or whatever. I would like to inquire of her as to whether people have tried to
      kiss her in the past and whether she's told them not to.

      After a lengthy discussion and argument, the court ruled as follows:
            THE COURT: All right. I think I understand the position of both of the parties.
            I've read Hawaii Rule of Evidence 412 very carefully. That rule appears to completely prevent inquiry into the
      past sexual activity or past sexual conduct of the victim. It's a rape shield law in its purest sense. It states by its own
      language that notwithstanding any other law to the contrary--and I must presume any other evidentiary law to the
      contrary--that such inquiry should be barred.
            However, I don't really, I think in this particular case, need to rule whether whether or not there's any situation
      or I don't need to rule that there is no possible situation under which inquiry into the past conduct of the victim is
      applicable. I am going to rule in this particular case that the defendant has not opened any door, assuming a door could
      be opened under that rule, which would allow inquiry into her past sexual experience. I listened very carefully to see
      whether there might be a door open, and my notes indicate that she stated, quote, "I have never been in that situation
      before," closed quote. And I think a fair interpretation of her testimony in this regard that she's never been in this
      particular situation, involving alleged sexual misconduct by a family friend who's twice her age where the discussion,
      according to her at least, turned from sunset to taking off her pants, I cannot fairly read into her testimony on direct an
      allegation which would--excuse me. A statement which would allow the defense to go into her past experience on
      whether or not she's ever been experienced, kissed by anyone before or fondled by anyone before.
            For that reason I'm going to deny the request of the defense to conduct an inquiry into that area. Anything
      further?

    Subsequently, appellant's counsel wanted to have appellant testify as to the statements which the complaining witness
made to him during the course of the encounter.

            The following occurred:

Professor John Barkai, U.H. Law School - Evidence                                                         Page - 103
             MR. CASSIDAY: Let me put on the record what he would say so we are clear exactly what is going to be
      excluded and what isn't. He would say that what led up to the fact of him thinking that he had--that they were getting
      close or intimate was the fact that she was talking about her boyfriends in California. To which he asked her do you fool
      around on your boyfriend. To which she responded to him I could get any--or my boyfriends do a lot for me, and I can
      get anything I want from them. I can get any man I want and if I'm in the mood, and I just so happen to be in the mood.
       And at that they started kissing. And all of that has been excluded, which I am not going to present, but that would be
      the testimony which I would like to present.
             THE COURT: Miss Ahn, do you have anything further to say on the testimony which I am excluding?
             MS. AHN: No. I think the State's position is clear.
             MR. CASSIDAY: Well, I think that the Court should tell my client since we're on the record exactly what he
      can't or can say.
             THE COURT: I would be happy to do so. I was either going to either let you do it or I'll do it.
             But since you requested that I do it, Mr. Calbero, I'm placing limitations on your answers and on the questions
      which are going to be asked. I have placed the limitation and have barred testimony regarding the complaining witness'
      prior dealings with her boyfriend. Mr.--your lawyer, Mr. Cassiday, may ask you as to what happened here, and your
      answer may begin from that portion where she says, "Well, I can get anything I want out of a man." I'm assuming that
      this is what your answer is going to be. I don't know. But you can discuss what she talked about in terms of her belief
      as to her power over men and her mood and the fact that she was in the mood from that time on.
             Stay away from discussion as to what she told you what she did with her boyfriend or what you asked her about
      what she did with her boyfriend. Because in my opinion of the law that we have which bars evidence relating to a
      victim's or complaining witness' past sexual conduct bars discussion of that.
             You understand the point from which you can start talking? She's talking about men generally. You understand
      that?
             THE WITNESS: Right.

     Despite his assertion to the contrary at oral argument, appellant's counsel did not give the notice required under HRE
412(c)(1) and consequently there was no ruling thereunder, so the issue in this case does not involve the exclusion of evidence
properly offered by appellant under HRE 412.

     HRE 412 cannot override the constitutional rights of the accused. Under sections 5 and 14 of Article I of our State
Constitution, appellant's right of confrontation includes a right to appropriate cross- examination of the complaining witness.

      When the complaining witness, on questions by the prosecution on direct, stated with respect to the incident in
question "I [had] never been in that situation before", that statement was obviously offered for the purpose of bolstering a
necessary element of the offenses charged, to wit: compulsion, and negating the defense of consent. Appellant's counsel
wanted to cross- examine the complaining witness as to whether people had tried to kiss her in the past and whether she had
told them not to and the court below denied even that. [FN1]

      FN1. In the course of oral argument, the deputy prosecuting attorney denied that this was what had happened but the
transcript speaks for itself.

      In State v. Williams, 21 Ohio St.3d 33, 487 N.E.2d 560 (1986), the Supreme Court of Ohio, dealing with the Ohio
rape shield law, a statute (RC 2907.02(D)), stated:
      The contested issue in this case is consent, which directly relates to an element of the crime of rape. The victim testified
      on direct examination that she never consents to sex with men. The testimony proffered by appellee directly refutes
      this contention. As in Davis, this evidence is submitted for more than mere impeachment of a witness' credibility. The
      victim's credibility is indeed being impeached; however, the proffered evidence has a more important purpose, which
      is to negate the implied establishment of an element of the crime charged. For this reason, the probative value of the
      testimony outweighs any interest the state has in its exclusion. .... Accordingly, we find that the rape shield law as applied
      in this case violates appellee's Sixth Amendment right of confrontation. Id. at 36, 487 N.Ed.2d at 562-63.



Professor John Barkai, U.H. Law School - Evidence                                                         Page - 104
      In another case, dealing with Federal Rule of Evidence 412, which is, in all important respects, identical with HRE 412,
the court in Government of Virgin Islands v. Jacobs, 634 F.Supp. 933, 935 (D.V.I.1986), stated as follows:
      This case presents a novel question under the recently-enacted F.R.E. 412: does the confrontation clause extend to a
      rape defendant the right to impeach the prosecuting witness with instances of past sexual conduct despite Rule 412's
      general ban on such evidence? We hold that the accused has a right to cross-examination where the Government first
      opens the door on this otherwise inadmissible subject matter.

     Here, the government deliberately inserted into the record the victim's statement "I [had] never been in that situation
before." Reasonable cross- examination on that subject should have been allowed under the right of confrontation. It was not,
and the court below erred in prohibiting it.

      Moreover, there was error when the court below prohibited appellant from testifying as to everything the complaining
witness had said to him during the course of their encounter, about her past sexual experience, since her statements were
clearly relevant to the issue of consent.

      In Doe v. United States, 666 F.2d 43, 48 (4th Cir.1981), the issue was whether the victim had consented to the act
charged. On appeal, the Fourth Circuit Court affirmed a trial court order permitting the defendant to introduce, among
other things, telephone conversations that the defendant had with the alleged victim. In construing FRE 412, the court stated:
      Certainly, the victim's conversations with Black [the defendant] are relevant, and they are not the type of evidence that
      the rule excludes.

     The ruling below was not based on relevance (HRE 401) or on prejudicial affect (HRE 403), but on HRE 412. Due
process, however, allows the introduction of evidence relevant to the issue being tried.

       Whether or not the complaining witness had had past sexual experience was relevant only to the extent the State, by
eliciting her answer "I [had] never been in that situation before," had injected her past experience into the trial. But her alleged
boasting of her past sexual experiences to appellant (if the jurors believe it occurred), while parked in his car at the beach
could be construed by reasonable jurors to be an invitation to sexual advances, and, coupled with her failure to object, by
either words, or actions, to those advances, to constitute consent. The issue being tried here was consent, and the
complaining witness' statements as to her past sexual experience, in the context made, clearly were relevant to that issue and,
consequently, should have been admitted.

      Reversed and remanded for a new trial.




Professor John Barkai, U.H. Law School - Evidence                                                         Page - 105
    FEDERAL RULES OF EVIDENCE 413, 414, 415

RULE 413. EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT
CASES

    (a) In a criminal case in which the defendant is accused of an offense of sexual
assault, evidence of the defendant's commission of another offense or offenses of
sexual assault is admissible, and may be considered for its bearing on any matter to
which it is relevant.
    (b) In a case in which the Government intends to offer evidence under this rule,
the attorney for the Government shall disclose the evidence to the defendant,
including statements of witnesses or a summary of the substance of any testimony
that is expected to be offered, at least fifteen days before the scheduled date of trial
or at such later time as the court may allow for good cause.
    (c) This rule shall not be construed to limit the admission or consideration of
evidence under any other rule.
    (d) For purposes of this rule and Rule 415, "offense of sexual assault" means a
crime under Federal law or the law of a State (as defined in section 513 of title 18,
United States Code) that involved--
    (1) any conduct proscribed by chapter 109A of title 18, United States Code;
    (2) contact, without consent, between any part of the defendant's body or an
object and the genitals or anus of another person;
    (3) contact, without consent, between the genitals or anus of the defendant and
any part of another person's body;
    (4) deriving sexual pleasure or gratification from the infliction of death, bodily
injury, or physical pain on another person; or
    (5) an attempt or conspiracy to engage in conduct described in paragraphs
(1)-(4).




Professor John Barkai, U.H. Law School - Evidence                      Page - 106
RULE 414. EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES
    (a) In a criminal case in which the defendant is accused of an offense of child molestation,
evidence of the defendant's commission of another offense or offenses of child molestation is
admissible, and may be considered for its bearing on any matter to which it is relevant.
     (b) In a case in which the Government intends to offer evidence under this rule, the attorney
for the Government shall disclose the evidence to the defendant, including statements of witnesses
or a summary of the substance of any testimony that is expected to be offered, at least fifteen days
before the scheduled date of trial or at such later time as the court may allow for good cause.
    (c) This rule shall not be construed to limit the admission or consideration of evidence under
any other rule.
     (d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen,
and "offense of child molestation" means a crime under Federal law or the law of a State (as
defined in section 513 of title 18, United States Code) that involved--
   (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was
committed in relation to a child;
    (2) any conduct proscribed by chapter 110 of title 18, United States Code;
     (3) contact between any part of the defendant's body or an object and the genitals or anus of a
child;
    (4) contact between the genitals or anus of the defendant and any part of the body of a child;
    (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or
physical pain on a child; or
    (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).


RULE 415. EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL
ASSAULT OR CHILD MOLESTATION
     (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged
commission of conduct constituting an offense of sexual assault or child molestation, evidence of
that party's commission of another offense or offenses of sexual assault or child molestation is
admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.
     (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the
party against whom it will be offered, including statements of witnesses or a summary of the
substance of any testimony that is expected to be offered, at least fifteen days before the scheduled
date of trial or at such later time as the court may allow for good cause.
    (c) This rule shall not be construed to limit the admission or consideration of evidence under
any other rule.




Professor John Barkai, U.H. Law School - Evidence                                   Page - 107
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
R412 Sex Offense Cases
Other sexual behavior. Rule 412(a)(1) proscribes the use of any evidence offered to prove that an
alleged victim engaged in other sexual behavior. This includes:
•       All activities that involve actual physical contact such as sexual intercourse and sexual contact.
•       All activities that imply sexual intercourse or contact. See, e.g., United States v. Galloway, 937
F.2d 542, 548 (10th Cir.1991) (victim's use of contraceptives); United States v. Duran, 886 F.2d 167 (8th
Cir.1989) (victim had illegitimate child).
•      Statements that indicate a desire to engage in sexual activity. United States v. Papakee, 573
F.3d 569, 573 (8th Cir. 2009).
•       Fantasies or dreams that imply sexual activity. See Advisory Committee's Note.
•       Reputation or opinion evidence about the alleged victim.
The rule only reaches evidence of "other" sexual behavior. The Advisory Committee‘s Note indicates that
evidence of sexual behavior intrinsic to the alleged sexual misconduct is not "other" sexual behavior and
may thus be admissible.
Sexual predisposition. Rule 412(a)(2) renders inadmissible evidence offered to prove the sexual
predisposition of an alleged victim. This includes evidence relating to the alleged victim's mode of dress,
speech and life-style if offered for its sexual connotation.
Prior false claims are not considered sexual behavior. United States v. Bartlett, 856 F.2d 1071, 1087-89
(8th Cir.1988). Although not rendered inadmissible by Rule 412, their admissibility must still be tested
under Rules 404, 405 and 608; See Boggs v. Collins, 226 F.3d 728, 736-43 (6th Cir.2000), cert. denied
532 U.S. 913, 121 S.Ct. 1245, 149 L.Ed.2d 152 (2001).

R413 Evidence of Similar Crimes in Sexual Assault Cases
         Type of evidence admissible. Contrary to the general rule barring evidence of a person's
character to prove that the person acted in conformity with that character, Rule 413 specifically authorizes
the admission of evidence of other instances in which the defendant committed a sexual assault "for its
bearing on any matter to which it is relevant." The other instances need not have resulted in conviction and
may have been either prior or subsequent to the charged offense. United States v. Sioux, 362 F.3d 1241 (9th
Cir. 2004). Although the Rule makes no mention of the quantum of proof required to prove the defendant
committed the other sexual assault or assaults, this will in all likelihood be viewed as a question of
conditional relevancy. See Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771
(1988). Therefore, the proponent of the evidence will be required to offer only enough evidence so that a
reasonable juror could find that the defendant committed the other sexual assault. Any other act offered
under this rule must constitute an act of sexual assault or attempted sexual assault. United States v. Blue
Bird, 372 F.3d 989, 992 (8th Cir. 2004) (trial court erred in admitting evidence of other acts by defendant that
were not sexual acts, sexual contact or attempts thereof).
         Notice requirement. The prosecution must provide the defendant with notice of its intent to
introduce evidence under Rule 413. It must disclose the statements of witnesses or a summary of the
substance of their expected testimony at least fifteen days prior to trial. The court may, for good cause, allow
the prosecution to disclose the evidence at a later time. E.g., United States v. Guidry, 456 F.3d 493, 504-05
(5th Cir. 2006).
         Rule 403. Rule 413 clearly favors admissibility of other sexual assault evidence. United States v.
Hawpetoss, 478 F.3d 820, 823-826 (7th Cir. 2007) (discussing factors to be considered). See, e.g., United
States v. Julian, 427 F.3d 471, 485-88 (7th Cir. 2005) (upholding admission of twelve-year-old offense), cert.
denied, 546 U.S. 1220, 126 S.Ct. 1444, 164 L.Ed.2d 143 (2006). But courts should still exclude such
evidence when its probative value is substantially outweighed by the danger of unfair prejudice. United


Professor John Barkai, U.H. Law School - Evidence                                         Page - 108
States v. Mound, 149 F.3d 799, 800 (8th Cir.1998), United States v. Guardia, 135 F.3d 1326, 1329-30 (10th
Cir.1998).

R413 Evidence of Similar Crimes in Civil Cases Concerning Sexual Assault or Child Molestation.
Type of evidence admissible. Contrary to the general rule barring evidence of a person's character to
prove that the person acted in conformity with that character, Rule 414 specifically authorizes the admission
of evidence of other instances in which the defendant committed an act of child molestation "for its bearing
on any matter to which it is relevant." See United States v. LeCompte, 131 F.3d 767 (8th Cir.1997) (similar
crimes evidence held inadmissible under Rule 404(b) in first trial, held admissible under Rule 414 in retrial).
The other instances need not have resulted in conviction. E.g., United States v. Larson, 112 F.3d 600,
604-05 (2d Cir. 1997). Although the Rule makes no mention of the quantum of proof required to prove the
defendant committed the other sexual assault or assaults, this will in all likelihood be viewed as a question
of conditional relevancy. See Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771
(1988). Therefore, the proponent of the evidence will be required to offer only enough evidence so that a
reasonable juror could find that the defendant committed the other acts of child molestation.

        Notice requirement. The prosecution must provide the defendant with notice of its intent to
introduce evidence under Rule 414. It must disclose the statements of witnesses or a summary of the
substance of their expected testimony at least fifteen days prior to trial. The court may, for good cause, allow
the prosecution to disclose the evidence at a later time.

         Rule 403. Rule 414 clearly favors admissibility of evidence of other acts of child molestation. See,
e.g., United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007) (upholding admission of twenty-two-year-old
conviction), cert. denied,U.S. ___., 128
S.Ct. 1917, 170 L.Ed.2d 778 (2008); United States v. Meacham, 115 F.3d 1488, 1491-95 (10th Cir.1997)
(upholding admission of twenty-five year old incident). But courts should still exclude such evidence when its
probative value is substantially outweighed by the danger of unfair prejudice. United States v. Hawpetoss,
478 F.3d 820, 823-826 (7th Cir. 2007) (discussing factors to be considered); United States v. McHorse, 179
F.3d 889 (10th Cir.1999), cert. denied, 528 U.S. 944, 120 S.Ct. 358, 145 L.Ed.2d 280 (1999). E.g., United
States v. Larson, 112 F.3d 600, 602-05 (2d Cir.1997) (excluding evidence of molestations that occurred
21-23 years earlier, but admitting evidence of molestations that occurred 16-20 years earlier).




Professor John Barkai, U.H. Law School - Evidence                                         Page - 109
               SEXUAL ASSAULT PROBLEMS - R 412


The Facts:
    A defendant (D) charged with sexual assault and the victim (V) know each other. At some
    time they have sex. V goes to hospital to be treated for injuries and files a rape charge with the
    police. The defendant claims it was consensual sex (and therefore no crime). May D admit the
    following evidence?


1   Testimony from W1 that V has a reputation for having sex with many men, and in W1's
    opinion, V would sleep with anyone she met.


2   Testimony from W2 who says he had sex with the victim 2 weeks before the alleged incident.


3   Testimony from D that he had consensual sex with V a week before the alleged sexual assault.


4   A new defense. D wants to testify that "I didn't have sex with V, that night. It must be another
    guy."


5   D wants to testify that he knew of V's reputation for having sex with many guys.


6   D wants to call a witness who will testify that "V is a prostitute." D's defense is that he did not
    have sex with V.


7   D wants to call a witness who will testify that "V is a prostitute." D's defense is consent. D
    claims V did act as a prostitute that night. He paid money for sex.


8   D wants to offer testimony that V lives with a boyfriend and that V is falsely accusing D of
    rape to protect V's relationship with boyfriend. V doesn't want her boyfriend to know that she
    was having consensual sex with other guys.




Professor John Barkai, U.H. Law School - Evidence                                  Page - 110
STATE v. OKUDA, 71 Haw. 434,                             795 P.2d 1 (1990)                                 R 406

       Defendant-Appellant Tom Okuda (Defendant) was convicted by a jury of six counts of Fixing Tickets ...
one count of Tampering with a Public Record ... and six counts of Unsworn Falsification to Authorities.... The
trial court sentenced Defendant to one year of probation on each count, to be served concurrently, imposed
fines totaling $800, and required the performance of community service totaling 400 hours. The court also
ordered him summarily discharged from his job pursuant to HRS s 286-138(a).
                                                       ***
     Because of the volume of traffic tickets they handled and due to the passage of time, the TVB [Traffic
Violations Bureau] clerks, managing clerks, and police officers who testified generally were unable to recall the
specifics of the eight tickets pertinent to this case. The trial court, however, permitted them to testify about the
handling of other tickets in general as evidence of habit and routine practice under Hawaii Rules of Evidence
(HRE) Rule 406.


      Defendant claims error because (1) the State failed to lay an adequate foundation to establish that the
witnesses' testimony constituted evidence of habit, and (2) the evidence admitted under the guise of habit was
really evidence of prior bad acts "to prove the character of [Defendant] to show that he acted in conformity
therewith." HRE Rule 404(b). We find no error.


      While the use of character evidence under HRE Rule 404 is stringently limited, "relevancy, in general, is
the only limitation upon proof of habit or routine practice." ... Also, [h]abit or routine practice may be proved by
testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding
that the habit existed or that the practice was routine. The question whether repeated instances rise to the level
of habit is "subject to the sound discretion of the trial judge."


     Applying the foregoing precepts, we hold that the trial court did not err in admitting the questioned
evidence pursuant to HRE Rule 406. In our view, the trial court did not abuse its discretion in holding that the
foundation was adequate in allowing testimony of habit, custom, and routine procedure. Moreover, the
admitted evidence was relevant.


      Defendant's claim that the testimony dealt with evidence of prior bad acts precluded by HRE Rule 404(b)
is without merit. The trial court excluded most of the testimony concerning the acts of Defendant and other
testimony deemed questionable on the basis of whether it actually dealt with habit, custom, or routine
procedure. The admitted testimony generally concerned the habit or custom of the testifying police officers
regarding the issuance of traffic tickets and the signing of affidavits, and the routine procedures of TVB clerks
in the processing of tickets.


     We find no error in the trial court's admission of the questioned testimony under HRE Rule 406.
                                                       ***
     The convictions of one count of Tampering with a Public Record and six counts of Unsworn Falsification
to Authorities are reversed. The convictions of six counts of Fixing Tickets are affirmed. The State's
cross-appeal is dismissed.




Professor John Barkai, U.H. Law School - Evidence                                             Page - 111
                                      HABIT PROBLEMS
1.   Cars driven by Pablo (P) and Dell (D) crash at the four-way stop corner of First and Koa Streets at 6 p.m.,
     July 2 last year. Are the following admissible?


     (a) The plaintiff has a person who will testify that Pablo is a careful person.


     (b) The plaintiff has a person who will testify that Pablo is a careful driver.


     (c) The plaintiff has a person who will testify that Dell is "always in a rush."


     (d) The plaintiff has a person who will testify that Dell is an alcoholic.


     (e) The plaintiff has a person who will testify that Dell always has two beers at a bar next to his work place
                 when he gets off work at 5 p.m.


     (f) The defendant has a person who will testify that Dell usually stops at stop signs.


     (g)         The defendant has a person who will testify that Dell always stops at the stop sign at First and
                 Koa Streets.                                                                 (Friedman 18.56)


2.   The defendant was accused of stealing a shirt from Liberty House. The defendant claimed at trial that he
     purchased the shirt but was not given a sales receipt. The prosecution then attempted to introduce
     evidence that it was the custom of Liberty House to give sales receipts with every purchase. Is the
     evidence admissible?                                                                            (SF 69)


3.   Hank McWhorter, the plaintiff, claims he was fired from the police force because he exercised his First
     Amendment right to freedom of speech. The plaintiff offers evidence at trial that the police department
     habitually fired individuals who exercised their First Amendment right, letting go several different people
     for speaking out. Is this evidence admissible? McWhorter v. City of Birmingham 906 F.2d 674 (1990)(SF 69)


4A. Discuss the admissibility of the following items of evidence offered by the defendant Owens Construction
    Co., Inc.


     (a) Testimony by Margaret Boyd that on each of five prior occasions when she had observed Billy Boy
                cross First Street, he did a wheely off the curb.


     (b)         Testimony by the shop foreman that the brakes on its fleet of fifty automobiles are inspected
                 monthly and repaired immediately when necessary.                                    (Graham)



Professor John Barkai, U.H. Law School - Evidence                                             Page - 112
AULT v. INTERNATIONAL HARVESTER COMPANY
528 P.2d 1148 (1975) Supreme Court of California
MOSK, Justice.
    Plaintiff was injured in an accident involving a motor vehicle known as a 'Scout,' manufactured by
defendant. He brought an action alleging that the accident was caused by a defect in the design of the vehicle,
asserting that he was entitled to recovery under theories of strict liability, breach of warranty, and negligence.
      The gear box of the Scout involved in the accident was manufactured of aluminum 380, a material which
plaintiff asserts was defective for that purpose....
      It was plaintiff's contention that the gear box broke because the aluminum 380 out of which it was made
suffered from metal fatigue, and he produced a number of expert witnesses in support of this theory. Plaintiff's
witnesses also testified that aluminum 380 was an unsuitable material out of which to build the gear box, that
malleable iron was stronger than aluminum 380, that a gear box made of malleable iron would have been less
likely to fail, and that in 1967, three years after the accident, defendant substituted malleable iron for aluminum
380 in the manufacture of the Scout's gear box.
      [1][2] Defendant asserts that the admission of the evidence it changed from aluminum 380 to malleable
iron after the accident violated the proscription of section 1151. In our view, however, the language and the
legislative history of section 1151 demonstrate that the section is designed for cases involving negligence or
culpable conduct on the part of the defendant, rather than to those circumstances in which a manufacturer is
alleged to be strictly liable for placing a defective product on the market. Furthermore, we are not persuaded
that the rationale which impelled the Legislature to adopt the rule set forth in the section for cases involving
negligence is applicable to suits founded upon strict liability, and we therefore decline to judicially extend the
application of the section to litigation founded upon that theory.


    [3][4][5] Section 1151 by its own terms excludes evidence of subsequent remedial or precautionary
measures only when such evidence is offered to prove negligence or culpable conduct. In an action based
upon strict liability against a manufacturer, negligence or culpability is not a necessary ingredient. The plaintiff
may recover if he establishes that the product was defective, and he need not show that the defendants
breached a duty of due care....


     [6][7] Defendant maintains that the phrase 'culpable conduct' in section 1151 is sufficiently broad to
encompass strict liability. It concedes that the term 'culpable' implies blameworthiness, and that a
manufacturer in a strict liability action may not be blameworthy in a legal sense. However, asserts defendant,
a manufacturer who has placed a defective product on the market is blameworthy in a moral sense, and is
therefore guilty of 'culpable conduct' within the meaning of section 1151. We are unpersuaded by this tenuous
construction. It is difficult to escape a contrary conclusion: if the Legislature had intended to encompass cases
involving strict liability within the ambit of section 1151, it would have used an expression less related to and
consistent with affirmative fault than 'culpable conduct'--a term which, under defendant's theory, would
embrace a moral rather than a legal duty....


     [8] Nevertheless, courts and legislatures have frequently retained the exclusionary rule in negligence
cases as a matter of 'public policy,' reasoning that the exclusion of such evidence may be necessary to avoid
deterring individuals from making improvements or repairs after an accident has occurred. Section 1151 rests
explicitly on this 'public policy' rationale. In explaining the purpose of the section, the draftsmen's comment
states: 'The admission of evidence of subsequent repairs To prove negligence would substantially discourage
persons from making repairs after the occurrence of an accident.'


Professor John Barkai, U.H. Law School - Evidence                                            Page - 113
     While the provisions of section 1151 may fulfill this anti-deterrent function in the typical negligence action,
the provision plays no comparable role in the products liability field. Historically, the common law rule codified
in section 1151 was developed with reference to the usual negligence action, in which a pedestrian fell into a
hole in a sidewalk ... or a plaintiff was injured on unstable stairs ... in such circumstances, it may be realistic to
assume that a landowner or potential defendant might be deterred from making repairs if such repairs could be
used against him in determining liability for the initial accident.


       When the context is transformed from a typical negligence setting to the modern products liability field,
however, the 'public policy' assumptions justifying this evidentiary rule are no longer valid. The contemporary
corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of
units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in
its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image,
simply because evidence of adoption of such improvement may be admitted in an action founded on strict
liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary
rule of section 1151 does not affect the primary conduct of the mass producer of goods, but serves merely as
a shield against potential liability. In short, the purpose of section 1151 is not applicable to a strict liability case
and hence its exclusionary rule should not be gratuitously extended to that field.


     This view has been advanced by others. It has been pointed out that not only is the policy of encouraging
repairs and improvements of doubtful validity in an action for strict liability since it is in the economic self interest
of a manufacturer to improve and repair defective products, but that the application of the rule would be
contrary to the public policy of encouraging the distributor of mass-produced goods to market safer products....


     [9] Given the purpose of section 1151, and the difference between negligence and products liability
actions noted above, it is not surprising that in drafting the provision of Legislature confined the section to
actions in which the defendant's 'negligence' or 'culpable conduct' is at issue. Neither the Legislature nor the
Law Revision Commission which drafted the section could have been oblivious to the likely evidentiary use of
subsequent design changes in strict liability cases. Thus, the limitation of the section to essentially negligence
causes of action must be deemed deliberate and significant. [FN5]


     ... Under these circumstances, the trial court correctly refused to admit examination of plaintiff on the
basis of the prior pleading....


     The judgment is affirmed.




Professor John Barkai, U.H. Law School - Evidence                                                 Page - 114
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook


R406 Habit
        Example—Habit established. In United States v. Luttrell, 612 F.2d 396, 397 (8th Cir.1980),
        a prosecution for failure to file tax returns for 1974 and 1975, the prosecution was permit ted
        to introduce evidence of the defendant's failure to file returns for 1971-72 and 1976-78 in order
        to establish his "habit" of failing to file.
        Example—Habit not established. In Leonard v. Nationwide Mutual Ins. Co., 499 F.3d 419,
        442 (5th Cir. 2007), cert. denied, ____ U.S. 128 S.Ct. 1873, 170 L.Ed.2d 745 (2008),
        evidence that, over the course of a decade, an insurance agent told five customers that they
        should not purchase flood insurance unless they lived in a flood-prone area did "not remotely
        qualify or quantify as a habit within the meaning of Rule 406."
        Example—Routine practice established. In Mobil Exploration and Producing U.S., Inc. v. Cajun
        Const. Serv., Inc., 45 F.3d 96, 100 (5th Cir.1995), evidence regarding the manner in which the
        defendant loaded its trucks in over 3400 instances was held sufficient to establish that
        routine practice of the defendant.
        Example—Routine practice not established. In United States v. West, 22 F.3d 586, 591-92
        (5th Cir.1994), cert. denied, 513 U.S. 1020, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994), the
        defendant attempted to prove that it was the routine practice of the FDIC to allow parties to
        purchase their own discounted notes, held by a failed institution, through third party straw
        purchasers. The trial court properly excluded the evidence because the defendant failed to
        make a comparison of the number of transactions in which the FDIC allowed straw purchasers
        with the number in which it did not.
Routine practice of an organization. Evidence of the customary practice of a business is admissible to
prove that the business acted in accordance with that practice on a particular occasion, and is often
considered even more probative than individual habit evidence. Mobil Exploration and Producing U.S., Inc.
v. Cajun Const. Serv., Inc., 45 F.3d 96, 99 (5th Cir.1995). Rule 406 substitutes the term "routine
practice" for the more traditional "custom." The common law allowed evidence of routine practice only if
it corroborated or was corroborated by evidence that the routine had been followed in the particular
case. Rule 406 explicitly drops this requirement.
Routine practice—Admissible. The following are examples of conduct that has been held to constitute
"routine practice":
     A military base's practice of using base facilities to make authorized retirement gifts. United States
v. Sheffield, 992 F.2d 1164, 1169-70 (11th Cir.1993).
That an insurance company's agents routinely waived written policy conditions. Rosenburg v. Lincoln Am.
Life Ins. Co., 883 F.2d 1328, 1336 (7th Cir.1989).




Professor John Barkai, U.H. Law School - Evidence                                       Page - 115
                           RULE 407. SUBSEQUENT REMEDIAL MEASURES
                          HAWAII                                                              FEDERAL
    When, after an event, measures are taken                              When, after an injury or harm allegedly
which, if taken previously, would have made the                      caused by an event, measures are taken that, if
event less likely to occur, evidence of the                          taken previously, would have made the injury or
subsequent measures is not admissible to prove                       harm less likely to occur, evidence of the
negligence or culpable conduct in connection                         subsequent measures is not admissible to prove
with the event.                                                      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                          This rule does not require the exclusion of
evidence of subsequent measures when offered                         evidence of subsequent measures when offered
for another purpose, such as proving dangerous                       for another purpose, such as proving ownership,
defect in products liability cases, ownership,                       control, or feasibility of precautionary measures,
control, or feasibility of precautionary measures,                   if controverted, or impeachment.
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 - 116
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook

R407 Subsequent Remedial Measures
The following are examples of remedial measures.
- A design change. Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463 (7th Cir. 1984).
Installation of safety features. Baker v. Canadian National/Ill. Central R.R., 536 F.3d 357, 366-67 (5th Cir.
2008.
- The firing of or disciplinary action against an employee. Specht v. Jensen, 863 F.2d 700 (10th Cir.1988).
- A change in rules or policies. First Security Bank v. Union Pacific Railroad Co., 152 F.3d 877, 881 (8th
Cir.1998).
                                                                                   th
- A new or modified warning. Chlopek v. Federal Ins. Co., 499 F.3d 692, 700 (7 Cir. 2007).
    Post-accident analyses or studies are generally not considered subsequent remedial measures. Brazos River
    Auth. v. GE Ionics, Inc., 469 F.3d 416, 430-31 (5th Cir.          2006); Prentiss & Carlisle Co. Inc. v.
    Koehring-Waterous Div., 972 F.2d 6, 10 (1st Cir.1992). But see Complaint of Consolidation Coal Co.,
    123 F.3d 126, 136-37 (3d Cir.1997), cert. denied 523 U.S. 1054, 118 S.Ct. 1380, 140 L.Ed.2d 526
    (1998).
     (3) Timing of remedial measure. The remedial measure must be taken after the occurrence of the
     accident or event that allegedly caused the injury or harm. Thus, a remedial measure taken after a product
     was purchased, but before the accident or event that caused the alleged injury does not qualify as a
     subsequent remedial measure. Bogosian v. Mercedes-Benz of North America, Inc., 104 F.3d 472, 481
       st
     (1 Cir.1997); Traylor v. Husqvarna Motor, 988 F.2d 729, 733 (7th Cir.1993).
     (4) Third party remedial measures. Rule 407 does not bar the admission of remedial measures
     taken by third parties. A third party will not be deterred from taking a remedial step by the fear that its
     action will later be used as proof in a case to which it is not a party. Millennium Partners, L.P. v. Colmar
     Storage, LLC, 494 F.3d 1293, 1302-03 (11th Cir. 2007); Diehl v. Blaw-Knox, 360 F.3d 426, 430 (3d Cir.
     2004) (citing cases). Such evidence may, however, be excluded under Rule 403. See Authors'
     Comment (10) infra.
     (5) Compelled remedial measures. Some courts have held that evidence of a party's own subsequent
     remedial measure should be admissible when the party was compelled by the government to take the
     precautionary act. The compulsory nature of the action negates the danger that the party would be
     deterred from taking it by the fear that it would be used as evidence against it. In re Aircrash in Bali,
     Indonesia, 871 F.2d 812, 817 (9th Cir.1989) (FAA investigation), cert. denied, 493 U.S. 917, 110 S.Ct.
                                                                                        th
277, 107 L.Ed.2d 258 (1989); Chase v. General Motors Corp., 856 F.2d 17, 20-21 (4 Cir.1988) (recall letter).




Professor John Barkai, U.H. Law School - Evidence                                           Page - 117
                                                                       HRE 408, 104, & ADOPTIVE ADMISSIONS

STATE v. GANO
92 Hawai'i 161, 988 P.2d 1153 (1999)

Defendant was convicted following jury trial in the Fifth Circuit Court on sexual assault and kidnapping
charges. Defendant appealed. The Supreme Court, Moon, C.J., held that: (1) rule that generally excludes
evidence of settlement offers if offered to prove liability applies in criminal proceedings, but an accused's
offer to pay value to a complainant in an attempt to avoid prosecution is not excludable under that rule...
      Reversed and remanded for new trial.

Opinion of the Court by MOON, C.J.
A jury found defendant-appellant Rodolfo Gano (Defendant) guilty of: (1) one count of Sexual Assault in the
First Degree, (2) two counts of Sexual Assault in the Third Degree, and (3) one count of Kidnapping. On
August 17, 1998, the fifth circuit court entered an Amended Final Judgment against Defendant, sentencing
him to twenty years of indeterminate imprisonment. On appeal, Defendant contends that his convictions
should be vacated and remanded because the circuit court erred in: (1) ruling that Hawai i Rules of
Evidence (HRE) Rule 408 has no application in criminal cases; (2) admitting hearsay evidence of a
proposed settlement offer under HRE Rule 408; and (3) admitting evidence under the adoptive admission
exception to the hearsay rule in the absence of a proper foundation. For the reasons discussed below, we
agree with Defendant, vacate Defendant's judgment of conviction and sentence, and remand this case for
a new trial.

Defendant and Complainant were friends. Complainant, then age sixteen, attended Defendant's
twenty-second birthday party. After Complainant arrived at the party, Defendant invited her upstairs to the
living room, while the “adults” remained downstairs in the garage area. Defendant's first language is
Ilocano; however, he spoke to Complainant in her first language, Tagalog. At this point, the accounts of
that evening diverge [the complainant charges sexual assault; the defendant claims consensual acts].

...two days after the incident, Complainant told her parents about her encounter with Defendant. The
parents and Complainant went that same day to the police station and filed a complaint.

... approximately one month after the incident, Aunt spoke with the mother of Complainant (Mother) over the
telephone. Apparently, Aunt and Mother were friends. During the conversation, Aunt told Mother that the
police had been to her house and asked Mother what was going on. Upon hearing the allegations, Aunt
asked for permission to visit Mother to talk about the incident in person. Mother agreed. Aunt then called
Defendant and told him to accompany Aunt to the home of Complainant. Defendant did not want to go.

When Defendant and Aunt arrived at Complainant's home Aunt spoke with Mother in Tagalog (Mother did
not understand or speak Ilocano) while Defendant stood by idly. Approximately an hour into their
conversation, [a] cousin ... arrived. Aunt, Cousin, and Defendant were at Complainant's home for several
hours...During the conversation prior to Father's arrival, Aunt, according to Mother's testimony, apparently
asked Mother to drop the case. Cousin, separately and in Tagalog, offered money to Mother. Defendant
remained silent.

When Father returned home from work, Aunt and Cousin talked to Father, in Tagalog, about the case and
offered him money. Father testified that, although Defendant remained silent during the conversation,
Defendant was “shaking his head” the entire time. up and down or side-to-side...

At trial, Aunt denied asking Complainant's parents to drop the charges, and Cousin denied offering the
parents money. Defendant claimed he did not speak, did not hear any offers, and did not ask the parents
to drop the charges. Additionally, Defendant testified that, when Mother asked him directly, he affirmatively
denied using force upon Complainant.

C. The Motion in Limine



Professor John Barkai, U.H. Law School - Evidence                                        Page - 118
Prior to trial, Defendant filed a Motion in Limine to exclude, among other things, any evidence regarding the
meeting...

III. DISCUSSION

Defendant contends that the circuit court erred in ruling that HRE Rule 408 has no application in criminal
proceedings. The prosecution concedes that HRE Rule 408 applies in criminal proceedings, but argues
that it did not apply in the instant case because the monetary offer was to “settle” criminal charges.
Because the circuit court ruled specifically that Rule 408 did “not [apply] in criminal cases,” and to clarify the
holding in In the Interest of Doe, 79 Hawai i 265, 900 P.2d 1332 (App.1995), we address first the
applicability of HRE Rule 408 in criminal cases before considering its applicability in the instant case.

"The federal rule, which mirrors the language of HRE Rule 408, was developed to ... encourage the
resolution of problems through negotiation and settlement without the fear of having statements made
during the negotiation process haunt a future legal proceeding.”..”The public policy of our appellate courts
 favors the resolution of controversies through compromise or settlement rather than by litigation. “ To
allow admissions or evidence of settlement negotiations into evidence “would hamper the negotiation and
settlement process of our legal system and is therefore against the public policy of this jurisdiction.” Id. at
171, 931 P.2d at 613.

a. HRE Rule 408 applies in criminal proceedings.

Some courts have held that Rule 408 applies only in civil proceedings because “[t]he reference to a claim
which was disputed as to either validity or amount does not easily embrace an attempt to bargain over
criminal charges.”...However, in addition to the use of the terms “validity” and “claim,” the rule specifically
states in its final sentence: “This rule also does not require exclusion when the evidence is offered ... [to
prove] an effort to obstruct a criminal investigation or prosecution.” HRE Rule 408. To construe the rule
as applying only in civil proceedings would render the final sentence of the rule unnecessary...Accordingly,
in construing HRE Rule 408, we must give full force and effect to every sentence in the statute, including the
final sentence.

Courts have also held that the policy underlying Rule 408 does not apply to criminal prosecutions because
the stakes are higher...However, we believe that the potential impact of evidence regarding a civil settlement
agreement is even more profound in criminal proceedings than it is in civil proceedings. “It does not tax the
imagination to envision the juror who retires to deliberate with the notion that[,] if the Defendants had done
nothing wrong, they would not have paid the money back.”

The Intermediate Court of Appeals (ICA) in In the of Doe, 79 Hawai i 265, 900 P.2d 1332 (App.1995), held
that HRE Rule 408 applies in criminal proceedings...

We agree with the ICA that evidence of compromise of civil liability should be excluded in related criminal
prosecutions to avoid the potential inference of criminal guilt because such a policy promotes settlement of
disputed civil liability. Furthermore, we believe that the plain language of the rule, which allows evidence of
obstruction of criminal investigation or prosecution, implies the applicability of the rule in criminal
proceedings. Accordingly, we hold that HRE Rule 408 does apply in criminal proceedings.

b. HRE Rule 408 does not exclude offers by the accused to the complainant to avoid prosecution.




Professor John Barkai, U.H. Law School - Evidence                                           Page - 119
[6] Not all evidence of civil settlement is excludable under HRE Rule 408. “[B]efore HRE Rule 408 is applied,
  there must be an actual dispute, preferably some negotiations, and at least an apparent difference of view
between the parties as to the validity or amount of the claim. “ In the Interest of Doe, 79 Hawai i at 277,
900 P.2d at 1344 (quoting 2 McCormick on Evidence 2661 at 194-95 (J. Strong 4th ed.1992)).
Furthermore, evidence of settlements that is offered for a purpose other than to prove liability or the validity
of a claim is not excluded. 408. For example, as noted above, if evidence is offered to prove an obstruction
of a criminal investigation or prosecution, exclusion is not required. Thus, although we agree with the ICA's
holding in In the Interest of Doe that HRE Rule 408 applies in criminal proceedings, the rule does not exclude
evidence in every circumstance. Specifically, we do not believe that the policy of protecting compromise
offers in civil cases is served by protecting an accused who is attempting to “settle” or “compromise”
                                                     FN5
criminal charges by “paying off” the complainant.        Fed.R.Evid. Rule 408, Advisory Committee's Note
(examining the limitations within the final sentence of the identically worded federal rule and noting that “an
effort to buy off a ... prosecuting witness in a criminal case is not within the policy of the rule of exclusion”)
(citing McCormick [on Evidence ] 251, p. 542). Rather, when an accused offers money to a complainant
in exchange for “dropping the charges,” the public policy against compounding crimes prevails.

FN5. In no way do we question the policy of compromise and negotiations that take place between a
prosecuting attorney and an accused, whereby the accused pleads guilty in return for leniency. The
legitimacy of plea bargains is well-established and is protected under HRE Rule 410.

The following cases are instructive:

In Peed, the defendant sought indemnity from the United States Postal Service for “lost” dolls that she had
in fact received. 714 F.2d at 9-10. Confronted with a criminal prosecution for mail fraud and a plea from the
sender of the dolls, the defendant promised to return the dolls to the sender if the sender promised to drop
the charges. The court, refusing to characterize the defendant's statement as an offer to compromise a civil
claim, stated:
          There was no civil suit pending at the time this conversation took place. [The defendant's] jargon
          (“drop the charges”) implies concern over criminal prosecution. These were not negotiations
          aimed at settling a civil claim, negotiations that the policy behind Rule 408 seeks to encourage. Nor
          were [the defendant's] statements followed up by any attempt on [the defendant's] part to obtain
          money or resources for achieving a settlement with [the complainant].

Peed, 714 F.2d at 9-10. Thus, the court determined that the defendant's statements were an attempt to
avoid criminal prosecution, and, accordingly, the evidence was held admissible. Id.

In New Jersey v. DeAngelis, 281 N.J.Super. 256, 657 A.2d 447 (App.Div.1995), a restaurant manager stole
money from the restaurant in which he worked. When the director of operations for the restaurant
discovered the theft, he made a “deal” with the manager that he either pay back the money or be prosecuted.
 The deal fell through when the manager went to the police and told them he was coerced into admitting
theft. As a result, the manager was prosecuted and evidence of the “deal” was ruled admissible. The New
Jersey Superior Court held that the “[manager's] promise to repay the missing funds was in reality an
attempt to purchase the victim's silence” and, as such, was “more in the nature of an obstruction of justice.”
 DeAngelis, 657 A.2d at 450.

By contrast, in Ecklund v. United States, 159 F.2d 81 (6th Cir.1947), the defendant, an owner of a car
dealership, was criminally prosecuted for violations of the Emergency Price Control Act of 1942. The pivotal
issue in the case was whether the defendant had “guilty knowledge” that his salesman was selling an
automobile above the lawful ceiling price. Prior to the criminal trial, the defendant settled potential civil
liability with the customer to whom his salesman had sold a vehicle. The assistant district attorney sought
to admit evidence of the settlement as proof of defendant's guilty knowledge. The United States Court of
Appeals for the Sixth Circuit concluded that evidence of the settlement had no real probative value as to
whether the defendant had wilfully violated laws and regulations governing sales prices. Furthermore, there
was no proof that he had attempted to avoid criminal prosecution by settling the potential civil claim against
him. Thus, the court in Ecklund held that the defendant's offer to settle the civil claims was not admissible
in his criminal trial. Ecklund, 159 F.2d at 84-85.


Professor John Barkai, U.H. Law School - Evidence                                           Page - 120
Based on the foregoing, we hold that, in a criminal trial, evidence of an accused's offer to pay value to a
complainant in an attempt to avoid prosecution is not excludable under HRE 408. In determining whether
an accused is “attempting to avoid prosecution,” the court should examine the defendant's statements and
the surrounding circumstances to ascertain the defendant's objective...Factors relevant to the court's
determination include, but are not limited to, whether a civil suit was pending at the time statements were
made, whether any reference to criminal prosecution was made, and whether the admission of liability in the
civil suit has any probative value as to criminal liability.

2. Application of HRE 408 in the Instant Case

Turning to the instant case, if the February 7, 1997 Meeting constituted civil settlement negotiations, then, in
accordance with the above, any evidence thereof would be excluded under HRE Rule 408, unless the
evidence constituted an attempt by the accused to avoid criminal prosecution. Defendant argues that the
meeting constituted settlement negotiations and was, therefore, inadmissible under Rule 408. The circuit
court did not inquire or determine whether the Aunt's or Cousin's statements were made in an effort to
compromise potential civil liability. However, based on the prosecution's offer of proof at the motion in
limine hearing, the circuit court characterized the statements made at the meeting as an offer of money in
                                                                                                         FN6
exchange for dropping criminal charges that Defendant then adopted by allegedly nodding his head.            If
the statements made constituted an offer of payment in an attempt to avoid prosecution, then the evidence
thereof would not be excluded under HRE Rule 408. However, because Defendant in this case did not
make a direct offer but remained silent for most of the meeting and then “shook his head,” allegedly in
agreement when the offer was being made to Father, we must examine whether Defendant's nonverbal
conduct may have constituted an adoption of his aunt's or cousin's statements under HRE Rule 803.

FN6. As more fully discussed infra, the judge and the prosecution refer to Defendant's conduct as “nodding”;
 however, the evidence regarding Defendant's conduct reflects only that Defendant was “shaking his
head.”...

IV. CONCLUSION

Based on the foregoing, we vacate the circuit court's judgment and sentence and remand this case for a new
trial.

Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
R408 Compromise and Offers to Compromise

 When the facts fall short of the filing of a lawsuit or the threat of litigation, courts will have to determine on
 a case-by-case basis whether the offer was made in the context of an existing dispute.
        Example—No existing dispute. In Cassino v. Reichhold Chem., Inc., 817 F.2d 1338 (9th
        Cir.1987), the trial court admitted a settlement agreement and release that the defendant
        employer asked the plaintiff to sign when the plaintiff was fired. The court of appeals affirmed.
        Rule 408 did not bar admissibility because the plaintiff had not yet asserted any claim when
        the defendant presented the settlement agreement to him.
         Example—Existing dispute. In Mundy v. Household Finance Corp., 885 F.2d 542 (9th
         Cir.1989), the trial court excluded evidence that defendant employer offered plaintiff a
         payment of money for "outplacement services" in exchange for a release. The court of appeals
         affirmed. The offer was made three weeks after plaintiff was fired, plaintiff had already received
         severance pay and other benefits, and although plaintiff had not yet filed a claim, he had retained
         legal counsel.
     Ordinary business negotiations are generally not protected. E.g., Deere & Co. v. International
 Harvester Co., 710 F.2d 1551, 1557 (Fed.Cir.1983) (offer to license uncontested patent not protected).

 Must be an offer to compromise. Rule 408 protects statements only if they constitute or are made in
 pursuit of a compromise. Rodriguez-Garcia v. Municipality of Caguas, 495 F.3d 1, 12 (1st Cir. 2007) (letter
 that would have granted plaintiff reinstatement without condition not protected); Wall Data Inc. v. Los

Professor John Barkai, U.H. Law School - Evidence                                            Page - 121
 Angeles County Sheriffs Dept., 447 F.3d 769, 783-84 (9th Cir. 2006) (memo prepared before settle-
 ment discussions began not protected); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 909 (3d Cir.1997).
 The context and character of the statement or offer must evince some element of concession. Pierce
 v. F.R. Tripler & Co., 955 F.2d 820, 827 (2d Cir.1992) (factors considered include timing of offer,
 existence of disputed claim, conditional nature of offer, and presence of counsel).

Admissible for other purposes
• As an indicator of the measure of a litigant's success for purposes of determining the appropriate amount
of attorney's fees. Lohman v. Duryea Borough, 574 F.3d 163, 167-68 (3d Cir. 2009).
• Where the statement made in the settlement negotiation constitutes the wrongful conduct that is the basis
of the claim. Starter Corp. v. Converse, Inc., 170 F.3d 286, 292-94 (2d Cir.1999); Uforma/Shelby Business
Forms, Inc. v. N.L.R.B., 111 F.3d 1284, 1293-94 (6th Cir.1997). Cf. PRL USA Holdings, Inc. v. United States
Polo Ass'n, Inc., 520 F.3d 109, 112-16 (2d Cir. 2008) (holding admissible that plaintiff consented, during
settlement discussions regarding various marks, to defendant's use of double horsemen mark where
offered to prove estoppel-by-acquiescence defense to trademark infringement claim).

Use as prior inconsistent statement to impeach. Rule 408 was amended in 2006 to provide that
compromise evidence may not be used for impeachment purposes either as a prior inconsistent statement
or to establish a contradiction. The amendment thus resolves a division among the courts. Compare, e.g.,
Cochenour v. Cameron Savings and Loan, F.A., 160 F.3d 1187, 1190 (8th Cir.1998) (statement in letter
written by plaintiff, which included settlement demand, that she planned to retire at fifty held admissible to
rebut her testimony that she had no plans to retire); with EEOC v. Gear Petroleum, Inc., 948 F.2d 1542,
1545-46 (10th Cir.1991) (excluding settlement letter written by defense counsel that stated age was factor in
employee's discharge, offered to impeach deposition testimony of defendant's executives that age was not
a factor).
Applicability in criminal cases. Prior to the 2006 amendment to Rule 408, courts disagreed ... as to
whether Rule 408 precludes the admission in a criminal case of evidence that an accused settled or
attempted to settle a related civil claim. The amendment struck a compromise. Rule 408 does not bar the
introduction in a criminal case of statements or conduct during compromise negotiations regarding a civil
claim made by a government regulatory, investigative, or enforcement agency. The amendment thus
draws two distinctions. First, it distinguishes between settlement discussions between private parties
and those involving a government regulatory, investigative, or enforcement agency. Conduct and
statements made in settlement discussions between private parties are ordinarily protected from later use
in criminal cases. Second, when addressing compromise negotiations involving a government regulatory,
investigative, or enforcement agency, the rule distinguishes between statements and conduct (such as
a direct admission of fault) and an offer or acceptance of a compromise offer. Only the conduct or
statements may ordinarily be used in a criminal case.




Professor John Barkai, U.H. Law School - Evidence                                        Page - 122
                  Relevancy 407 - 411 Problems
1. P slips and falls on the top steps of an apartment's stairway. Two days after the accident, the
landlord replaces the rotted, now broken stairs. Is evidence of the repair admissible at P's trial?
2. Same as above. The landlord defends by saying that she is not the owner of the building. Is
evidence of the repair admissible?
3. Same as above. Two days before the accident the landlord replaced the bottom two stairs. Is
evidence of the repair admissible?
4. P sues a small shop owner for a slip and fall on a sidewalk in front of the shop. The law provides
that the shop owner is liable for upkeep on the sidewalk. Can P introduce the fact that two days
after the accident, workers from the City repaired the sidewalk?
5. P is hit by ACME's truck. Two days before the accident, new brakes were ordered for the truck.
Two2 days after the accident, the new brakes were installed on the truck. The driver was fired one
week after the accident. Is testimony about the brakes or the firing admissible?
6. After a lawn-mower got away from the handler and injured a bystander, the manufacture
changed the mower so that it now has a "deadman's switch," which shuts off the motor if the
operator's hands leave the handlebars. The injured bystander sued the lawn-mover manufacturer
claiming the mower had a design defect because it did not have a "deadman's" switch. Is testimony
about the new "deadman's" switch admissible?
7. In above lawn-mower case, could Plaintiff introduce evidence that another manufacturer had
installed a "deadman's" switch on their mower?"
8. Is testimony about adding a "deadman's" switch admissible if an engineer from the mower
company testified at trial that the mower was the "best product on the market with state-of-the-art
equipment."
After an auto accident, are the following statements of Dan, the defendant driver, admissible
against Dan by the plaintiff?
9. Dan: "I'm sorry. I was slow hitting the brakes."
10. Dan: "I am insured for this kind of thing."
11. Dan: "Don't worry about the medical expenses. I'll pay them."
12. P and D are involved in an accident. Immediately after the accident, D goes to P and says, "My
brakes were bad, will you settle it all for $500." P says: "No way!"
        At trial, can P testify that D said "My brakes are bad"?
13. Can D be called by P as a W at trial and asked "Weren't your brakes bad?"
14. If D goes to the hospital and says "My brakes were bad, let me pay your $2,000 hospital bill,"
is the statement admissible?
15. Assume that P2 was also injured in the accident and settled her claim against D before trial. If
P2 testifies for D at trial, is the settlement with D admissible?
16. In plea discussion with the Prosecutor, D says, "I hit that bum V but I'm not going to plead
guilty unless you offer me a better deal than that." There is no better deal offered, so D goes to trial.
Is D's statement to the prosecutor admissible?
17. D is arrested and given Miranda warnings. D talks with the arresting police officer and says, "I
hit that bum V but I'm not going to plead guilty unless you help me get a reduced sentence." There
is no reduced sentence, so D goes to trial. Is D's statement to the officer admissible?

Professor John Barkai, U.H. Law School - Evidence                                    Page - 123
18. D pleads guilty in court and during the plea D says that "I hit V." Later, D is allowed to
withdraw his plea and go to trial. Can the prosecutor use D's in-court statement that he hit B
against him at trial?
19. D pleads guilty to assault. V later sues D in civil suit for damages. Is D's plea admissible in the
civil suit?




Professor John Barkai, U.H. Law School - Evidence                                  Page - 124
                               OPINIONS
            (LAY & EXPERT)
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
    R701
     Illustrative cases. Numerous cases exist in which federal courts have permitted lay witnesses to offer
their opinions. Among the range of opinions admitted are:
      An opinion that a truck driver was "in total control" when his truck was struck. Robinson v. Bump, 894 F.2d 758,
762-63 (5th Cir.1990), cert. denied, 498 U.S. 823, 111 S.Ct. 73, 112 L.Ed.2d 46 (1990).
     An opinion that a developer never intended to carry out promises made to purchasers. Winant v. Bostic,
5 F.3d 767, 772-73 (4th Cir.1993).
      An opinion regarding the amount of lost profits suffered by the witness's business. Lightning Lube, Inc.
v. Witco Corp., 4 F.3d 1153, 1175-76 (3d Cir.1993). But cf. Donlin v. Philips Lighting North America Corp., 581 F.3d
73, 80-83 (3d Cir. 2009) (emphasizing that where witness testifies as lay witness as to particularized knowledge,
witness must base testimony on personal knowledge).
      An opinion that the person shown in a videotape or bank surveillance photo was the defendant. United States
v. Contreras, 536 F.3d 1167, 1170-71 (10th Cir. 2008) (citing cases), cert. denied 129 S.Ct. 942, 173 L.Ed.2d 142
(2009); United States v. Kornegay, 410 F.3d 89, 94-95 (1st Cir. 2005). But see United States v. Dixon,
413 F.3d 540 (6th Cir. 2005) (excluding such testimony).
       An opinion concerning another person's state of mind or knowledge. United States v. Anderskow,
88 F.3d 245, 250-51 (3d Cir.1996), cert. denied, 519 U.S. 1042, 117 S.Ct. 613, 136 L.Ed.2d 537 (1996). But cf.
United States v. Wantuch, 525 F.3d 505, 512-14 (7th Cir. 2008) (although "lay opinion testimony regarding
mental states is admissible, the court holds inadmissible testimony that defendant knew his actions were
illegal).
       Testimony about drug dealing and drug use. United States v. York, 572 F.3d 415, 423 (7th Cir.
2009) (experts may "translate drug jargon and code words that might seem entirely innocuous to an
untrained jury"); United States v. Watson, 260 F.3d 301, 307 (3d Cir.2001) ("repeatedly found" to be
admissible); United States v. Washington, 44 F.3d 1271, 1282-83 (5th Cir.1995) (citing cases), cert. denied,
514 U.S. 1132, 115 S.Ct. 2011, 131 L.Ed.2d 1010 (1995).
       Testimony providing background information about radical Islam and jihad. United States v.
    Benkahla, 530 F.3d 300, 308-09 (4th Cir. 2008), cert. denied, — U.S. 129 S.Ct. 950, 173 L.Ed.2d 146
    (2009).




Professor John Barkai, U.H. Law School - Evidence                                                Page - 125
                                                                        EXPERT OPINIONS 1
                                      HAWAII                                                                                FEDERAL
 RULE 701 OPINION TESTIMONY BY LAY WITNESSES.                                             RULE 701. OPINION TESTIMONY BY LAY WITNESSES
     If the witness is not testifying as an expert, the witness' testimony in the form        If the witness is not testifying as an expert, the witness' testimony in the
 of opinions or inferences is limited to those opinions or inferences which are (1)       form of opinions or inferences is limited to those opinions or inferences
 rationally based on the perception of the witness, and (2) helpful to a clear            which are (a) rationally based on the perception of the witness, (b) helpful to
 understanding of the witness' testimony or the determination of a fact in issue.         a clear understanding of the witness' testimony or the determination of a fact
                                                                                          in issue, and (c) not based on scientific, technical, or other specialized
                                                                                          knowledge within the scope of Rule 702.
                                                                                           [Underlined language will go into effect Dec. 1, 2000.]
 RULE 702 TESTIMONY BY EXPERTS.
     If scientific, technical, or other specialized knowledge will assist the trier of    RULE 702. TESTIMONY BY EXPERTS
 fact to understand the evidence or to determine a fact in issue, a witness qualified         If scientific, technical, or other specialized knowledge will assist the trier
 as an expert by knowledge, skill, experience, training, or education may testify         of fact to understand the evidence or to determine a fact in issue, a witness
 thereto in the form of an opinion or otherwise. In determining the issue of              qualified as an expert by knowledge, skill, experience, training, or education,
 assistance to the trier of fact, the court may consider the trustworthiness and          may testify thereto in the form of an opinion or otherwise, if (1) the testimony
 validity of the scientific technique or mode of analysis employed by the proffered       is based upon sufficient facts or data, (2) the testimony is the product of
 expert.                                                                                  reliable principles and methods, and (3) the witness has applied the principles
 [this sentence was added to the Hawaii rule in 1992 after Montalbo]                      and methods reliably to the facts of the case.
                                                                                            [Underlined language will go into effect Dec. 1, 2000.]
 RULE 702.1 CROSS-EXAMINATION OF EXPERTS.
 RULE 703 BASES OF OPINION TESTIMONY BY EXPERTS.                                          RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS
     The facts or data in the particular case upon which an expert bases an opinion           The facts or data in the particular case upon which an expert bases an
 or inference may be those perceived by or made known to the expert at or before          opinion or inference may be those perceived by or made known to the expert
 the hearing. If of a type reasonably relied upon by experts in the particular field in   at or before the hearing. If of a type reasonably relied upon by experts in the
 forming opinions or inferences upon the subject, the facts or data need not be           particular field in forming opinions or inferences upon the subject, the facts
 admissible in evidence. The court may, however, disallow testimony in the form           or data need not be admissible in evidence in order for the opinion or
 of an opinion or inference if the underlying facts or data indicate lack of              inference to be admitted. Facts or data that are otherwise inadmissible shall
 trustworthiness.                                                                         not be disclosed to the jury by the proponent of the opinion or inference
                                                                                          unless the court determines that their probative value in assisting the jury to
 [this sentence was added to the language from the federal rule "to clarify the court'    evaluate the expert's opinion substantially outweighs their prejudicial effect.
 discretion to exclude untrustworthy opinions" - says the commentary]                      [Underlined language will go into effect Dec. 1, 2000.]




Professor John Barkai, U.H. Law School - Evidence                                         Page - 126
                                                                EXPERT OPINIONS 2
                                  HAWAII                                                                       FEDERAL


 RULE 704 OPINION ON ULTIMATE ISSUE.                                             RULE 704. OPINION ON ULTIMATE ISSUE
        Testimony in the form of an opinion or inference otherwise                       (a) [same text as Hawaii's total rule]
 admissible is not objectionable because it embraces an ultimate issue to be             (b) No expert witness testifying with respect to the mental state
 decided by the trier of fact.                                                   or condition of a defendant in a criminal case may state an opinion or
                                                                                 inference as to whether the defendant did or did not have the mental
                                                                                 state or condition constituting an element of the crime charged or of a
                                                                                 defense thereto. Such ultimate issues are matters for the trier of fact
                                                                                 alone.

                                                                                 [subsection b is found only in the federal rule]



 RULE 705        DISCLOSURE OF FACTS OR DATA UNDERLYING                          RULE 705.       DISCLOSURE OF FACTS OR DATA
                 EXPERT OPINION.                                                                 UNDERLYING EXPERT OPINION
         The expert may testify in terms of opinion or inference and give the            The expert may testify in terms of opinion or inference and give
 expert's reasons therefor without disclosing the underlying facts or data IF    reasons therefor without first testifying to the underlying facts or data,
 THE UNDERLYING FACTS OR DATA HAVE BEEN DISCLOSED IN                             unless the court requires otherwise. The expert may in any event be
 DISCOVERY PROCEEDINGS. The expert may in any event be required                  required to disclose the underlying facts or data on cross-examination.
 to disclose the underlying facts or data on cross-examination.

 RULE 706 COURT-APPOINTED EXPERTS.                                               RULE 706. COURT APPOINTED EXPERTS
         In the exercise of its discretion, the court may authorize disclosure        (a) Appointment. ...
 to the jury of the fact that a particular expert witness was appointed by the        (b) Compensation. ...
 court.                                                                               (c) Disclosure of appointment. [same as Hawaii]
                                                                                      (d) Parties' experts of own selection. ...




Professor John Barkai, U.H. Law School - Evidence                                Page - 127
TAKAYAMA v. KAISER FOUNDATION HOSPITAL,
82 Hawai'i 486, 923 P.2d 903 (1996)
     USED IN EVIDENCE CLASS AS AN EXAMPLE OF PRESENTING EXPERT
     TESTIMONY
      [Patient sued neurosurgeon for medical malpractice, alleging that patient's quadriparetic condition resulted from
defendant's negligence in utilizing sublaminar wiring staging procedure when patient's spinal canal was severely stenosed.
      Affirmed.]
                                                            ***
      Takayama's principal theory of medical negligence was that Dr. Robinson breached the applicable standard of care
by utilizing a sublaminar wiring staging procedure on Takayama when Takayama's spinal canal was severely stenosed.
As part of its case-in-chief at trial, Takayama called Henry Bohlman, M.D., a prominent orthopedic surgeon, as an expert
witness. Dr. Bohlman opined that, because Takayama's OPLL [Ossified Posterior Longitudinal Ligament] condition was
so severe and her spinal canal so stenosed, there was no room to insert sublaminar wiring into Takayama's spinal canal.
Dr. Bohlman testified:

Q.   [By Takayama's counsel] Then do you have an opinion within--to a degree of reasonable medical probability as to
     whether or not the insertion of sublaminal wires by Dr. Robinson in the first surgery on August 11, 1987 complied
     with the standard of care?
A.   Yes.

Q.   And what is your opinion?
A.   I think that was absolutely below the standard of care based on what was obvious on the studies before the surgery....

Q.   With respect to Dr. Robinson's decision to do a posterior fusion as the first part of a two stage procedure, do you have
     an opinion to a degree of reasonable medical probability as to whether that first posterior fusion was a reasonable and
     prudent procedure that complied with the standard of care?
A.   If there was a different type of posterior fusion done, I wouldn't have a great argument against that, if he felt that
     tremendous instability was going to occur. It's the technique that was used to do it. I don't think it was necessary.

Q.   And why not, Doctor?
A.   Well, I think [Takayama] could have been decompressed from the front with a less extensive procedure that did not
     go through the mouth and do all of that, and just do a standard anterior decompression and fusion without running
     any great risk to her spinal cord.

      Consistent with its pretrial position ... Kaiser's principal defense at trial was that Dr. Robinson's treatment of
Takayama did not fall below the requisite standard of care, specifically because Dr. Robinson had placed the sublaminar
wiring "far laterally" on each of Takayama's three problem vertebrae, and, therefore, the sublaminar wires did not intrude
into the spinal canal. Anticipating this defense, however, Dr. Bohlman testified during Takayama' case-in-chief that, based
on his review of image no. 16 of the post-operative CAT scan films of Takayama's spine taken in 1988 (Exhibit 4L)--after
all of the procedures performed on her were completed--Dr. Robinson's testimony that he had placed the laminotomies
"far laterally" was also suspect. Dr. Bohlman testified:

Q.   [By Takayama's counsel] Do you have an opinion to a degree of reasonable medical probability as to whether Dr.
     Robinson's version of where he made the laminotomy notches is correct?
A.   Yes, I do.

Q.   And what is your opinion?
A.   I don't think they were this far laterally or this far out to the side.

Q.   And on what do you base that opinion, Dr. Bohlman?
A.   I think on the post operative CT scan it looks like the notches are much closer to the spinous process. I mean, these
     notches are way off to the side and ...




Professor John Barkai, U.H. Law School - Evidence                                                    Page - 128
BACHRAN V. MORISHIGE
52 Haw. 61, 469 P.2d 808 (1970)

                                                              PRESENTING EXPERT TESTIMONY


     On March 30, 1964, while plaintiff Lorraine Bachran and her five children were in an
automobile, which was stopped in a line of traffic, it was struck by an automobile driven by Kaoru
Morishige. Suit was instituted by Lorraine Bachran for herself and her five minor children as
plaintiffs against defendant Kaoru Morishige. The defendant admitted liability and the case was
tried by a jury on the issue of damages.

     ... there is no necessity that an expert witness' testimony be limited or restricted by labels such
as 'certainty,' 'reasonable medical certainty,' 'probability,' 'possibility,' etc. In Dzurik v. Tamura, 44
Haw. 327, 359 P.2d 164 (1960), we said at page 330; 359 P.2d at 165-166: 'When causation of the
injury is a medical issue, as it is here, '(the) matter does not turn on the use of a particular form of
words by the physicians in giving their testimony,' since it is for the trier of facts, not the medical
witnesses, to make a legal determination of the question of causation. Hence, the failure of a
medical witness to testify positively as to what was the cause of the injury, or his statement that the
accident 'might' be or 'probably' was the cause of the injury, is merely a circumstance to be taken
into consideration by the trier of facts.'




Professor John Barkai, U.H. Law School - Evidence                                    Page - 129
TABIEROS v. CLARK, 85 Hawai'i 336, 944 P.2d 1279 (1997)                                     HRE 703, 705

These appeals arise out of a lawsuit alleging, inter alia, strict product liability and negligent design following
injuries sustained by Tabieros when he was struck by a large piece of mobile equipment, a straddle carrier
FN1
    manufactured by Clark, while he worked at the Sand Island dockyard in the City and County of Honolulu.

FN1. A straddle carrier is a large vehicle weighing approximately 36,000 pounds unloaded. The straddle
carrier involved in this case was designed to lift, move, and stack containers of up to thirty-six feet in length.

Clark raises seventeen points of error on appeal, each of which falls into one of four general categories. In
particular, Clark contends that the trial court erred:...(3) by allowing, restricting, or excluding expert
testimony...

On April 27, 1988, while working on the loading docks at Pier 52 in the City and County of Honolulu, Tabieros,
an employee of Matson Terminals, Inc. (Terminals), was sitting in a jitney parked on the dockside apron of
the Sand Island container yard. He was seriously injured when a Series 510 straddle carrier struck his
vehicle, crushing both of his legs...

4. Report of the National Ports Council

A documentary report entitled “Equipment Evaluation: The Operation of Clark Van Carriers” (hereinafter,
“the NPCR”) was published in February 1973 by an organization-based in London, England-denominated
the “National Ports Council.” The NPCR purported to be a study, conducted in the ports of Great Britain, of
various operational, engineering, structural, and ergonomic characteristics (including driver visibility) of
Clark's Series 512, 520, and 521 straddle carriers, the production of which postdated the Series 510 version
at issue in this case and which were larger, taller, and otherwise differently configured than the Series 510.
The plaintiffs attempted to introduce the NPCR as substantive evidence at trial on the basis that it was
relevant to whether the Series 510 had been defectively designed and Clark had been placed on notice
thereof. Clark sought to exclude any and all use of the NPCR at trial, contending that the report constituted
inadmissible hearsay, did not involve the Series 510 straddle carrier, was not relevant to the issue of notice,
and was “untrustworthy” on its face. The circuit court, in limine, disallowed the NPCR as substantive
evidence pursuant to HRE 403, but ruled that, “[t]o the extent that a proper foundation is laid by the
proponent, experts may refer to the report in their testimony.”...

a. inadmissibility of the NPCR as substantive evidence

We hold, for two reasons, that the circuit court did not err in excluding the NPCR...

Over Clark's repeated objections, the circuit court did, however, allow reference to the contents of the NPCR
by the plaintiffs' expert witness, Howard Josephs...

HRE 705, however, is silent on its face regarding the question-which the appellate courts of this state have
apparently never addressed-whether otherwise inadmissible evidence, on which an expert is relying in the
formulation of an opinion, may be disclosed in the first instance on direct examination...

Thus, it is not surprising that the case law of other jurisdictions is in general agreement that an expert may
discuss the underlying facts and data upon which he or she is relying on direct examination, even though
hearsay may be involved-at least for the limited purpose of disclosing the basis of his or her opinion...




Professor John Barkai, U.H. Law School - Evidence                                           Page - 130
However, in our judgment[,] the logic underlying Rule 703 ... compels the conclusion that an expert should
be allowed to reveal the contents of materials upon which he reasonably relies in order to explain the basis
of his opinion.”)...

In our view, the reasoning of the foregoing authority is cogent and persuasive. Accordingly, we hold that
HRE 703 and 705 do not foreclose an expert witness from revealing, in the course of direct examination, the
contents of the materials upon which he or she has reasonably relied-hearsay though they may be-in order
to explain the basis of his or her opinion, provided, of course, that (1) the expert has actually relied on the
material as a basis of the opinion, (2) the materials are “of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject,” and (3) the materials do not otherwise
“indicate lack of trustworthiness.”

In the present case, however, we do not believe that Josephs's testimony satisfied the foregoing
preconditions to disclosure of the contents of the NPCR within the context of explaining, on direct
examination, the bases of his expert opinions. First, the record indicates that, in all likelihood, Josephs did
not actually rely on the NPCR as a factual basis of his opinions. Prior to being offered as an expert in safety
engineering, human factors, the design of the Series 510 straddle carrier, remedial measures, and related
matters, the plaintiffs' counsel elicited an enumeration from Josephs of the factual bases of his opinions
regarding “what the cause of the accident was” and whether remedial steps could have been taken to avoid
it. Although he listed, among other things, (1) an examination of the straddle carrier involved in Tabieros's
accident, (2) the deposition testimony of the eyewitnesses to the accident, (3) the deposition testimony of
Clark's designer of the Series 510 straddle carrier, (4) the deposition testimony of the representative of
Navigation, who promulgated the design specifications for the vehicle, (5) “classification records” relating to
the history of the Series 510, (6) Matson's records regarding the particular straddle carrier at issue, (7)
documents relating to “other straddle carriers,” and (8) applicable safety standards, Josephs made no
allusion to the NPCR. On cross-examination by Clark's counsel, Josephs first testified that he could not
presently recall where he had first obtained the NPCR; once his recollection was refreshed, however, he
acknowledged that he had first received the report from Tabieros's counsel.

Later in his testimony, when Tabieros's counsel inquired whether the NPCR was one of the bases of his
expert opinion, Josephs answered in the affirmative. Nevertheless, he testified immediately thereafter only
that the NPCR was “relevant” to his opinions, that it would be “valuable” and “of interest” to an engineer or
manufacturer designing a straddle carrier, and that it “supported” his opinions. In the latter respect, Josephs
read repeatedly from the NPCR and explicated its data and conclusions without ever indicating in what
manner the reports' contents formed a basis of his opinions or in what way he otherwise relied on it.

Second, even if Josephs actually relied in some way on the NPCR as a factual basis of his opinions, it was
still necessary that the NPCR contain “facts or data ... of a type reasonably relied upon by experts in the
[engineering] field in forming opinions or inferences upon the subject” of the Series 510 straddle carrier in
                                                     FN36
order to satisfy the criteria prescribed in HRE 703.      In our view, the record is grossly deficient in this
regard.

FN36. It is noteworthy that, although Josephs responded, “Yes,” when asked if the NPCR constituted one
of the bases of his opinion, he never testified that the NPCR contained the type of material upon which
engineers would reasonably rely.




Professor John Barkai, U.H. Law School - Evidence                                         Page - 131
On cross-examination by Clark's counsel, Josephs acknowledged that he had never studied or inspected
the Series 512, 520, or 521 straddle carriers, which were the sole subjects of the NPCR. He did not know the
relative heights of the various models as compared to the straddle carrier involved in Tabieros's accident.
He was unaware of the means by which the data appearing in the NPCR was collected, the credentials or
qualifications of whoever was doing the collecting, or the number or identity of the NPCR's authors. In fact,
Josephs indicated that he had essentially accepted on blind faith that data collected by a
“quasi-governmental agency” would be reliable. Such uncritical reliance is hardly a hallmark of the scientific
method.

It is patently obvious from a review of the trial transcript that Josephs's testimony regarding the NPCR
served primarily as a conduit to publish its findings and conclusions, which had already been ruled
inadmissible as substantive evidence pursuant to HRE 403, to the jury and to bolster the credibility of
Josephs's opinions. Many of the questions posed to Josephs regarding the NPCR by the plaintiffs' counsel,
as well as his responses to them, had little or nothing to do with Josephs's area of expertise. For example,
Josephs was questioned about (1) the cost of obtaining a copy of the NPCR and its availability to others, in
an attempt to establish that Clark had, in fact, received notice of its existence and contents, (2) the NPCR's
length and governmental authorship, (3) Clark's “role in providing resources for the report,” and (4)
Josephs's beliefs as to whether Clark had destroyed documents.

Moreover, the plaintiffs' counsel prominently displayed the NPCR's principal findings and salient contents to
the jury through blow-up exhibits mounted on eight story boards. In this connection, the plaintiffs' counsel
expressed his belief that the portions of the NPCR that Josephs read to the jury could be used for any
purpose. That the circuit court shared his view is reflected by the following exchange:
[Clark's counsel]: I object to publication of the report.
THE COURT: Any response?
[Plaintiffs' counsel]: The response is that the publication of other material which the experts have relied on,
but is not in evidence, has been allowed and these are-
THE COURT: I will overrule and permit the demonstrative proof.
[Clark's counsel]: This is improper use of a treatis [sic] in that Mr. Josephs is actually testifying to what the
material contains. This goes far beyond what an expert is able to do with respect to references.
THE COURT: Under 70-
[Plaintiffs' counsel]: 703, a report replied [sic: actually “relied”] upon by an expert can be used in any fashion.
THE COURT: I will overrule the objection and confirm my ruling.

light of our holding regarding the parameters of HRE 703 and 705, it is apparent that the circuit court's broad
view of the permissible uses to which inadmissible evidence may be put by an expert witness was erroneous.
While it is perfectly proper for experts to discuss the data upon which they have actually and reasonably
relied in forming their opinions, a trial court does not have the unfettered discretion to allow testimony
designed fully to disclose the contents of all inadmissible material. As we have indicated, the reason,
pursuant to HRE 703 and 705, for allowing an expert witness to reveal the contents of otherwise
inadmissible evidence during direct examination is not to admit the evidence for its substantive, probative
value, but rather to permit the trier of fact to understand the basis of the expert's opinion in order to assess
the weight and effect to be accorded that opinion. The admissibility of such testimony, however, is limited by
the mandate of HRE 703 that the “underlying facts or data” do not otherwise “indicate lack of
trustworthiness.” Thus, expert testimony revealing inadmissible material for the purpose of either (1)
injecting untrustworthy evidence into the trial in order to lend greater authority to the testifying expert's
opinion or (2) indirectly placing before the jury the purportedly authoritative conclusions of others on the
same subject-not otherwise admissible on some independent ground-is improper.




Professor John Barkai, U.H. Law School - Evidence                                            Page - 132
The need for oversight by the trial court of expert testimony revealing otherwise inadmissible material is
particularly acute when the “underlying facts or data indicate lack of trustworthiness,” HRE 703, or where the
probative value of the testimony “is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury,” HRE 403. In this case, the NPCR was based on multiple hearsay, was
of undetermined authorship, addressed hundreds of accidents that were substantially dissimilar to
Tabieros's, and contained warnings within its four corners that flagged the questionable reliability of much
of its data. Moreover, prior to Josephs's testimony, the circuit court had already disallowed the NPCR as
substantive evidence, not only pursuant to Clark's motion in limine, but also in accordance with HRE 403.

Accordingly, because (1) it appears that Josephs did not, in fact, rely on the NPCR in forming his opinions,
(2) even if Josephs did so rely, the record establishes that such reliance would have been scientifically
unreasonable, and (3) the circuit court had already ruled as a matter of law that the NPCR was less
probative than prejudicial, we hold that the circuit court abused its discretion when it permitted Josephs's
testimony regarding the NPCR. Moreover, even had Josephs reasonably relied on it, we hold that the circuit
court was obligated to exercise appropriate restrictive supervision over his testimony, so as to allow only that
necessary to explain to the jury the manner in which the NPCR formed a part of the basis of his expert
opinion.

IV. CONCLUSION

Based on the foregoing analysis, we affirm the circuit court's judgment in Clark's favor and against Wilson,
vacate the judgment in Tabieros's favor and against Clark, and remand for a new trial.




Professor John Barkai, U.H. Law School - Evidence                                         Page - 133
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
R703
Opinion based on facts not in evidence. Rule 703 provides that expert opinions may be based on
facts or data not admissible in evidence if they are of a type form reasonably relied upon by experts in the
witness's field in drawing conclusions or inferences upon the subject. The rule goes beyond eliminating
the need to introduce otherwise admissible underlying data; expert opinion may now be predicated solely on
inadmissible evidence such as hearsay.
Example. In Boim v. Holy Land Foundation for Relief and Development, 549 F.3d 685, 702-05 (7th Cir.
2008), cert. denied, U.S. 130 S.Ct. 458, 175 L.Ed.2d 324 (2009), an expert in terrorism was permitted to
base his opinion that the men who shot the plaintiffs' son were Hamas gunmen in large part on
information he obtained from websites of Islamic movements and Islamic terrorist organizations.
Example. In Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 8 -9 (1st Cir.2001),
defendant sought to prove that a fire on a vessel was of incendiary origin. Its expert based his opinion
on his observation of burn patterns, his study of the electrical system, an interview with the vessel's
engineer, and the report of another, now-deceased, expert. The court of appeals held the expert's
opinion was properly admitted.

R703 (b) Scrutiny of specific facts. The trial court must scrutinize the specific facts relied upon by the expert
to ensure that the expert's reliance is reasonable in the particular case. The more an expert relies on
inadmissible facts that the court finds to be untrustworthy, the less likely it is that the reliance is reasonable.
No precise formula exists, however, for determining when an expert's reliance becomes unreasonable.
Example—Admissible. In United States v. Locascio, 6 F.3d 924, 937¬38 (2d Cir.1993), cert. denied, 511
U.S. 1070, 114 S.Ct. 1646, 128 L.Ed.2d 365 (1994), the prosecution presented expert testimony about the
operation, structure, membership, and terminology of organized crime families, some of which was based
on hearsay. The court of appeals upheld the admission of the testimony, noting that law enforcement agents
routinely rely upon such hearsay in the course of their duties.
Example—Inadmissible. In Ricciardi v. Children's Hosp. Med. Center, 811 F.2d 18, 24-25 (1st Cir.1987), an
expert testified that the sole basis for his opinion regarding the cause of an embolus was a note in a hospital
chart. The note was itself inadmissible and the expert testified that he had never seen such a note in a chart,
characterizing it as "bizarre." The court refused to allow the expert to offer an opinion based on that note.

Admissibility of underlying data. The first two sentences of Rule 703 authorize the admission of an expert's
opinion that is based on facts or data that themselves would be inadmissible in evidence. Whether the
otherwise inadmissible facts or data should be disclosed to the jury is a different question. Rule 703 now
provides that the trial judge must balance the probative value of disclosing such facts or data to the jury against
the prejudicial effect of disclosure. Otherwise inadmissible facts or data have probative value to the extent that
they would assist the jury in evaluating the expert's opinion; their prejudicial effect derives from the danger
that the jury will misuse the evidence for substantive purposes. Turner v. Burlington Northern Santa Fe R. Co.,
338 F.3d 1058, 1062 (9th Cir.2003). The trial judge may admit such evidence only when the probative value
substantially outweighs the danger of unfair prejudice. E.g., United States v. Leeson, 453 F.3d 631, 637-38 (4th Cir.
2006), cert. denied, 549 U.S. 1306, 127 S.Ct. 1874, 167 L.Ed.2d 365 (2007). Cf. In re Hanford Nuclear Reservation
Litig., 534 F.3d 986, 1012 (9th Cir. 2008) ("reports of other experts cannot be admitted even as impeachment
evidence unless the testifying expert based his opinion on the hearsay in the examined report or testified directly
from the report"), cert. denied, ____ U.S. 129 S.Ct. 762, 172 L.Ed.2d 754 (2008). For more details, see the
discussion of Rule 705.
      (8) Expert as hearsay conduit. The trial court must insure that an expert witness is truly testifying as an
expert and not merely serving as a conduit through which hearsay is brought before the jury. United States v. Mejia,
545 F.3d 179, 197-99 (2d Cir. 2008) (also noting that such transmission of hearsay under guise of expert opinion
may implicate Confrontation Clause concerns); United States v. Cormier, 468 F.3d 63, 73 (1st Cir. 2006). That
is, an expert must do more than merely relate inadmissible hearsay to the jury. The expert's value as a witness

Professor John Barkai, U.H. Law School - Evidence                                              Page - 134
must derive from his ability to apply his expertise to the facts and draw inferences from them..
         Example—Inadmissible. In Pelster v. Ray, 987 F.2d 514, 525-27 (8th Cir.1993), the plaintiffs
         sought to prove that the defendants fraudulently sold them a car with a rolled-back odometer and
         called a state revenue investigator to testify that hundreds of cars sold by defendants had rolled-back
         odometers. The court of appeals held that the testimony should not have been admitted because
         the witness was merely relating hearsay to the jury and was not presenting conclusions that were
         the product of expertise applied to the facts.
R704
    Opinions about accused's mental state. Rule 704(b) provides that expert opinion testimony concerning
one particular type of ultimate issue is per se inadmissible. An expert testifying as to an accused's mental state or
condition may not offer an opinion as to whether the accused possessed a mental state or condition that consti-
tutes an element of (a) the crime charged or (b) a defense to the crime charged. E.g., United States v. Bennett,
161 F.3d 171, 182-85 (3d Cir.1998), cert. denied, 528 U.S. 819, 120 S.Ct. 61, 145 L.Ed.2d 53 (1999); United
States v. Abou-Kassem, 78 F.3d 161, 166 (5th Cir.1996), cert. denied, 519 U.S. 818, 117 S.Ct. 70, 136 L.Ed.2d 30
(1996). Experts, however, remain free to testify that the accused does or does not suffer from a mental disease or
defect and to describe the characteristics and effects of such a disease or defect. United States v. Samples,
456 F.3d 875, 884 (8th Cir. 2006) (expert may testify to symptoms and qualities of accused's mental illness and
whether illness generally affects ability to understand nature and quality of one's actions, but may not make subjective
comments about whether accused's mental state affected his ability to understand wrongfulness of his actions), cert.
denied, 549 U.S. 1186, 127 S.Ct. 1162, 166 L.Ed.2d 1005 (2007); United States v. Thigpen, 4 F.3d 1573,
1579-80 (11th Cir.1993) (testimony that schizophrenia does not necessarily deprive person of ability to
understand wrongfulness of actions held admissible), cert. denied, 512 U.S. 1238, 114 S.Ct. 2746, 129 L.Ed.2d
865 (1994).

         Example. In United States v. Finley, 301 F.3d 1000, 1015-16 (9th Cir.2002), the court held the
         trial court erred in excluding defendant's psychological expert. His opinion that the defendant had
         an atypical belief system did not constitute an opinion that the defendant did not knowingly commit
         fraud. The trial court properly ruled, however, that the expert could not testify about the
         defendant's specific beliefs concerning the fraudulent nature of the particular financial instruments.
Rule 704(b) applies to expert opinion about any mental state. It is not restricted to testimony concerning insanity.
E.g., United States v. Campos, 217 F.3d 707 (9th Cir.2000) (defendant's knowledge that vehicle contained
drugs), cert. denied, 531 U.S. 952, 121 S.Ct. 357, 148 L.Ed.2d 288 (2000); United States v. Dennison, 937 F.2d 559,
565-66 (10th Cir.1991) (defendant's capacity to form specific intent), cert. denied, 502 U.S. 1037, 112 S.Ct. 886,
116 L.Ed.2d 789 (1992).

R705
   The court may prohibit any mention whatsoever of the otherwise inadmissible material. Mike's Train
House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 409 (6th Cir. 2006).




Professor John Barkai, U.H. Law School - Evidence                                                Page - 135
DAUBERT v. MERRELL DOW PHARMACEUTICALS,
INC., 509 U.S. 579 (1993)          EXPERTS
    [Infants and their guardians ad litem sued pharmaceutical company to recover for limb reduction
birth defects allegedly sustained as result of mothers' use of antinausea drug, Bendectin, during
pregnancy.

    Trial court granted summary judgment for defendant pharmaceutical company, on the basis of an
affidavit of a well-credentialed expert who stated that he had reviewed all the literature on Bendectin
and human birth defects and no study had found Bendectin to be a substance capable of causing
malformations in fetuses. Testimony from eight experts for the plaintiff was rejected as not meeting
the Frye test - "sufficiently established to have general acceptance in the field to which it belongs.'
The court concluded that plaintiff's evidence did not meet this standard. The Supreme Court found
that a more flexible reliability test is permissible.]

    Justice BLACKMUN delivered the opinion of the Court.
In this case we are called upon to determine the standard for admitting expert scientific testimony in
a federal trial.... We granted certiorari ... in light of sharp divisions among the courts regarding the
proper standard for the admission of expert testimony....

  In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the
dominant standard for determining the admissibility of novel scientific evidence at trial....

    The Frye test has its origin in a short and citation-free 1923 decision concerning the admissibility
of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph
machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for
the District of Columbia described the device and its operation and declared: "Just when a scientific
principle or discovery crosses the line between the experimental and demonstrable stages is difficult
to define. Somewhere in this twilight zone the evidential force of the principle must be recognized,
and while courts will go a long way in admitting expert testimony deduced from a well-recognized
scientific principle or discovery, the thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in which it belongs." 54
App.D.C., at 47, 293 F., at 1014 (emphasis added). Because the deception test had "not yet gained
such standing and scientific recognition among physiological and psychological authorities as would
justify the courts in admitting expert testimony deduced from the discovery, development, and
experiments thus far made," evidence of its results was ruled inadmissible. Ibid.
    The merits of the Frye test have been much debated, and scholarship on its proper scope and
application is legion. [FN4] Petitioners' primary attack, however, is not on the content but on the
continuing authority of the rule. They contend that the Frye test was superseded by the adoption of
the Federal Rules of Evidence. We agree.

   ... Frye, of course, predated the Rules by half a century.



Professor John Barkai, U.H. Law School - Evidence                                   Page - 136
                                                   ***

    ... Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to
admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole
were intended to incorporate a "general acceptance" standard. ... The drafting history makes no
mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal
thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to 'opinion'
testimony."

    ... In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes
a standard of evidentiary reliability. ...

    Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the
outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary
assessment of whether the reasoning or methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be applied to the facts in issue. We are
confident that federal judges possess the capacity to undertake this review. Many factors will bear on
the inquiry, and we do not presume to set out a definitive checklist or test. But some general
observations are appropriate.

    Ordinarily, a key question to be answered in determining whether a theory or technique is
scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested....


   Another pertinent consideration is whether the theory or technique has been subjected to peer
review and publication....

    Additionally, in the case of a particular scientific technique, the court ordinarily should consider
the known or potential rate of error...

   ... Finally, "general acceptance" can yet have a bearing on the inquiry....

    To summarize: "general acceptance" is not a necessary precondition to the admissibility of
scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially Rule
702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid
principles will satisfy those demands. [remanded]

[REHNQUIST & STEVENS concur in part and dissent in part expressing concern that the court has
gone too far in presenting general observations.]




Professor John Barkai, U.H. Law School - Evidence                                       Page - 137
STATE v. MONTALBO, 73 Haw. 130,                                    828 P.2d 1274                      EXPERTS

   Defendant-appellant Charles Montalbo (appellant) was convicted of Assault in the Second Degree,
Hawaii Revised Statutes (HRS) s 707-711(1)(d), Attempted Sexual Assault in the First Degree, HRS ss
705-500 and 707-730(1)(a), and Sexual Assault in the First Degree, HRS s 707-730(1)(a). On appeal, he
claims that ... the trial court should have granted his motion in limine to exclude evidence showing that
his DNA [FN1] matched DNA from the scene of the crime... We affirm.

   FN1. Deoxyribonucleic acids are the molecular basis of heredity in many organisms, including man.
These acids are localized in cell nuclei. No two individuals, other than identical twins, have the same
DNA. The FBI as well as several commercial laboratories in the U.S., have imported techniques used in
molecular biology into the forensic context, in order to determine whether DNA left at the scene of the
crime by the crime's perpetrator, matches that of the defendant.

   Appellant was indicted on March 23, 1990, on charges that he had sexually assaulted California
resident Kristi Vest while she was sunbathing alone at Waihee Beach Park, on the island of Maui.
   On December 14, 1990, appellant filed a motion in limine to exclude all DNA profiling evidence. This
included evidence that DNA recovered from the scene of the assault matched DNA taken from appellant,
and that the probability of such a match was one in 1,000 in the hispanic population....

   Appellant objects to the court's decision to deny his motion to suppress DNA profiling evidence.
Appellant's objection is focused on the statistical evidence that was introduced to show the probability of
a coincidental match. Appellant argues that this evidence did not meet the standard for admissibility set
forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and in cases adopting and modifying the Frye
rule. He maintains that this court had previously adopted the Frye test. State v. Chang, 46 Haw. 22, 374
P.2d 5 (1962).

  Whether scientific evidence is reliable depends on three factors, the validity of the underlying principle,
the validity of the technique applying that principle, and the proper application of the technique on the
particular occasion. ... The test of admissibility of scientific evidence set forth in Frye is whether the
scientific procedure upon which expert testimony is based, is "sufficiently established to have gained
general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014. Thus the focus of the
test is not the validity of the underlying theory or the procedure itself, but the opinions of experts within
the relevant scientific field. ... At a "rather early stage in the use of scientific evidence" at trial, most courts
adopted the standard in Frye....

   Frye has been subject to scathing attacks. Id. at 1206 (citations omitted). It has been criticized as
causing unacceptable delays in the admissibility of reliable evidence due to the lag between the
development of new techniques and their acceptance in the scientific community. [FN4] Id. at 1223.
Another criticism of the test is that it is ambiguous and difficult to apply. Id.; see generally, id. at 1208-23.
 Some courts using the Frye test have focused on whether the scientific community accepts the theory
underlying the technique. ... Others have focused on acceptance of the technique itself, or on scientific
acceptance of the technique used on specific types of samples. ... Finally, Frye has been criticized as
obscuring the critical question of the relevance of scientific evidence to the issues in dispute....




Professor John Barkai, U.H. Law School - Evidence                                             Page - 138
   FN4. In United States v. Williams, 583 F.2d 1194 (2d Cir.1978) cert. denied, 439 U.S. 1117, 99 S.Ct.
1025, 59 L.Ed.2d 77 (1979) the court rejected a strict application of Frye ... stating: [U]nanimity of
opinion in the scientific community, on virtually any scientific question, is extremely rare. Only slightly
less rare is a strong majority. Doubtless, a technique unable to garner any support, or only miniscule
support, within the scientific community would be found unreliable by a court. In testing for
admissibility of a particular type of scientific evidence, whatever the scientific 'voting' pattern may be, the
courts cannot in any event surrender to scientists the responsibility for determining the reliability of that
evidence. Id. at 1198.

   A number of jurisdictions have abandoned Frye in favor of a more flexible approach that treats
reliability as an aspect of relevancy. Giannelli, supra at 1203. McCormick, supra at 605-06 (1954).
Further, the current status of the Frye test is difficult to assess, as courts have deviated from strict
application of the test, have developed variants, or have selectively applied the test. Giannelli, supra at
1228; McCormick, supra at 605-06.

   Although appellant argues that this court adopted the Frye test in State v. Chang, 46 Haw. 22, 374 P.2d
5 (1962) a decision in which the admissibility of a polygraph test was at issue, Chang relied primarily on
precedent from other jurisdictions and merely quoted New York authority similar to the Frye rule.
Appellant also indirectly suggests that Frye should be adopted because this court's analysis in State v.
Kim, 64 Haw. 598, 645 P.2d 1330 (1982), is consistent with Frye. We agree that Kim is broad enough to
encompass the Frye test. In Kim, we stated that: The critical inquiry with respect to expert testimony ...
is whether such testimony 'will assist the trier of fact to understand the evidence or determine a fact in
issue....' Rule 702, Haw.R.Evid. Generally, in order to so assist the jury an expert must base his
testimony upon a sound factual foundation; any inferences or opinions must be the product of an
explicable and reliable system of analysis; and such opinions must add to the common understanding of
the jury. See Rule 703, Haw.R.Evid. Id. at 604-05, 645 P.2d at 1336 (footnotes and citations omitted).
Therefore, the reliability prong of Kim could include the Frye test, but Kim is not necessarily limited to
general acceptance in the scientific community. Under the reliability prong of Kim, it is possible that a
court could also consider the scientific procedure itself, as well as other evidence of the procedure's
reliability.

    We believe the standard articulated by this court in Kim remains the proper standard to apply to the
admission of scientific evidence. Although general acceptance in the scientific field is highly probative
of the reliability of a scientific procedure, there are other indicators of suitability for admission at trial.
[FN5] Examination of either the principle underlying scientific evidence, or of the procedure itself, may
be a sufficient basis upon which to admit or deny evidence at trial, depending upon the procedure as well
as upon the relevance of the evidence to issues at trial. [FN6] Moreover, admission of scientific evidence
is not solely a question of reliability. See McCormick, supra, s 202 at 604 (question is whether scientific
evidence on balance will assist the jury). A court must consider whether the evidence presented at trial
would add to the common knowledge of the jury, would usurp the jury's function as a finder of fact, or
would be likely to confuse and prejudice the jury. These determinations may only be made on
examination of the scientific procedure itself. See McCormick, supra, s 203 at 609 (traditional balancing
method treating general acceptance as one indication of validity, accuracy, and reliability, focuses court
attention where it belongs, on actual usefulness of evidence).




Professor John Barkai, U.H. Law School - Evidence                                        Page - 139
   FN5. The court in Williams delineated the following factors that would be relevant to determine
   whether a scientific technique is reliable: (1) the potential rate of error; (2) the existence and
   maintenance of standards; (3) the care with which the scientific technique has been employed and
   whether it is susceptible to abuse; (4) whether there are analogous relationships with other types of
   scientific techniques that are routinely admitted into evidence; and (5) the presence of failsafe
   characteristics. Williams, 583 F.2d at 1198-99. In United States v. Jakobetz, 747 F.Supp. 250
   (D.Vt.1990) aff'd, 955 F.2d 786 (2d Cir.1992) the court listed the following: (1) the expert's
   qualifications and stature; (2) the existence of specialized literature; (3) the novelty of the technique
   and its relationship to more established areas of scientific analysis; (4) whether the technique has been
   generally accepted by experts in the field; (5) the nature and breadth of the inference adduced; (6) the
   clarity with which the technique may be explained; (7) the extent to which basic data may be verified
   by court and jury; (8) the availability of other experts to evaluate the technique; and (9) the probative
   significance of the evidence. See, e.g., J. Weinstein and M. Berger, 3 Weinstein's Evidence P 702[03]
   (1988); McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L.Rev.
   879, 911-12 (1982). Id. at 255.

   FN6. Cf. Coppolino v. State, 223 So.2d 68 (Fla.App.1968) cert. denied, 399 U.S. 927, 90 S.Ct. 2242,
26 L.Ed.2d 794 (1970), a newly developed scientific test was held admissible although it had been
accepted by only one expert. Defendant was a doctor accused of killing his wife with succinylcholine.
The prosecution expert developed a test to detect this chemical in tissues and used it to prove its presence
in the victim.

   We therefore "adopt" the Frye test of general acceptance in the relevant scientific community under
the reliability prong of the Kim analysis. We hold that a court should weigh general acceptance along
with the other factors listed below in order to determine, under Hawaii Rules of Evidence (HRE) Rules
702 and 703, whether scientific evidence should be admitted at trial. These factors include whether: 1)
the evidence will assist the trier of fact to understand the evidence or to determine a fact in issue; 2) the
evidence will add to the common understanding of the jury; 3) the underlying theory is generally accepted
as valid; 4) the procedures used are generally accepted as reliable if performed properly; 5) the
procedures were applied and conducted properly in the present instance. The court should then consider
whether admitting such evidence will be more probative than prejudicial. Cf. United States v. Two Bulls,
918 F.2d 56 (8th Cir.1990) (court in a circuit recognizing Frye states that the test for DNA evidence is
whether evidence is generally accepted by the scientific community, testing procedures are generally
accepted as reliable if performed properly, test was performed properly in this case, evidence is more
prejudicial than probative, statistics are more probative than prejudicial under Rule 403); State v. Brown,
297 Or. 404, 687 P.2d 751 (1984) limited by 308 Or. 259, 780 P.2d 215 (1989) (court adopts
"strengthened" relevancy test in which general acceptance test is one of seven factors to be considered in
admissibility).

   ... We take judicial notice that the DNA paradigm is not controversial and is widely accepted in the
relevant scientific community. [JB: remember this when we study judicial notice. Here the Supreme
Court took judicial notice.]

   ... Affirmed.




Professor John Barkai, U.H. Law School - Evidence                                       Page - 140
GENERAL ELECTRIC COMPANY v. JOINER
118 S.Ct. 512 (1997)                                                  DAUBERT STANDARD

    We granted certiorari in this case to determine what standard an appellate court should
apply in reviewing a trial court's decision to admit or exclude expert testimony under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
 We hold that abuse of discretion is the appropriate standard. We apply this standard and
conclude that the District Court in this case did not abuse its discretion when it excluded
certain proffered expert testimony.

    We have held that abuse of discretion is the proper standard of review of a district court's
evidentiary rulings. ... The Court of Appeals suggested that Daubert somehow altered this
general rule in the context of a district court's decision to exclude scientific evidence. But
Daubert did not address the standard of appellate review for evidentiary rulings at all. It did
hold that the "austere" Frye standard of "general acceptance" had not been carried over into
the Federal Rules of Evidence. But the opinion also said:

   "That the Frye test was displaced by the Rules of Evidence does not mean, however, that
   the Rules themselves place no limits on the admissibility of purportedly scientific
   evidence. Nor is the trial judge disabled from screening such evidence. To the contrary,
   under the Rules the trial judge must ensure that any and all scientific testimony or
   evidence admitted is not only relevant, but reliable." 509 U.S., at 589, 113 S.Ct., at
   2794-2795 (footnote omitted).

    Thus, while the Federal Rules of Evidence allow district courts to admit a somewhat
broader range of scientific testimony than would have been admissible under Frye, they leave
in place the "gatekeeper" role of the trial judge in screening such evidence....

    We hold that the Court of Appeals erred in its review of the exclusion of Joiner's experts'
testimony. In applying an overly "stringent" review to that ruling, it failed to give the trial
court the deference that is the hallmark of abuse of discretion review. See, e.g., Koon v.
United States, 518 U.S. 81, ---- - ----, 116 S.Ct. 2035, 2046-2047, 135 L.Ed.2d 392 (1996).

   It is so ordered.

   Justice BREYER, concurring.
   Justice STEVENS, concurring in part and dissenting in part.




Professor John Barkai, U.H. Law School - Evidence                            Page - 141
STATE V. BATANGAN, 71 Haw. 552, 799 P.2d 48 (1990)
                        HRE 702, 704 Expert on Child Credibility
WAKATSUKI, Justice.

    Felomino Batangan (Defendant) was accused of having sexual contact with his daughter (Complainant).
Complainant alleged that when she was 6 or 7 years old, on four or five occasions, Defendant performed
sexual acts on her. Complainant could not provide any specific dates or reference points in time. Nor were the
acts described specific as to one incident or another. There was no evidence of physical injury and no
third-party witnesses to these incidents.

   Complainant did not report these incidents until several months after the occurrences. She first reported to
school authorities that Defendant had physically abused her. When no injuries were found, she admitted that
she had lied about the physical abuse, but instead accused Defendant of sexually abusing her. Complainant
subsequently recanted her allegations of sexual abuse. At trial, however, Complainant testified that she had
been sexually abused by Defendant.

   ... At the first trial, Defendant was acquitted of the rape charge, and a mistrial (due to a hung jury) was
declared on the sexual abuse charge. The State proceeded to retry Defendant on the sex abuse count.

   At the second trial, the State presented Dr. John Bond as an expert witness in the field of clinical
psychology with a subspecialty in the treatment of sexually abused children. Dr. Bond had evaluated
Complainant on one occasion three weeks prior to the second trial.

   Dr. Bond testified regarding his evaluation of Complainant (her personality, intelligence, behavior) and
what Complainant had related to him regarding the incidents of sexual abuse. There was also some testimony
about behavior of child sex abuse victims in general. Finally, Dr. Bond testified as to how he evaluates
whether a child is telling the truth about being sexually abused. He then implicitly testified that Complainant
was believable and that she had been abused by Defendant.

   Defendant objected to the admission of Dr. Bond's testimony. The trial court, however, determined that
such testimony was admissible under State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982).

   Defendant was convicted of first degree sexual abuse. He appeals on the ground that the trial court
committed error in admitting Dr. Bond's testimony. We agree.
                                                          I.
   We recognize that sexual abuse of children is "detestable and society demands prosecution of these
abusers." ... Yet these cases are difficult to prosecute because of the young age of many of the victims and the
absence of eyewitnesses. ... "Given the egregious nature of child molestation, we are tempted to stretch the
rules of evidence to their utmost." ... However, the charge of sexual abuse by itself imposes an heinous stigma
on the accused and a conviction results in a serious penalty. ...

   Our rules of evidence should therefore be interpreted in light of society's interest as well as defendant's
right to a fair trial. ...




Professor John Barkai, U.H. Law School - Evidence                                         Page - 142
   Rule 702, Hawaii Rules of Evidence (HRE) governs the admission of expert testimony at a trial:
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.

    Expert testimony assists the trier of fact by providing "a resource for ascertaining truth in relevant areas
outside the ken of ordinary laity." ... Specialized knowledge which is the proper subject of expert testimony is
knowledge not possessed by the average trier of fact who lacks the expert's skill, experience, training, or
education. ... Although an expert's testimony on matters within the competence of the jurors may be relevant
and helpful, "the possibility that the jury may be unduly influenced by the expert's opinion would mitigate
against admission." Kim, 64 Haw. at 607, 645 P.2d at 1337. Scientific and expert testimony, with their "aura
of special reliability and trustworthiness," ... courts the danger that the triers of fact will "abdicate [their] role
of critical assessment," ... and "surrender [ ] their own common sense in weighing testimony," ...

    The common experience of a jury, in most cases, provides a sufficient basis for assessment of a witness'
credibility. Thus, expert testimony on a witness' credibility is inappropriate. Kim, 64 Haw. at 607, 645 P.2d
at 1337. However, sexual abuse of children "is a particularly mysterious phenomenon," State v. Castro, 69
Haw. 633, 648, 756 P.2d 1033, 1044 (1988), "and the common experience of the jury may represent a less
than adequate foundation for assessing the credibility of a young child who complains of sexual abuse," ...
While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of
assessing witness credibility accordingly, tensions unique to trauma experienced by a child sexually abused
by a family member have remained largely unknown to the public.... [T]he routine indicia of witness
credibility--consistency, willingness to aid the prosecution, straight forward rendition of the facts--may, for
good reason be lacking. As a result jurors may impose standards of normalcy on child victim/witnesses who
consistently respond in distinctly abnormal fashion. ...

   Child victims of sexual abuse have exhibited some patterns of behavior which are seemingly inconsistent
with behavioral norms of other victims of assault. Two such types of behavior are delayed reporting of the
offenses and recantation of allegations of abuse. Normally, such behavior would be attributed to inaccuracy
or prevarication. ... In these situations it is helpful for the jury to know that many child victims of sexual abuse
behave in the same manner. Expert testimony "[e]xposing jurors to the unique interpersonal dynamics
involved in prosecutions for intrafamily child sexual abuse," ... 273, "may play a particularly useful role by
disabusing the jury of some widely held misconceptions ... so that it may evaluate the evidence free of the
constraints of popular myths," ...

   We recognize that even this type of expert testimony carries the potential of bolstering the credibility of
one witness and conversely refuting the credibility of another. Much expert testimony on any subject will
tend to do this. Such testimony, by itself, does not render the evidence inadmissible. ... The pertinent
consideration is whether the expert testimony will assist the jury without unduly prejudicing the defendant.

    Thus, while expert testimony explaining "seemingly bizarre" behavior of child sex abuse victims is helpful
to the jury and should be admitted, conclusory opinions that abuse did occur and that the child victim's report
of abuse is truthful and believable is of no assistance to the jury, and therefore, should not be admitted. Such
testimony is precluded by HRE Rule 702. Once the jury has learned the victim's behavior from the evidence
and has heard experts explain why sexual abuse may cause delayed reporting, inconsistency, or recantation,
we do not believe the jury needs an expert to explain that the victim's behavior is consistent or inconsistent
with the crime having occurred. ... The jury is fully capable, on its own, of making the connections to the facts
of the particular case before them and drawing inferences and conclusions therefrom.

Professor John Barkai, U.H. Law School - Evidence                                              Page - 143
                                                    II.
   We are cognizant that HRE Rule 704 permits "[t]estimony in the form of opinion or inference" even
though "it embraces an ultimate issue to be decided by the trier of fact." But Rule 704 does not allow "the
admission of opinions which would merely tell the jury what result to reach[.]" Commentary to HRE Rule
704.

    As in most child sexual abuse cases, where "the only evidence consists of the victim's accusation and the
defendant's denial, expert testimony on the question of who to believe is nothing more than advice to jurors
on how to decide the case." ... The expert's use of words such as "truthful" and "believable" is not talismanic.
 But where the effect of the expert's opinion is "the same as directly opining on the truthfulness of the
complaining witness," ... such testimony invades the province of the jury. Unless the function of a jury is to
find the truth, its role is devoid of substance. Often the jury can meet this obligation only by determining the
credibility of witnesses. The jury system, with all its imperfections, has served society well. It has not been
demonstrated that the art of psychiatry has yet developed into a science so exact as to warrant such a basic
intrusion into the jury process. ...

                                                       III.
    In State v. Kim, [FN1] supra, the defendant was convicted of second degree rape of his 13-year-old
stepdaughter. On cross- examination, defense counsel attempted to impeach the complainant's testimony by
establishing her lack of credibility on other occasions. To rehabilitate the complainant's credibility, the State
called on Dr. Mann as an expert witness who had examined the complainant shortly after the alleged incident
in the capacity of a treating physician. Dr. Mann testified as to common emotional reactions of victims of
sexual abuse. He then went on to opine that the complainant was "believable" based on his examination of the
complainant and interviews with the complainant's mother and with the defendant.

   FN1. Kim has been adversely criticized by several jurisdictions which have had the opportunity to
consider this issue. ... Most other jurisdictions which have considered this issue have not adopted the holding
in Kim. In addition to cases cited in the text of this opinion, ...

   Our court, recognizing an expert generally may not testify as to the credibility of a witness, nevertheless
carved an exception in Kim. Finding child sexual abuse to be outside the common experience of the jury, the
court held that "an expert's assessment of credibility may arguably provide the jury with potentially useful
information[.]" Kim, 64 Haw. at 607, 645 P.2d at 1337. Although troubled by Dr. Mann's statement that the
complainant was "believable," this court did not deem its admission as reversible error in the case.

    In Castro, supra, the defendant was accused of attempting to murder his girlfriend. The incident occurred
in a bar where several witnesses were present. At trial, the defense attorney attempted to impugn the victim's
credibility through cross-examination. The State, therefore, called a psychologist who gave opinion
testimony about the victim's credibility. The trial court allowed the psychologist's testimony based on Kim.
This court held that admission of such testimony constituted reversible error. The court explicitly limited the
use of expert testimony regarding credibility to child sexual abuse cases. It reasoned that child sexual abuse
is a particularly mysterious phenomenon, often involving an unusual cast of characters who are involved in
relationships that are seemingly inexplicable to most people.... [E]xpert testimony could reveal
characteristics or conditions of the child victim of sexual abuse and further the jury's understanding of what in
all likelihood was unfamiliar and mysterious. Castro, 69 Haw. at 648, 756 P.2d at 1044 (citations and internal
quotation marks omitted).


Professor John Barkai, U.H. Law School - Evidence                                          Page - 144
    Shortly after Castro, this court decided in In the Interest of Doe, 70 Haw. 32, 761 P.2d 299 (1988), that
testimony regarding the victim's credibility was erroneously admitted to the defendant's prejudice. In that
case, a juvenile was accused of sexually abusing a 4-year-old child. The child complainant was unable to
testify, but the child's mother and pre-school teacher testified as to what the child had related to them. The
teacher was asked her opinion of the child's truthfulness. She responded that the child "wasn't lying." Even
though the teacher was not an expert in the field of child sex abuse, as the State's witness, her opinion was
elicited during direct examination prior to the alleged victim's credibility becoming an issue.

    In both Castro and Doe, the prosecutor argued and the trial court agreed that Kim permitted the admission
of testimony on a witness' credibility. This court disagreed. Castro and Doe were clearly distinguishable from
Kim, therefore, this court did not have to reconsider the holding in Kim. The facts of this case, however, are
sufficiently similar to Kim that this court is now squarely faced with the issue of whether Kim remains viable.
 Here, Defendant is alleged to have sexually abused his minor daughter; there are no third-party witnesses to
the incidents; the Complainant's credibility was attacked at trial; and Dr. Bond was a qualified expert.

                                                        IV.
    We are cognizant that cases involving allegations of child sexual abuse are difficult to prove, but they are
equally difficult to defend against. Courts must proceed with caution in admitting expert testimony in these
cases. The trial court must be satisfied that the witness is indeed an expert and that the testimony is relevant.
 The testimony must further be shown to assist the jury to comprehend something not commonly known or
understood. And experts may not give opinions which in effect usurp the basic function of the jury. The trial
court must keep in mind that an expert's opinion on the credibility of a victim is always suspect of bias and
carries the danger of unduly influencing the triers of fact. Furthermore, even objective opinions of experts
regarding a victim's credibility is no more reliable than the determination of the victim's credibility by the
triers of fact.
                                                         V.
    In this case, although Dr. Bond's qualification as an expert was not objected to, his testimony regarding
general principles of social or behaviorial science of a child victim in a sexual abuse case was so minuscule,
we are convinced that his testimony could not have assisted the jury in understanding an otherwise bizarre
behavior. In fact, Dr. Bond several times asked the jury to recall their own childhood days and suggested that
Complainant's actions were actions of normal children under similar circumstances. When queried about
retractions of accusations--a common behavior recognized as unique to intrafamily sex abuse--Dr. Bond
admitted that he lacked data on the subject. Finally, when Dr. Bond was asked to evaluate Complainant's
credibility in her accusation of sexual abuse by Defendant, he did not explicitly say that Complainant was
"truthful" or "believable", but there is no doubt in our minds that the jury was left with a clear indication of his
conclusion that Complainant was truthful and believable.

   We hold that Dr. Bond's testimony was impermissible under HRE Rule 702 and therefore clearly
prejudicial to Defendant. To the extent that any holding in Kim is inconsistent with our holding herein, such
holding in Kim is overruled.

   Defendant's conviction is vacated. Case is remanded for a new trial.




Professor John Barkai, U.H. Law School - Evidence                                             Page - 145
STATE v. CABABAG, 9 Haw.App. 496, 850 P.2d 716 (1993)
                                                                                                    EXPERTS

   Defendant Alfred Cababag (Cababag) appeals the family court's ... judgment, upon a jury's verdict,
convicting him of abuse of family and household members, Hawaii Revised Statutes (HRS) s 709-906
(1985), and sentencing him to sixty days of incarceration and completion of the Child and Family Services'
Anger Management Program....             Cababag contends that the family court erred when it decided that
one of the State's witnesses was an expert in domestic violence and allowed her testimony into evidence.
 We affirm.

   On August 30, 1991, Cababag filed his pretrial Motion in Limine Number 2 (ML2) "for an Order
excluding from trial all testimony of Laura Crites or any similar 'expert' witness." ... In its "Findings of Fact,
Conclusions of Law and Order Partially Granting and Partially Denying Defense Motion in Limine
Number 2 Regarding State's Calling Nanci Kreidman as an Expert in Domestic Violence" entered on June
3, 1992, the family court decided in relevant part as follows:

                           FINDINGS OF FACT AND CONCLUSIONS OF LAW
    1. Due to [Kreidman's] knowledge, skill, experience, training, education and personal involvement in
the field of domestic violence for a substantial period of time, including her work with alleged victims and
perpetrators, her participation in the preparation of various materials including manuals, her teaching at
college levels, her video production for public dissemination, and in particular, working in the counseling
field with both alleged abuse victims and abusers, and her unrebutted testimony as to her familiarity with
the expert theories in the field of domestic violence, the Court qualifies [Kreidman] as an expert in
domestic violence under the standards of State v. Batangan, 71 Haw. 552[, 799 P.2d 48] (1990).
                                                 * * * * * *
    3. Based upon [Kreidman's] testimony, it does appear that the seemingly bizarre behavior of alleged
victims of domestic violence such as recantation, minimization, and other related behavior, is similar to the
seemingly bizarre behavior of child sexual abuse victims, as the Supreme Court itself acknowledged in
State v. Batangan. 4. This seemingly bizarre behavior of alleged victims is beyond the knowledge or
understanding of lay persons who normally serve on juries, and perhaps, also beyond the knowledge and
understanding of participants who work in the criminal justice system itself, and does require a special
expertise to understand.
                                                 * * * * * *
    8. [Kreidman] will be qualified as an expert in domestic violence, assuming that the appropriate
expertise is shown during the trial by the State during direct examination of [Kreidman]. 9. [Kreidman's]
expert testimony will have certain strict limitations: [Kreidman] will not be permitted to express any
opinion about whether abuse occurred in the instant case, or whether the alleged victim's report of abuse,
either to the police initially, or in her testimony at trial, is truthful or untruthful.
                                                 * * * * * *
    10. [Kreidman] has not personally met [Cuthbertson][the victim] or [Cababag] and is not familiar with
the facts of this case; this would appear to insure that she could not express an opinion about either the
credibility of [Cuthbertson] or about whether abuse occurred. 11. The Court will not allow [Kreidman] to
state what percentage of alleged victims are female versus what percentage are male ..., since this would
appear to create a presumption that [Cababag] is an abuser. 12. The Court will not allow [Kreidman] to
reference any aspect of the criminal law that requires mandatory punishment or mandatory incarceration
for abusers, .... 13. The Court will not allow [Kreidman] to offer any testimony of predicting future
violence by [Cababag],.... 14. The Court will not allow [Kreidman] to express any opinion about whether
alleged victims of domestic abuse tend to exaggerate or not,....
                                                 * * * * * *

Professor John Barkai, U.H. Law School - Evidence                                           Page - 146
   During the trial, on September 18, 1991, Cuthbertson admitted to being visited by the police on the
morning of March 8, 1991, being contacted by the police that afternoon, and writing and signing her written
statement, but testified that she "made up" the story she told in her written statement.


The State called Kreidman as its expert on domestic violence. Over Cababag's objection, the family court
found Kreidman "to be an expert in domestic violence[.]"

Kreidman testified part as follows:

Q. In your opinion, and based on your training and experience, are there distinct behaviors or
   characteristics that victims of domestic violence show or exhibit?
A. Yes, there are.

Q. Are these characteristics seen from one victim to the next; in other words, are these characteristics or
   behaviors or some combination thereof fairly consistent from one victim to the next?
A. Yes, I would say they are.

Q. What types of characteristics or behaviors are these?
A. The demonstration of ambivalence, where a person has difficulty making up their mind.

Q. Making up their mind about what?
A. About what they want to do, what measures they want to take or choices or what direction they want
   to go.

Q. About a relationship?
A. Yes.

Q. What other types of behaviors are seen commonly?
A. Minimization.

Q. What is minimization?
A. It's an attempt to minimize how serious violence may be in the relationship, looking at the individual
   acts as not being that significant.

Q. Who is it that minimizes the behaviors?
A. Both the perpetrator and the victim minimize the behavior, or the seriousness of the behavior.

Q. What other types of behaviors do you see?
A. Self blame. A woman very often times will take responsibility for the violence....
                                         * * * * * *
Q. Are you familiar with the phenomenon called recantation?
A. Yes.

Q. What is that?
A. That is when a person says something and then, at a later point, decides that they [sic] want to change
    their story and take back what they originally said.

Q. Is this something that victims do in abusive relationships?
A. Yes.

Professor John Barkai, U.H. Law School - Evidence                                     Page - 147
Q. Have you seen or counseled women who have reacted in this way. A. Yes, I have.

Q. Is recantation one of the characteristic behaviors that women display or exhibit when they have been
   in an abusive relationships [sic]?
A. It may be. It's very closely related to the ambivalence; like, "I kind of want to do this. I really want
   him to get help, but I don't want him to get in trouble. Maybe if he gets in trouble it will be worse for
   me and, so, maybe I'll just forget it and take back what I said and it will all be better."




Professor John Barkai, U.H. Law School - Evidence                                      Page - 148
STATE v. CASTRO 69 Haw. 633, 756 P.2d 1033 (1988)
                                                                                   EXPERT TESTIMONY
         Michael Castro was convicted of attempted murder and assault in the first degree following a jury trial in
the Circuit Court of the First Circuit. He asserts on appeal that the judgment of conviction must be vacated because
of a score of errors committed by the trial court. Reviewing the record, we conclude the court erred when it ... (2)
permitted expert testimony serving to bolster the complaining witness' credibility, ... Thus, we set aside the
judgment of conviction and remand the case for a new trial on the charge of attempted murder.

      [At the Gardenia Garden, Castro] suddenly leaped from his seat, grabbed [Charlotte Harkin, his estranged
girlfriend] by her hair, and yelled, "let's go." He stabbed her repeatedly in the back and neck with a knife as he
dragged her toward the door. He testified at trial that he knew what was happening but just "couldn't stop."
                                                         ***

      We turn ... to the ruling that permitted the expert witness to state his opinion on the complaining witness'
credibility. Inasmuch as the ruling was premised on State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982), the
discussion of whether the court erred or not is centered on our decision there.
                                                              A.
      The defendant in State v. Kim was accused of having sexual intercourse with his thirteen-year-old
stepdaughter in violation of HRS s 707-731. Not surprisingly, the putative victim was the lone witness to the
offense. A week or so after it purportedly occurred, the child informed her mother of the sexual encounter with her
stepfather. She was subjected thereafter to physical and psychiatric examinations at the Kapiolani Children's
Medical Center.
      When the case proceeded to trial in the circuit court, defendant's counsel attempted to impeach the
complaining witness' story with insinuations that it was fabricated. He cross-examined her about boyfriends, and
she denied she had one. But the youthful witness broke down and admitted she had a boyfriend after being
confronted with a letter she wrote.
      The State then called as an expert witness the psychiatrist who examined her at the medical center. The offer
of proof was that his testimony would be supportive of the child witness' account of the alleged crime. The
defendant's objection to the proffered testimony was overruled on the ground that the cross-examination had put the
child's credibility sufficiently at issue to render the testimony admissible. The psychiatrist was qualified as an expert,
and he gave testimony which included a statement that he found the child witness' account of the rape "believable."
      The jury returned a guilty verdict, and the defendant appealed from the judgment that followed. Predictably,
the issue on appeal was whether the jury should have been allowed to hear such testimony. The appellant asserted
that the testimony on the credibility of the complaining witness invaded the province of the jury, was not a proper
subject for expert opinion, and its probative value was outweighed by its prejudicial effect. Though mindful that
"[i]n a trial by jury, the jury is the sole judge of the credibility of witnesses[,] State v. Kekaualua, 50 Haw. 130, 433
P.2d 131 (1967)[,]" we approved the use of expert testimony in the situation under review.
      We recognized that the admission of expert accrediting or impeaching testimony posed a threat to the jury's
function since "such testimony may constitute 'an invitation to the trier of fact to abdicate its responsibility ... upon
the questionable premise that the expert is in a better position to make such a judgment.' Comm. v. O'Searo, 466 Pa.
224, 352 A.2d 30 (1976)." State v. Kim, 64 Haw. at 602, 645 P.2d at 1334. Yet we were "reluctant to categorically
preclude all such testimony, since ... the virtually unanimous opinion of commentators [was] that under certain
circumstances expert psychiatric testimony may reveal to the trier of fact characteristics or conditions of the witness
which may assist the jury [in assessing] credibility." Id. (citation omitted). And since the legislature had recently
adopted a code of evidence, we decided to consider the admissibility of the expert testimony in the light of standards
enunciated there.




Professor John Barkai, U.H. Law School - Evidence                                                 Page - 149
      "The critical inquiry with respect to expert testimony under our new code," we found, "is whether [it] 'will
assist the trier of fact to understand the evidence or determine a fact in issue....' Rule 702, Haw.R.Evid." State v.
Kim, 64 Haw. at 604, 645 P.2d at 1336 (footnote omitted). We read other relevant provisions of the code as
rendering the testimony admissible only if it is based "upon a sound factual foundation; any inferences or opinions
[are] the product of an explicable and reliable system of analysis; and [the] opinions ... add to the common
understanding of the jury." Id. (citations and footnotes omitted). And of course, we read the code as conditioning
admissibility on whether or not the probative value of the testimony is substantially outweighed by the danger of
unfair prejudice and the other factors delineated in Haw.R.Evid. 403. 64 Haw. at 605, 645 P.2d at 1336.
      Measuring the testimony of the psychiatrist against these standards, we decided the trial court did not abuse its
discretion in allowing him to testify. Though troubled by the portion of the testimony where the expert flatly said
he "found her story believable[,]" we nevertheless concluded the new code permitted the reception of expert
testimony in the form of an opinion or inference embracing an ultimate issue to be decided by the jury if the
testimony is otherwise admissible. See Haw.R.Evid. 704. Moreover, "[t]he nature of the ... testimony presented
[was] such that the jury could adequately assess and, if it chose to, disregard, the opinion of the expert [,]" as it had
been instructed was its prerogative. 64 Haw. at 610, 645 P.2d at 1339.
                                                           B.
      But "[e]xpert testimony respecting witness credibility is not ... appropriate [in] all situations. In most cases, the
common experience of the jury should suffice as a basis for assessments of credibility." 64 Haw. at 607, 645 P.2d
at 1337. The admission of expert testimony was sanctioned in State v. Kim because the common experience of the
jury represented "a less than adequate foundation for assessing the credibility of [the] witness," a child sex-offense
victim "whose claims [were] substantially uncorroborated." Id., 645 P.2d at 1337-38 (citation and footnote omitted).
      "[C]hild sexual abuse is a particularly mysterious phenomenon, often involving an unusual cast of characters
who are involved in relationships that are seemingly inexplicable to most people." McCord, Expert Psychological
Testimony About Child Complainants in Sexual Abuse Prosecutions, 77 J.Crim. L. & Criminology 1, 44-45 (1986).
 We were convinced in State v. Kim that expert testimony could reveal characteristics or conditions of the child
victim of sexual abuse and further the jury's understanding of what in all likelihood was "unfamiliar and
mysterious." McCord, supra, at 34.
      The situation here bears slight, if any, resemblance to that in which the use of expert testimony on the issue of
credibility was approved. To begin with, we would not deem attempted murder a phenomenon inexplicable to most
people. The armed attack by Michael Castro was perpetrated in a nightclub, not in the privacy of a bedroom; it was
witnessed by more than several persons. And the charges against the defendant did not rest on the testimony of a
"child complainant[ ] whose claims [were] substantially uncorroborated." State v. Kim, 64 Haw. at 607, 645 P.2d
at 1337-38 (citing People v. Russel, 69 Cal.2d 187, 443 P.2d 794, 70 Cal.Rptr. 210 (1968)).
      State v. Kim, in our considered opinion, was a rare case where the common experience of the jury was not
likely to suffice as a basis for assessment of credibility. It was meant to deal with the problems posed when the
testimony of a child sex-abuse victim is presented in the prosecution of the offense. If it is perceived as precedent
for the allowance generally of expert testimony on credibility, the perception is erroneous. The trial court thus
abused its discretion in allowing the testimony tending to support the credibility of Charlotte Harkin. See also State
v. Black, 109 Wash. 2d 336, 745 P.2d 12 (1987).
...
      The judgment of conviction is vacated and the case is remanded for a new trial on the charge of attempted
murder.




Professor John Barkai, U.H. Law School - Evidence                                                  Page - 150
STATE V. RAITA FUKUSAKU, 85 Hawai'i 462, 946 P.2d 32 (1997)
     Defendant ... Raita Fukusaku (Defendant) appeals his convictions and sentences on two counts of
murder in the second degree...
     On February 23, 1994, at about 5:00 p.m., Honolulu firefighters responded to a fire at 1350 Ala Moana
Boulevard, Penthouse 4, and found the body of Toako "Kototome" Fujita (Kototome) in a bedroom closet.
She had been shot through the chest. At about 10:30 p.m. the same night, firefighters were summoned to the
parking lot of the Park Shore Hotel, where they discovered a red Acura sports car on fire. The body of
Kototome's son, Goro Fujita (Goro), was found on the front passenger seat. He had also been shot through
the chest. On March 30, 1994, Defendant, an acquaintance of Goro's, was charged with one count of murder
in the first degree [FN2] and two counts of murder in the second degree [FN3] in connection with the deaths
of the Fujitas. As Defendant had returned to Japan by then, extradition proceedings were conducted and
Defendant was returned to Honolulu in August 1994.

                  1. Requirement of a Hearing on the Reliability of the Hair and Fiber Evidence
     [1] On February 27, 1994, just prior to presentation of opening statements, defense counsel argued that
a separate hearing should be held, pursuant to Hawai'i Rules of Evidence (HRE) Rule 104, [FN4] to determine
the admissibility of the Prosecution's hair and fiber evidence. The trial court denied the request and
proceeded with opening statements. On March 15, 1994, defense counsel renewed the request, and the trial
court [again denied the request].
...
     On appeal, Defendant argues that the trial court should not have allowed expert testimony on the hair and
fiber samples without first requiring the Prosecution to establish the reliability of the expert's conclusions.
Defendant argues that in Daubert v. Merrell Dow Pharmaceuticals, Inc... the United States Supreme Court
held that it is the trial court's responsibility to make certain that the scientific evidence presented is reliable.
Furthermore, argues Defendant, the need for a judicial determination of reliability is not limited to novel
scientific procedures. See id. at 592 n. 11, 113 S.Ct. at 2796 n. 11 ("Although the Frye decision [which
Daubert overruled] itself focused exclusively on 'novel' scientific techniques, we do not read the requirements
of [Federal Rules of Evidence (FRE) ] Rule 702 to apply specially or exclusively to unconventional
evidence.")...
     The Prosecution's response is that hair and fiber evidence is reliable. The Prosecution notes that the
overwhelming majority of cases have found such evidence to be reliable and admissible.

      The trial court's decision was apparently based on the distinction between "scientific evidence" and
"laboratory techniques." The trial court apparently ruled that while scientific evidence is subject to a Daubert
reliability analysis, laboratory techniques are not. Although the trial court did not specifically cite authority
for this distinction, it appears to have relied on certain statements in Daubert. In Daubert, the Court noted that
FRE Rule 702 applies to "scientific, technical, or other specialized knowledge." Daubert, 509 U.S. at 589, 113
S.Ct. at 2794. The Court, however, was careful to limit its holding in Daubert to "scientific knowledge." Id.
at 590 n. 8, 113 S.Ct. at 2795 n. 8. Thus, the trial court in the present case apparently ruled that hair and fiber
evidence is "technical knowledge" rather than "scientific knowledge" and was therefore not subject to a
separate reliability determination.
...
     [3] This court has followed a two-pronged analysis when addressing proposed expert testimony...In short,
expert testimony must be (1) relevant and (2) reliable... In addition, "the trial court must determine whether
admitting such evidence will be more probative than prejudicial." Maelega, 80 Hawai'i at 181, 907 P.2d at 767
(internal quotation marks omitted); see also HRE Rule 403.




Professor John Barkai, U.H. Law School - Evidence                                             Page - 151
      Therefore, reliability is an essential part of the analysis we apply to the admission of expert testimony.
Nevertheless, in addressing the reliability prong, our case law suggests that scientific knowledge is
distinguishable from other types of knowledge. In Maelega, the defendant argued that the proffered expert
testimony on domestic violence was unreliable as scientific knowledge because it was not empirically testable.
 Maelega, 80 Hawai'i at 182, 907 P.2d at 768. In response, this court noted that the United States Supreme
Court in Daubert had expressly limited its holding to scientific knowledge, as opposed to technical or other
specialized knowledge. Id. We further noted that expert testimony on domestic violence constitutes
"specialized knowledge." ... We then upheld the admission of the testimony and implicitly rejected the
defendant's contention. Maelega, 80 Hawai'i at 182, 907 P.2d at 768. Thus, under Maelega, "specialized
knowledge" may be deemed reliable even if it is not empirically testable. This suggests that expert testimony
involving other types of knowledge may be treated differently than "scientific knowledge."
      [4][5] We agree with the trial court's approach to this issue. "Scientific knowledge" must be
distinguished from "technical knowledge." Expert testimony deals with "scientific knowledge" when it
involves the validity of the scientific principles and the reliability of the scientific procedures themselves. In
contrast, expert testimony deals with "technical knowledge" when it involves the mere technical application
of well-established scientific principles and procedures. In such a situation, because the underlying scientific
principles and procedures are of proven validity/reliability, it is unnecessary to subject technical knowledge to
the same type of full-scale reliability determination required for scientific knowledge. Thus, although
technical knowledge, like all expert testimony, must be both relevant and reliable, its reliability may be
presumed.
      The principles and procedures underlying hair and fiber evidence are overwhelmingly accepted as
reliable. As one treatise notes, "[t]he cases in which courts have excluded hair evidence are so rare that they
literally amount to only a handful of precedents.... In contrast to the few cases excluding hair evidence, a large
body of case law reflects the courts' receptivity to hair analysis."...
      Because the scientific principles and procedures underlying hair and fiber evidence are well-established
and of proven reliability, the evidence in the present case can be treated as "technical knowledge." Thus, an
independent reliability determination was unnecessary. The trial court did not abuse its discretion in refusing
to hold a reliability hearing. Additionally, we note that there is no indication in the record that the manner in
which the hair and fiber analysis was conducted in this case was technically deficient. The relevancy of the
evidence and the balancing of probative value against prejudicial effect have not been challenged. Therefore,
the trial court did not abuse its discretion in admitting the evidence...
      IT IS HEREBY ORDERED that Defendant's convictions of two counts of murder in the second degree
are affirmed




Professor John Barkai, U.H. Law School - Evidence                                          Page - 152
KUMHO TIRE COMPANY v. CARMICHAEL
119 S.Ct. 1167 (1999)

     Justice BREYER delivered the opinion of the Court.
     In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), this Court
focused upon the admissibility of scientific expert testimony. It pointed out that such testimony is admissible only if it is
both relevant and reliable. And it held that the Federal Rules of Evidence "assign to the trial judge the task of ensuring that
an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id., at 597, 113 S.Ct. 2786.
The Court also discussed certain more specific factors, such as testing, peer review, error rates, and "acceptability" in the
relevant scientific community, some or all of which might prove helpful in determining the reliability of a particular
scientific "theory or technique." Id., at 593-594, 113 S.Ct. 2786.
     This case requires us to decide how Daubert applies to the testimony of engineers and other experts who are not
scientists. We conclude that Daubert's general holding--setting forth the trial judge's general "gatekeeping"
obligation--applies not only to testimony based on "scientific" knowledge, but also to testimony based on "technical" and
"other specialized" knowledge. See Fed. Rule Evid. 702. We also conclude that a trial court may consider one or more
of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as
the Court stated in Daubert, the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor
exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it
decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric
Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (courts of appeals are to apply "abuse of
discretion" standard when reviewing district court's reliability determination). Applying these standards, we determine
that the District Court's decision in this case--not to admit certain expert testimony--was within its discretion and therefore
lawful.
                                                                  I
     On July 6, 1993, the right rear tire of a minivan driven by Patrick Carmichael blew out. In the accident that followed,
one of the passengers died, and others were severely injured. In October 1993, the Carmichaels brought this diversity suit
against the tire's maker and its distributor, whom we refer to collectively as Kumho Tire, claiming that the tire was
defective. The plaintiffs rested their case in significant part upon deposition testimony provided by an expert in tire failure
analysis, Dennis Carlson, Jr., who intended to testify in support of their conclusion.
....
     Despite the tire's age and history, Carlson concluded that a defect in its manufacture or design caused the blow-out....
     Kumho Tire moved the District Court to exclude Carlson's testimony on the ground that his methodology failed Rule
702's reliability requirement. The court agreed with Kumho that it should act as a Daubert-type reliability "gatekeeper,"
even though one might consider Carlson's testimony as "technical," rather than "scientific." See Carmichael v. Samyang
Tires, Inc., 923 F.Supp. 1514, 1521-1522 (S.D.Ala.1996). The court then examined Carlson's methodology in light of the
reliability-related factors that Daubert mentioned, such as a theory's testability, whether it "has been a subject of peer
review or publication," the "known or potential rate of error," and the "degree of acceptance ... within the relevant
scientific community." 923 F.Supp., at 1520 (citing Daubert, 509 U.S., at 592-594, 113 S.Ct. 2786). The District Court
found that all those factors argued against the reliability of Carlson's methods, and it granted the motion to exclude the
testimony (as well as the defendants' accompanying motion for summary judgment).
...
     The Eleventh Circuit reversed... It noted that "the Supreme Court in Daubert explicitly limited its holding to cover only
the 'scientific context,' " adding that "a Daubert analysis" applies only where an expert relies "on the application of
scientific principles," rather than "on skill- or experience-based observation." ... It concluded that Carlson's testimony,
which it viewed as relying on experience, "falls outside the scope of Daubert," that "the district court erred as a matter of
law by applying Daubert in this case," and that the case must be remanded for further (non-Daubert-type) consideration
under Rule 702...

    We granted certiorari in light of uncertainty among the lower courts about whether, or how, Daubert applies to expert
testimony that might be characterized as based not upon "scientific" knowledge, but rather upon "technical" or "other
specialized" knowledge...

Professor John Barkai, U.H. Law School - Evidence                                                        Page - 153
                                                              B
    The petitioners ask more specifically whether a trial judge determining the "admissibility of an engineering expert's
testimony" may consider several more specific factors that Daubert said might "bear on" a judge's gate-keeping
determination. These factors include: --Whether a "theory or technique ... can be (and has been) tested"; --Whether it "has
been subjected to peer review and publication"; --Whether, in respect to a particular technique, there is a high "known or
potential rate of error" and whether there are "standards controlling the technique's operation"; and --Whether the theory
or technique enjoys "general acceptance" within a "relevant scientific community." 509 U.S., at 592-594, 113 S.Ct. 2786.
Emphasizing the word "may" in the question, we answer that question yes.
    [2] Engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases. See,
e.g., Brief for Stephen Bobo et al. as Amici Curiae 23 (stressing the scientific bases of engineering disciplines). In other
cases, the relevant reliability concerns may focus upon personal knowledge or experience. As the Solicitor General points
out, there are many different kinds of experts, and many different kinds of expertise... Our emphasis on the word "may"
thus reflects Daubert's description of the Rule 702 inquiry as "a flexible one." 509 U.S., at 594, 113 S.Ct. 2786. Daubert
makes clear that the factors it mentions do not constitute a "definitive checklist or test." Id., at 593, 113 S.Ct. 2786. And
Daubert adds that the gatekeeping inquiry must be " 'tied to the facts' " of a particular "case." Id., at 591, 113 S.Ct. 2786
(quoting United States v. Downing, 753 F.2d 1224, 1242 (C.A.3 1985)). We agree with the Solicitor General that "[t]he
factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the
expert's particular expertise, and the subject of his testimony." Brief for United States as Amicus Curiae 19. The
conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the
factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of
evidence. Too much depends upon the particular circumstances of the particular case at issue.
...some of Daubert's questions can help to evaluate the reliability even of experience-based testimony. In certain cases, it
will be appropriate for the trial judge to ask, for example, how often an engineering expert's experience- based
methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering
community. Likewise, it will at times be useful to ask even of a witness whose expertise is based purely on experience, say,
a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field
would recognize as acceptable.
    We must therefore disagree with the Eleventh Circuit's holding that a trial judge may ask questions of the sort Daubert
mentioned only where an expert "relies on the application of scientific principles," but not where an expert relies "on
skill- or experience-based observation." 131 F.3d, at 1435. We do not believe that Rule 702 creates a schematism that
segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Life and the legal cases
that it generates are too complex to warrant so definitive a match.
    [3][4] To say this is not to deny the importance of Daubert's gatekeeping requirement. The objective of that
requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field. Nor do we deny that, as stated in Daubert, the
particular questions that it mentioned will often be appropriate for use in determining the reliability of challenged expert
testimony. Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to
go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the
specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
                                                              C




Professor John Barkai, U.H. Law School - Evidence                                                     Page - 154
    [5][6] The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide
whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides
whether or not that expert's relevant testimony is reliable. Our opinion in Joiner makes clear that a court of appeals is to
apply an abuse-of-discretion standard when it "review[s] a trial court's decision to admit or exclude expert testimony." 522
U.S., at 138-139, 118 S.Ct. 512. That standard applies as much to the trial court's decisions about how to determine
reliability as to its ultimate conclusion. Otherwise, the trial judge would lack the discretionary authority needed both to
avoid unnecessary "reliability" proceedings in ordinary cases where the reliability of an expert's methods is properly taken
for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning
the expert's reliability arises. Indeed, the Rules seek to avoid "unjustifiable expense and delay" as part of their search for
"truth" and the "jus[t] determin[ation]" of proceedings. Fed. Rule Evid. 102. Thus, whether Daubert's specific factors are,
or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude
to determine. See Joiner, supra, at 143, 118 S.Ct. 512. And the Eleventh Circuit erred insofar as it held to the contrary.
                                                                III
    [7] We further explain the way in which a trial judge "may" consider Daubert's factors by applying these considerations
to the case at hand, a matter that has been briefed exhaustively by the parties and their 19 amici. The District Court did not
doubt Carlson's qualifications, which included a masters degree in mechanical engineering, 10 years' work at Michelin
America, Inc., and testimony as a tire failure consultant in other tort cases. Rather, it excluded the testimony because,
despite those qualifications, it initially *1177 doubted, and then found unreliable, "the methodology employed by the
expert in analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such an analysis." Civ.
Action No. 93-0860-CB-S (S.D.Ala., June 5, 1996), App. to Pet. for Cert. 6c. After examining the transcript in "some
detail," 923 F.Supp., at 1518-519, n. 4, and after considering respondents' defense of Carlson's methodology, the District
Court determined that Carlson's testimony was not reliable. It fell outside the range where experts might reasonably differ,
and where the jury must decide among the conflicting views of different experts, even though the evidence is "shaky."
Daubert, 509 U.S., at 596, 113 S.Ct. 2786. In our view, the doubts that triggered the District Court's initial inquiry here
were reasonable, as was the court's ultimate conclusion.
    For one thing, and contrary to respondents' suggestion, the specific issue before the court was not the reasonableness in
general of a tire expert's use of a visual and tactile inspection to determine whether overdeflection had caused the tire's
tread to separate from its steel-belted carcass. Rather, it was the reasonableness of using such an approach, along with
Carlson's particular method of analyzing the data thereby obtained, to draw a conclusion regarding the particular matter to
which the expert testimony was directly relevant. That matter concerned the likelihood that a defect in the tire at issue
caused its tread to separate from its carcass. The tire in question, the expert conceded, had traveled far enough so that
some of the tread had been worn bald; it should have been taken out of service; it had been repaired (inadequately) for
punctures; and it bore some of the very marks that the expert said indicated, not a defect, but abuse through overdeflection.
 See supra, at 1172; App. 293-294. The relevant issue was whether the expert could reliably determine the cause of this
tire's separation.
    Nor was the basis for Carlson's conclusion simply the general theory that, in the absence of evidence of abuse, a defect
will normally have caused a tire's separation. Rather, the expert employed a more specific theory to establish the existence
(or absence) of such abuse. Carlson testified precisely that in the absence of at least two of four signs of abuse
(proportionately greater tread wear on the shoulder; signs of grooves caused by the beads; discolored sidewalls; marks
on the rim flange) he concludes that a defect caused the separation. And his analysis depended upon acceptance of a
further implicit proposition, namely, that his visual and tactile inspection could determine that the tire before him had not
been abused despite some evidence of the presence of the very signs for which he looked (and two punctures).




Professor John Barkai, U.H. Law School - Evidence                                                        Page - 155
    For another thing, the transcripts of Carlson's depositions support both the trial court's initial uncertainty and its final
conclusion. Those transcripts cast considerable doubt upon the reliability of both the explicit theory (about the need for
two signs of abuse) and the implicit proposition (about the significance of visual inspection in this case). Among other
things, the expert could not say whether the tire had traveled more than 10, or 20, or 30, or 40, or 50 thousand miles, adding
that 6,000 miles was "about how far" he could "say with any certainty." Id., at 265. The court could reasonably have
wondered about the reliability of a method of visual and tactile inspection sufficiently precise to ascertain with some
certainty the abuse- related significance of minute shoulder/center relative tread wear differences, but insufficiently precise
to tell "with any certainty" from the tread wear whether a tire had traveled less than 10,000 or more than 50,000 miles. And
these concerns might have been augmented by Carlson's repeated reliance on the "subjective[ness]" of his mode of
analysis in response to questions seeking specific information regarding how he could differentiate between a tire that
actually had been overdeflected and a tire that merely looked as though it had been. Id., at 222, 224-225, 285-286. They
would have been further augmented by the fact that Carlson said he had inspected the tire itself for the first time the
morning of his first deposition, and then only for a few hours. (His initial conclusions were based on photographs.) Id.,
at 180.
    *1178 Moreover, prior to his first deposition, Carlson had issued a signed report in which he concluded that the tire had
"not been ... overloaded or underinflated," not because of the absence of "two of four" signs of abuse, but simply because
"the rim flange impressions ... were normal." Id., at 335-336. That report also said that the "tread depth remaining was
3/32 inch," id., at 336, though the opposing expert's (apparently undisputed) measurements indicate that the tread depth
taken at various positions around the tire actually ranged from .5/32 of an inch to 4/32 of an inch, with the tire apparently
showing greater wear along both shoulders than along the center, id., at 432-433.
    Further, in respect to one sign of abuse, bead grooving, the expert seemed to deny the sufficiency of his own simple
visual-inspection methodology. He testified that most tires have some bead groove pattern, that where there is reason to
suspect an abnormal bead groove he would ideally "look at a lot of [similar] tires" to know the grooving's significance, and
that he had not looked at many tires similar to the one at issue. Id., at 212-213, 214, 217.
    Finally, the court, after looking for a defense of Carlson's methodology as applied in these circumstances, found no
convincing defense. Rather, it found (1) that "none" of the Daubert factors, including that of "general acceptance" in the
relevant expert community, indicated that Carlson's testimony was reliable, 923 F.Supp., at 1521; (2) that its own analysis
"revealed no countervailing factors operating in favor of admissibility which could outweigh those identified in Daubert,"
App. to Pet. for Cert. 4c; and (3) that the "parties identified no such factors in their briefs," ibid. For these three reasons
taken together, it concluded that Carlson's testimony was unreliable.
...
As we said before, supra, at 1977, the question before the trial court was specific, not general. The trial court had to decide
whether this particular expert had sufficient specialized knowledge to assist the jurors "in deciding the particular issues in
the case." ...
    The particular issue in this case concerned the use of Carlson's two- factor test and his related use of visual/tactile
inspection to draw conclusions on the basis of what seemed small observational differences. We have found no indication
in the record that other experts in the industry use Carlson's two-factor test or that tire experts such as Carlson normally
make the very fine distinctions about, say, the symmetry of comparatively greater shoulder tread wear that were necessary,
on Carlson's own theory, to support his conclusions. Nor, despite the prevalence of tire testing, does anyone refer to any
articles or papers that validate Carlson's approach...Of course, Carlson himself claimed that his method was accurate, but,
as we pointed out in Joiner, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of the expert."
...
    In sum, Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability
in light of the particular facts and circumstances of the particular case. The District Court did not abuse its discretionary
authority in this case. Hence, the judgment of the Court of Appeals is
    Reversed.




Professor John Barkai, U.H. Law School - Evidence                                                      Page - 156
STATE V. VLIET, 95 Haw. 94, 19 P.3d 42 (2001)
   [W]e hold that plain error was not committed by the court in admitting, pursuant to [HRE 702],
expert evidence of the "Widmark formula" for the purpose of ascertaining Defendant's blood
alcohol concentration (BAC) level at the time of his arrest....
   There being no reversible error, we affirm Defendant's September 9, 1999 judgment of
conviction and sentence for habitually driving under the influence of intoxicating liquor or drugs
(HRS 291-4.4) and of driving after license suspended or revoked for driving under the influence
of intoxicating liquor or drugs....
   On October 16, 1998, Sergeant Clarence Kenui of the Maui Police Department (MPD) was
driving on ... Molokai when he saw an orange pickup truck "weaving in the entire roadway."
Kenui stopped the vehicle at around 11:00 p.m., approached Defendant, who was driving, and
asked him "what the problem was." Defendant answered that he had taken medication and had also
been "drinking." Kenui observed that Defendant's eyes were bloodshot, his speech was slurred,
and he fumbled when looking for his driver's license....When asked if he had been drinking,
Defendant replied, "I had three beers, brah."...
   At about 11:39 or 11:40 p.m., approximately forty minutes after he was stopped by Officer
Kenui, Defendant voluntarily chose to take a breath test on an Intoxilyzer machine....The
Intoxilyzer indicated Defendant had a BAC of .079 grams of alcohol per 210 liters of breath,
expressed according to the percentage of weight per volume.
                                                 ***
   On his second point, Defendant argues that the court committed plain error in allowing Wong to
opine that Defendant's BAC was .090 as of 11:00 p.m., in the absence of a foundation establishing
that the formula used by Wong "met with the standards pertaining to the admission of expert
evidence" under Daubert.... As a result, Defendant maintains that the jury should have considered
only Defendant's .079 BAC intoxilyzer reading.
   In response, the prosecution argues (1) because Defendant did not object to Wong's testimony,
he waived any right to object on appeal, (2) the plain error rule should be applied with caution,
because a party must look to his or her counsel for protection and bear the cost of counsel's
mistakes, (3) even if Wong's testimony involves scientific knowledge, this court has not adopted
the Daubert test, (4) Wong's extrapolation of Defendant's BAC was a "mere application" of
Widmark's "well-established" alcohol elimination formula and, thus, under State v. Fukusaku, 85
Hawai'i 462, 946 P.2d 32, reconsideration denied, 85 Hawai'i 462, 946 P.2d 32 (1997), it involved
technical, rather than scientific, knowledge....
   Consequently, we must determine whether Wong's opinion, based as it was on the Widmark
formula, was properly admitted. We decide that it was, employing judicial notice of what we
believe to be general acceptance of the Widmark formula in the scientific community and by the
courts. See State v. Montalbo....
   We examine, first, Wong's application of the Widmark formula to this case. Wong testified that
Widmark's work was widely respected and used extensively for retrograde calculations of the
presence of alcohol in the body....
   The prosecution is correct in contending that this court has not adopted the Daubert test, see
Acoba v. General Tire...and we expressly refrain from doing so. However, because the HRE are
patterned on the Federal Rules of Evidence (FRE), construction of the federal counterparts of the
HRE by the federal courts is instructive...but obviously not binding on our courts....
   Daubert required a preliminary assessment by the trial court as to whether the "reasoning" or
"methodology" underlying proffered expert testimony was scientifically valid and could be applied
properly to the facts in issue...
   In Fukusaku, this court, construing HRE Rule 702, established that "expert testimony must be
(1) relevant and (2) reliable." ... Fukusaku maintained that " '[s]cientific knowledge' must be
distinguished from 'technical knowledge'[;] ... 'technical knowledge' ... involves the mere technical
application of well-established scientific principles and procedures." Id. Subsequently, in Kumho
Tire, the United States Supreme Court determined, within the meaning of the FRE, that there was
no relevant distinction between scientific and technical knowledge for purposes of admitting
expert evidence.

    In Ito, Judge Watanabe, writing for the Intermediate Court of Appeals (ICA), noted that "it is
possible, in light of Kumho Tire, supra, that the Hawai'i Supreme Court will revisit its ruling in
Fukusaku that calls for disparate treatment to be accorded to 'scientific' versus 'technical' evidence
under HRE Rules 702 and 703." 90 Hawai'i at 236 n. 7, 978 P.2d at 202 n. 7. According to the ICA,
however, Fukusaku could otherwise be viewed as consistent with Kumho Tire because Fukusaku
's reference to technical knowledge "amounted to taking judicial notice that the underlying
scientific principles and methodology employed in procuring the 'technical' hair and fiber evidence
were indeed reliable." Id.

   We reaffirm that the touchstones of admissibility for expert testimony under HRE Rule 702 are
relevance and reliability. The relevance requirement "primarily" stems from the precondition in
FRE Rule 702 that the "evidence or testimony 'assist the trier of fact to understand the evidence or
to determine a fact in issue.' " Daubert, 509 U.S. at 591, 113 S.Ct. 2786 (quoting FRE Rule 702).
 The trial judge must determine, then, whether the proffered expert evidence will indeed
accomplish that purpose. The reliability requirement refers to "evidentiary reliability--that is
trustworthiness." Id. at 590 n. 9, 113 S.Ct. 2786 (emphasis added). Under this prong, admission
of expert evidence "is premised on an assumption that the expert's opinion will have a reliable
basis in the knowledge and experience of his [or her] discipline." Id. at 592, 113 S.Ct. 2786. In
this context, the trial court is " 'assign[ed] ... the task of ensuring that an expert's testimony both
rests on a reliable foundation and is relevant to the task at hand.' " Kumho Tire, 526 U.S. at 141,
119 S.Ct. 1167 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). Thus, in affirming the
"Daubert gatekeeping requirement" in Kumho Tire, id. at 152, 119 S.Ct. 1167, the Court reiterated
that "[t]he objective of that requirement is to ensure the reliability and relevancy of expert
testimony." Id.

   In determining the relevancy issue, the trial courts' function is akin to the relevancy analysis
adopted in applying HRE Rules 401 (1993) and 402 (1993)....
   In determining the reliability of expert evidence within the context of the FRE, we believe that
the United States Supreme Court, in Kumho Tire, dispelled any impression that Daubert
established definitive factors to be applied in all cases. 526 U.S. at 151, 119 S.Ct. 1167. ...
   We adopt, then, a two-pronged standard of review for challenges to expert evidence proffered
under HRE Rule 702. ...
   Within this framework, we do not consider it essential or necessary that a trial court embark
upon a preliminary determination of whether the proffered expert testimony should be
characterized as scientific, technical, or otherwise specialized knowledge. In the textual context
of HRE Rule 702, a plain reading of the phrase "or other specialized knowledge" (emphasis added)
distinguishes the HRE Rule 702 requirements from those relating to lay testimony described in
HRE Rule 701 and is broadly inclusive of the examples of specialized knowledge, i.e., scientific
and technical, which precede it. Such a construction is consistent with the approach sensibly
adopted in Kumho Tire. Although, in Fukusaku, this court distinguished scientific from technical
knowledge, that decision essentially hinged on the conclusion that "the principle and procedures
underlying hair and fiber evidence are overwhelmingly accepted as reliable." ...
Discrete factors have been developed in our case law in aid of evaluating the reliability of expert
evidence in specific areas of the law...
   Nevertheless, we are hesitant to establish categories of factors that unnecessarily limit the scope
of discretion exercised by the trial courts...
   What we endorse is a "broad latitude," id. at 153, 119 S.Ct. 1167, granted the trial judge "in
deciding in a particular case how to go about determining whether particular expert testimony is
reliable." Id. at 152, 119 S.Ct. 1167.

   ....We believe Wong's testimony was relevant, because his opinion as to the extrapolation of
Defendant's .079 BAC, forty-two minutes after the traffic stop, would assist the trier of fact in
determining a fact in issue, that is, whether Defendant's BAC at the time of the traffic stop was .08
or greater and, hence, indicative of legal intoxication....
   Applying HRE 403, there is nothing in the record demonstrating that Wong's testimony was
"outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence." ...
   In his testimony, Wong provided a foundation establishing the reliability of Widmark's formula.
 He reported that Widmark was the first "one of many" who developed the alcohol elimination
formula, that a "number of people" had verified the formula, that the .015 elimination rate factor in
the formula was scientifically accepted, and that Widmark's alcohol elimination formula was
reasonably relied upon by experts in the field....
   We take judicial notice that Widmark's formula is widely viewed as reliable....
   ....[W]e may consider persuasive authorities and, as stated in Ito, "case law from other
jurisdictions to determine the reliability of a particular scientific test."...

   For the foregoing reasons, we affirm the court's September 9, 1999 judgment of conviction and
sentence.




Professor John Barkai, U.H. Law School - Evidence                               Page - 159
STATE v. WALLACE, 80 Hawai`i 382, 910 P.2d 695 (1996)

MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, J
[Opinion by] J. LEVINSON, Justice.

Wallace appeals [his] conviction following a bench trial in which he was convicted of promoting
a dangerous drug in the first degree in violation of Hawai`i Revised Statutes (HRS) §
712-1241(1)(a)(i) (1993) (Count One), prohibited acts related to drug paraphernalia in violation of
HRS § 329-43.5(a) (1993) (Count Two), and promoting a detrimental drug in the second degree in
violation of HRS § 712-1248(1)(c) (1993) (Count Three)….

Wallace contends that the prosecution "did not present competent evidence that the marijuana
weighed `one ounce or more' and that the white powder also weighed `one ounce or more' as
required by the [applicable] statutes."

"`It is well established, as a precept of constitutional as well as statutory law, that an accused in a
criminal case can only be convicted upon proof by the prosecution of every [material] element of
the crime charged beyond a reasonable doubt.' Possession of "one ounce or more" of substances
containing cocaine and marijuana are material elements of the offenses charged respectively in
Counts One and Three. Therefore, if Wallace's contention is correct, then there was insufficient
evidence to convict him of either charged offense.

[T]he evidence adduced at trial regarding the weight of the cocaine and marijuana derived from
expert testimony that relied upon scientific measurements obtained from calibrated weighing
instruments for its accuracy. "`Whether expert testimony should be admitted at trial rests within the
sound discretion of the trial court and will not be overturned unless there is a clear abuse of
discretion.'" State v. Maelega, 80 Hawai`i 172, 180, 907 P.2d 758, 766 (1995) (quoting State v.
Montalbo, 73 Haw. 130, 140-41, 828 P.2d 1274, 1281 (1992)).

Nevertheless, to be admissible, "expert testimony must be both relevant and reliable." Id., at 181,
907 P.2d at 767. The reliability of expert testimony supplying scientific evidence depends upon the
proper application of valid techniques grounded in valid underlying principles. Montalbo, 73 Haw.
at 136, 828 P.2d at 1279. It is axiomatic that such reliability is not possible in the absence of "a
sound factual foundation."

Thus, "[a] fundamental evidentiary rule is that before the result of a test made out of court may be
introduced into evidence, a foundation must be laid showing that the test result can be relied on as
a substantive fact." State v. Kemper, 80 Hawai`i 102, 105, 905 P.2d 77, 80 (App.1995). Part of the
foundational prerequisite for the reliability of a test result is a showing that the measuring
instrument is "in proper working order." See State v. Thompson, 72 Haw. 262, 263, 814 P.2d 393,
395 (1991) ….

With respect to Wallace's second contention, his objection at trial to Officer Matsuura's testimony
regarding the gross weight of the cocaine did not challenge the accuracy of the certified gram scale.

Professor John Barkai, U.H. Law School - Evidence                                Page - 160
Although that testimony, lacking sufficient foundation, would have been inadmissible in the face
of an adequately preserved objection. "`[t]he rule is well settled that evidence even though
incompetent, if admitted without objection or motion to strike, is to be given the same probative
force as that to which it would be entitled if it were competent.'" 2 Wharton's Criminal Evidence
§ 265 n. 3 (14th ed. 1986) [hereinafter referred to as "Wharton"]. We therefore hold, under the
circumstances of this appeal, that the issue of the accuracy of the scale has been waived.

[The] testimony [at issue] was inadmissible. Nonetheless no objection was made to [its] admission
and the issue is now being raised for the first time on appeal.
It is the general rule that evidence to which no objection has been made may properly be considered
by the trier of fact and its admission will not constitute ground for reversal. It is equally established
that an issue raised for the first time on appeal will not be considered by the reviewing court. Only
where the ends of justice require it, and fundamental rights would otherwise be denied, will there
be a departure from these principles. [Hawai`i Rules of Penal Procedure (HRPP) Rule 52(b)
(1994) ]. We find no such justification here.

b. Evidence of net weight

Wallace challenges the circuit court's admission of Chinn's testimony regarding the net weight of
the cocaine, as measured by the electronic balance, over his objection at trial that an inadequate
foundation had been laid as to the accuracy of the instrument. In support of his position, Wallace
relies exclusively on State v. Bannister, 60 Haw. 658, 594 P.2d 133 (1979).

In Bannister, this court reversed the defendant's conviction of theft in the first degree, holding that
the prosecution had failed to prove that the defendant had stolen shorts exceeding $200.00 in value
from a store, thus failing to prove every material element of the charged offense beyond a
reasonable doubt. At trial, the evidence of the value of the stolen shorts consisted solely of the store
manager's testimony that fifty-three pairs of shorts were missing and that the retail value of the
shorts was $6.50 per pair. The store manager derived the number of missing garments by
subtracting the number that she counted after the theft from the number apparently counted by the
"receiving man," who, one day prior to the theft, had recorded the number on an invoice. The
invoice, which had not been brought to court, was not offered into evidence. Defense counsel
objected to the store manager's testimony on the basis that it lacked a proper foundation.

Agreeing with the defendant, the Bannister court held, inter alia, that:

    Testimony based on information supplied by another person that is not in evidence is
inadmissible. The rationale is that the witness' knowledge is based on hearsay evidence and the
trier of fact is unable to test the source's trustworthiness. This proposition is subject to the regular
hearsay exceptions.

    The manager's testimony was based solely upon the receiving man's recording on the invoice.
The invoice was not in evidence. None of the hearsay exceptions applied [to the store manager's
testimony.] Thus, the testimony was inadmissible.


Professor John Barkai, U.H. Law School - Evidence                                 Page - 161
    Since the manager's testimony was the only evidence of the number of shorts stolen that would
support the conviction and a necessary element of the crime was the value of the stolen goods, the
State failed to prove every element of the crime beyond a reasonable doubt.

Id. at 659-60, 594 P.2d at 134-35. Based on the foregoing analysis, the Bannister court reversed the
defendant's conviction and remanded the matter to the circuit court for the entry of a judgment of
acquittal.

By analogy, Wallace argues that the prosecution failed to prove beyond a reasonable doubt that the
cocaine seized from his vehicle weighed one ounce or more because Chinn's testimony concerning
the accuracy of the electronic balance used to weigh the cocaine was inadmissible. Specifically,
Wallace urges that Chinn's testimony regarding the net weight of the cocaine was inadmissible
because (1) Chinn had no personal knowledge that the electronic balance had been properly
calibrated, and (2) any testimony pertaining to such calibration was based on hearsay obtained
from the person who calibrated the instrument. We agree.

As the trial court noted, Chinn apparently had personal knowledge that the electronic balance was
calibrated annually; his testimony to that effect was therefore admissible. HRE 602 (1993).
However, by his own admission, Chinn lacked personal knowledge that the balance had been
correctly calibrated and merely assumed that the manufacturer's service representative had done so.
The service representative did not testify at trial regarding his calibration of the balance, nor did the
prosecution, through a custodian of records, offer any business record of the manufacturer
reflecting proper calibration of the balance. There being no reliable evidence showing that the
balance was "in proper working order," the prosecution failed to lay "a sound factual foundation"
that the net weight of the cocaine measured by the balance was accurate. See Montalbo, 73 Haw.
at 138, 828 P.2d at 1280. Therefore, because inadequate foundation was laid to show that the
weight measured by the balance could "be relied on as a substantive fact," see Kemper, 80 Hawai`i
at 105, 905 P.2d at 80, Chinn's assumption that the balance was accurate was based on
inadmissible hearsay. Accordingly, we hold that the circuit court clearly abused its discretion in
admitting Chinn's testimony regarding the net weight of the cocaine.

As noted above, a material element of the offense of promoting a dangerous drug in the first degree,
is that the cocaine that Wallace possessed was of an aggregate weight of one ounce or more.
Because that material element of the offense is not supported by substantial and admissible
evidence, we hold that the prosecution failed to adduce sufficient evidence to prove every element
of the offense beyond a reasonable doubt and that Wallace's conviction must be vacated.

Promoting a dangerous drug in the third degree as defined by HRS § 712-1243(1) (1993) is a lesser
included offense of promoting a dangerous drug in the first degree as charged in Count One. The
offense being a class C felony, it is "of a class and grade lower than the greater [charged] offense."
By its express terms, and for purposes of HRS § 701-109(4)(a), it is impossible to commit the
offense of promoting a dangerous drug in the first degree in violation of HRS § 712-1241(1)(a)(i)
without also committing the offense of promoting a dangerous drugs in the third degree. And for
purposes of HRS § 701-109(4)(c), promoting a dangerous drug in the third degree differs from

Professor John Barkai, U.H. Law School - Evidence                                 Page - 162
promoting a dangerous drug in the first degree only in the respect that a less serious injury or risk
of injury to the same public interest (i.e., "public health and morals," suffices to establish its
commission.

Moreover, "[t]here was sufficient evidence presented at trial to support ... [this lesser] included
offense[]." Malufau I, 80 Hawai`i at 133, 906 P.2d at 619. [T]he purged trial record is supported
by substantial evidence that Wallace knowingly possessed cocaine. Ipso facto, there was
substantial and admissible evidence in the purged trial record that Wallace knowingly possessed
cocaine "in any amount," thereby establishing the offense of promoting a dangerous drug in the
third degree. See supra note 34.

For the foregoing reasons, we hold that, upon remand of Count One to the circuit court, a judgment
should be entered convicting Wallace of promoting a dangerous drug in the third degree as defined
by HRS § 712-1243(1).




Professor John Barkai, U.H. Law School - Evidence                              Page - 163
STATE v. MANEWA, 115 Hawai'i 343, 167 P.3d 336 (2007)
NAKAYAMA, ACOBA, and DUFFY, JJ.; with LEVINSON, J., Concurring Separately, and with
whom MOON, C.J., joins. Opinion of the Court by ACOBA, J.

Defendant was convicted of promoting a dangerous drug in the first degree and promoting a
dangerous drug in the second degree and was sentenced to a term of imprisonment of twenty (20)
years with a mandatory minimum of one (1) year for Count 8; and a term of imprisonment for ten
(10) years with a mandatory minimum six months for Count 9.. Defendant appealed. The
Intermediate Court of Appeals affirmed….

[Honolulu Police Department criminalist,] Hassan Mohammed [ (Mohammed) ], examined,
analyzed, and reported on the drug evidence. [Mohammed] was “attached to the drug analysis unit
at the Honolulu Police Department” for over ten years. As a criminalist with the Honolulu Police
Department, [Mohammed's] duties consisted of the analysis and identification of controlled
substances. [At trial, Respondent offered Mohammed] as an expert in the field of drug analysis and
identification. ... [While under direct examination,] Mohammed maintained that he “routinely
weigh[s] every piece of evidence that comes in” as part of his responsibility in analyzing and
identifying illegal drugs….

Mohammed was qualified as an expert in drug analysis and identification. Mohammed used the
GCMS [gas chromatograph mass spectrometer] to identify the crystalline substances recovered as
methamphetamine. Mohammed testified that "a routine check" was done of the GCMS "each and
every morning" "to ensure that all the parameters are within manufacturer specifications."
Mohammed related "if any parameter is out of spec, we do not use it until it is rectified." Thus, the
record indicates that there was an established manufacturer's procedure that could be conducted by
the user to ensure that the GCMSs were in working order according to the manufacturer's
specifications.

Because the evidence indicated the GCMSs were operating "within the manufacturer
specification(s)," under this procedure Mohammed's own testimony supported the conclusion that
the GCMSs were in proper working order at the time the evidence was tested. Wallace, 80 Hawai`i
at 407, 910 P.2d at 720. Therefore, Mohammed's assertion on cross-examination that "I do have
personal knowledge because I would not have used any of the instruments if they were not in
proper working condition in that particular days," [sic] is consistent with the "personal knowledge"
necessary to establish that the GCMSs were in proper working condition. Based on the foregoing
analysis, a proper foundation for the identity of the crystalline substances was laid. Consequently,
the court did not abuse its discretion in allowing Mohammed to testify as to the identity of the
crystalline substances.

IX…. However, as to the reliability of the analytic balance, the ICA distinguishes Wallace on the
ground the expert in that case "relied on the assumption that the manufacturer's representative"
"had . . . properly calibrated" his scale, whereas "Mohammed . . . testified . . . he personally verified
and validated the balance monthly," "satisfy[ing]" that "the balance was working properly."
However, the evidence failed to establish (1) that Mohammed had any training or expertise in

Professor John Barkai, U.H. Law School - Evidence                                 Page - 164
calibrating the balance, (2) that the balance had been properly calibrated by the manufacturer's
service representatives, (3) that there was an accepted manufacturer's established procedure for
"verify[ing] and validat[ing]" that the balance was in proper working order and that if such a
procedure existed, that Mohammed followed it, and (4) that his balance was in proper working
order at the time the evidence was weighed. Accordingly, as to the balance and the related
weighing of the methamphetamine, it appears the ICA gravely erred.

X. A. Mohammed was not qualified as an expert in the calibration of the analytical balance.
Mohammed used the balance to weigh the evidence although he did not know how its mechanism
functioned. The balance is an electronic instrument. Mohammed himself did not know how to
calibrate the balance or how to service it. He indicated that he had never calibrated the balance and
that he would not be able to service the machines, although, as noted before, he had been trained to
ensure that the GCMS and FTIR instruments were in working order.

     Q [DEFENSE COUNSEL]. Okay. And you've never worked at calibrating these
     instruments?
     A. No.
     Q. So basically you can operate these machines, correct, but you cannot maintain it [sic];
     correct?
     A. I wouldn't be able to service them but . . . I have been trained to ensure that the GCMS
     and FTIR are in working condition.


(Emphases added.) Further, on cross examination, defense counsel asked Mohammed, "[Y]ou
cannot testify to the proper servicing of all three instruments because you, yourself, personally
didn't do the servicing; correct?" Mohammed answered, "That would be correct. I wouldn't be able
to testify to the servicing of the instruments."

Like forensic chemist Chinn in Wallace, Mohammed "had personal knowledge that the electronic
balance was calibrated [semi-]annually." 80 Hawaii at 412, 910 P.2d at 725. However, as in
Wallace, there was no evidence that Mohammed had personal knowledge that the balance had been
correctly calibrated. Defense counsel addressed this issue during cross examination:

     Q. [DEFENSE COUNSEL]: Okay. So as far as you know, the calibration and servicing
     was done, correct?
     A. [MOHAMMED]: Yes, sir
     Q. But you, yourself, you don't have the personal knowledge of the calibration and
     the . . . servicing: correct?
     A. Once he is finished calibrating it then he fills out a form and indicates that it was in
     proper working condition prior to his testing and found it working after the servicing,
     too. The first thing he does is to make sure that it was in working condition when he
     arrives.
     ....
     Q. And he fills out a form for all three, analytic balance, GCMS, FTIR?

Professor John Barkai, U.H. Law School - Evidence                              Page - 165
     A. That's correct. . . .
     Q. But you don't have the forms with you now; right?
     A. I haven't brought it, but it's available.
     Q. But you don't have them now?
     A. No, I was not required to bring them.
     Q. So whatever information as to the proper servicing or proper calibration, that's
     contained on these forms; correct?
     A. That's correct.
     Q. Which you don't have right now; correct?
     A. That's correct.


(Emphases added.) Based on these statements by Mohammed, he "lacked the personal knowledge
that the balance had been correctly calibrated and merely assumed that the manufacturer's service
representative had done so." Wallace, 80 Hawai`i at 412, 910 P.2d at 725.

Again, as in Wallace, Respondent did not call the manufacturer's service representative to testify to
calibration of the balance. Id. Moreover, as in Wallace, Respondent did not offer any business
records of the manufacturer indicating a correct calibration of the balance. This court in Wallace
noted, that "Wallace concedes in his brief that `[a] document provided by the calibrating agency
showing the name of the person calibrating the [balance], that he was qualified, [and] that [the
balance] was calibrated on a certain date may well have fallen under the hearsay exception[s
relating to] business records, but this was not [offered into evidence.]'" Id. at 412 n. 28, 910 P.2d
at 725 n. 28 (some brackets in original and some added). Although available per the testimony of
Mohammed, Respondent did not offer such records into evidence. Accordingly, as in Wallace,
Respondent failed to offer "through a custodian of records, . . . any business record of the
manufacturer reflecting proper calibration of the balance." Id. at 412, 910 P.2d at 725 (citation
omitted).

Given the foregoing, an "inadequate foundation was laid to show that the weight measured by the
balance could `be relied on as a substantive fact,' [Mohammed's] assumption that the balance was
accurate was based on inadmissible hearsay." Id. (citations omitted).

Respondent and the ICA apparently rely on Mohammed's assertion that "[w]e have a manufacturer
representative who checks out and services the balance two times a year, and I have my own
personal balance which I verify and validate once a month and we so record it[,]" (emphasis
added), as distinguishing this case from Wallace. The ICA placed emphasis on the fact that
"Mohammed . . . testified that he personally verified and validated the balance monthly."

     Q. [PROSECUTOR] Are you familiar, if you know, whether or not any procedures or
     there's any protocol to determine whether or not your balance is operating properly?
     A. Yes, sir.
     Q. Will you please briefly explain to the jurors what this process is.
     A. We have a manufacturer representative who checks out and service the balance two
     times a year, and I have my own personal balance which I verify and validate once a

Professor John Barkai, U.H. Law School - Evidence                              Page - 166
     month and we so record it.
     Q. Is there anything based on your experience with this balance, 30 years of experience,
     that could indicate to you whether or not the balance is not working properly?
     A. No, I have not come across that even once.

(Emphases added.) This, the ICA concluded, "satisfies the third prong of the Long" test. SDO at 7;
Long, 98 Hawaii at 355, 48 P.3d at 602 (stating that the third prong was "whether the instrument is
in proper working order"). Similarly, in its answering brief Respondent maintained that
Mohammed "took the necessary steps . . . to insure that his . . . balance was in . . . working order."
As emphasized above, Respondent also alludes to the fact that Mohammed was an expert and his
opinion had been "based on his field of expertise," he had worked on the balance for over 25-30
years, the balance was used in the regular course of business.

Thus, as to the procedure or protocol to determine whether the balance was working properly,
Mohammed first asserted that a service representative checked the balance twice a year. However,
as mentioned before, Mohammed did not know how to calibrate or service the balance, no service
representative testified as to his or her calibration of the balance, and no business record was
introduced into evidence in lieu of such testimony.

As to Mohammed's assertion that the balance was in "proper working order," because he "verified
and validat[ed it] once a month," Respondent failed to produce evidence of any manufacturer's
established procedure for such validation and verification or of what such procedure involved.
Mohammed's statement that he "in his experience" had "not come across" anything "that could
indicate whether or not the balance is not working properly" in 30 years is ambiguous. It suggests
that either there was nothing which would indicate whether the balance was working properly or
not, or that there were indicia that would allow Mohammed to determine whether the balance was
operating properly. The testimony thus begs the question of whether there was a manufacturer's
established procedure for verifying that the balance was working properly and, if so, that
Mohammed followed that particular procedure or, if there was no such procedure in place or
designated by the balance's manufacturer, that the balance could be accepted as reliable based
simply on the semi-annual manufacturer service inspections. There was no evidence to establish
either was the case, leaving the testimony insufficient to establish the reliability of the balance.

By contrast, as mentioned before, Mohammed testified "a routine check" was done of the GCMS
"each and every morning" "to ensure that all the parameters are within manufacturer
specifications." Respondent submitted no evidence of a similar procedure to confirm that the
balance was operating within the parameters of the manufacturer's specifications before the time
of the weighing.Thus, although the record indicates that Mohammed was trained to follow a
certain procedure to ensure that the GCMSs were in working order, it fails to show that there was
a manufacturer's accepted procedure for the user of the balance to implement to ensure the balance
was in working order.

Therefore, Mohammed's assertion on cross-examination that "I do have personal knowledge
because I would not have used any of the instruments if they were not in proper working condition
in that particular days," [sic] is inconsistent with the "personal knowledge" necessary to establish

Professor John Barkai, U.H. Law School - Evidence                               Page - 167
that the balance was in proper working condition. Based on the foregoing analysis a proper
foundation for the weight of the methamphetamine was not established.

Disregarding the erroneously admitted weight of the methamphetamine, the record is not legally
sufficient to support Petitioner's convictions for the charges….

As recounted supra, the evidence establishes that Petitioner knowingly possessed
methamphetamine. “A person commits the offense of promoting a dangerous drug in the third
degree if the person knowingly possesses any dangerous drug in any amount.” HRS § 712-1243(1).
Thus, on remand of Count 9, the court shall enter judgment convicting Petitioner of Promoting a
Dangerous Drug in the Third Degree, HRS § 712-1243(1). Accordingly, the case is remanded for
resentencing as the court may, in its discretion, determine appropriate




Professor John Barkai, U.H. Law School - Evidence                           Page - 168
STATE v. ASSAYE, 216 P.3d 1227 (2009)

MOON, C.J., NAKAYAMA, and DUFFY, JJ., Circuit Judge MARKS, in Place of
RECKTENWALD, J., Recused, and ACOBA, J., Concurring Separately. Opinion of the Court by
NAKAYAMA, J.

Assaye has applied for a writ of certiorari from the Intermediate Court of Appeals' order affirming
the District Court of the First Circuit's ("trial court's") judgment convicting Assaye of the offense
of excessive speeding. Assaye asserts that the ICA gravely erred (1) "in concluding that [the]
prosecution' laid the requisite foundation for the admissibility of the laser gun reading pursuant to
State v. Stoa, 112 Hawai`i 260, 265, 145 P.3d 803, 808 (App.2006)," and (2) "by failing to
recognize that the [prosecution] did not lay the requisite foundation for admissibility of the laser
gun reading as required by State v. Wallace, 80 Hawai`i 382, 910 P.2d 695 (1996), and State v.
Manewa, 115 Hawai`i 343, 167 P.3d 336 (2007)." For the following reasons, we reverse the trial
court's February 27, 2008 judgment because the ICA's decision is obviously inconsistent with both
this court's decision in Manewa and its own decision in State v. Ito, 90 Hawai`i 225, 978 P.2d 191
(App.1999).

I. BACKGROUND
Honolulu Police Officer Jeremy Franks ("Officer Franks") testified that he was assigned "to the
night enforcement detail solo bike, motorcycle unit," and in the evening of September 5, 2007, to
"speed enforcement on the H-1 Freeway eastbound by the Radford pedestrian overpass." He
testified further that he was equipped with and certified to use a "laser LTI 2020 Ultralight" ("laser
gun"), and used it on a vehicle that was traveling toward his stationary location on the freeway at
a rate of speed that he observed to be "faster than the speed of traffic." Officer Franks testified that
he aimed his laser gun at the front of this vehicle and his "laser" gave him "a reading of ninety miles
per hour." Officer Franks testified that the posted speed limit for the stretch of freeway that he was
monitoring that evening was fifty-five miles per hour. Officer Franks testified that he then
proceeded to conduct a "traffic stop" to issue a citation to the driver of the vehicle, and identified
Assaye as the person to whom the citation was issued.

At trial, Officer Franks testified, as follows, with regard to the proper functioning of his laser gun:

Q. Were you equipped with any type of device to measure the speed of vehicles that day?
A. Yes.
Q. What kind of a device was it?
A. The laser LTI 2020 Ultralight.
Q. Okay. Are you certified to use the LTI 2020?
A. Yes.
Q. Who were you certified by?
A. My instructor was Sgt. Ryan Nishibun.
Q. Okay. And was the certification valid on September 5, 2007?
A. Yes.
Q. And were you instructed in the testing and operating of the device?

Professor John Barkai, U.H. Law School - Evidence                                Page - 169
A. Yes.
Q. How many hours of instructions did you receive?
A. Four.
Q. Okay. On that day, ... did you test your ultralight 2020 laser gun?
A. Yes, prior to my shift.
Q. Okay. And how did you test the gun?
A. I conduct four tests at the police main station.
....
Q. And did you do all those tests that day?
A. Yes.
Q. And what was the results of those tests?
A. It was functional and working properly. No errors, messages or anything like that on the—it was
functional.
[DEFENSE COUNSEL:] And your Honor, object as to lack of foundation and—
....
... Your Honor, the testimony that under Maneva, this is not sufficient to show that the laser was
properly calibrated and working correctly that day. In the Maneva case, the situation was a scale, it
was an electronic scale that the person, the expert testifying in that case had been trained to use, had
used for twenty years.
....
The supreme court said that in Manewa that that evidence should have been suppressed, or—well,
that evidence should not have been admitted given that the, that witness could not actually lay the
proper foundation that that particular device was properly calibrated and working correctly that day.
Given all that, and as in that case, the scale was an essential element because that was about the
weight of amount of drugs.

In this case, the actual reading of a laser device is an essential element cause if he's, if it falls below
a certain number, above a certain number, the defendant is either guilty or not guilty. Beyond that,
your Honor, I would like to voir dire him as to his qualifications.
....
 THE COURT: Well, I'm going to, if that's a motion to strike his testimony or an objection to the
testimony, I'm gonna deny the motion, but will allow you to cross-examine the officer, and I just
state for the record that I see a big difference between a scale ... weighing narcotics.... and a laser,
whether a laser is working properly. The technology has been approved by our appellate court.
....
                III. DISCUSSION
A. Pursuant To Manewa, Proof That the Laser Gun Was Tested According To
Manufacturer Recommended Procedures Is Required To Establish a Sufficient Foundation
For the Speed Reading Given By the Same Laser Gun.
Assaye asserts that the ICA gravely erred in affirming the trial court's decision to admit Officer
Franks' laser gun reading into evidence because the prosecution allegedly failed to establish an
adequate foundation for the proffered evidence. More specifically, Assaye asserts that the
prosecution "failed to adduce evidence as to any manufacturer-recommended testing procedures."
Consequently, he asserts that the prosecution "could not prove that the [laser gun] had been tested

Professor John Barkai, U.H. Law School - Evidence                                   Page - 170
according to accepted procedures and to be functioning properly."

Officer Franks testified that he conducted four tests prior to his shift in order to determine whether
the laser gun he was going to use on September 5, 2007 was "functional and working properly."
These tests included the "self-test," the "display test," the "scope alignment test," and the "delta
distance test." Officer Franks testified further that he was certified to use the laser gun on
September 5, 2007, that he was "instructed in the testing and operating of the device" through a
four-hour class that was taught by another police officer who was also "certified," and that he has
never "had any problems" with the laser gun since he was assigned to the "motorcycle detail" in the
past "year and three months."

In light of the foregoing, simply applying Stoa's reasoning and holding to this case would result in
the conclusion that the four tests conducted by Officer Franks were in fact "accepted procedures to
determine [whether] the [laser gun] was functioning properly" on September 5, 2007. However,
we hold that the ICA's decision in this case, and by implication its decision in Stoa, is obviously
inconsistent with this court's decision in Manewa insofar as Manewa requires the prosecution to
prove that the four tests conducted by Officer Franks were procedures recommended by the
manufacturer for the purpose of showing that the particular laser gun was in fact operating properly
on September 5, 2007.

Crucial to this court's holding in Manewa was the expert's testimony that "there was an established
manufacturer's procedure that could be conducted by the user to ensure that the GCMSs were in
working order according to the manufacturer's specifications." Id. (emphases added). In this case,
the record is silent as to any manufacturer recommended procedure that could be used to determine
the accuracy of the laser gun on September 5, 2007.

The prosecution asserted in its answering brief that Officer Franks "had calibrated the LTI 20-20
UltraLyte according to established procedure for verifying and validating that it was in proper
working order...." Although Officer Franks testified that he was "certified" to use the laser gun on
September 5, 2007, and he was "instructed in the testing and operating of the device," the
prosecution does not point to anywhere in the record to indicate that the four tests that Officer
Franks testified to conducting were recommended procedures by the manufacturer for the purpose
of showing that the laser gun was in fact operating properly on September 5, 2007. See Manewa,
115 Hawai`i at 354, 167 P.3d at 347. Therefore, concluding that Officer Franks had tested the laser
gun according to manufacturer recommended procedures would invite the same kind of
assumption that this court expressly rejected as inadmissible hearsay in both Wallace and Manewa.
See id. at 355, 167 P.3d at 348 (holding that Mohammed's "assumption that the [analytical] balance
was accurate was based on inadmissible hearsay" because he "lacked the personal knowledge that
the balance had been correctly calibrated and merely assumed that the manufacturer's service
representative had done so" (quoting Wallace, 80 Hawai`i at 412, 910 P.2d at 725 (internal
quotation marks omitted)))….

In light of the foregoing, we hold that an "inadequate foundation was laid to show that the [speed]
measured by the [laser gun] could `be relied on as a substantive fact[.]'" Manewa, 115 Hawai`i at

Professor John Barkai, U.H. Law School - Evidence                               Page - 171
356, 167 P.3d at 349 (quoting Wallace, 80 Hawai`i at 412, 910 P.2d at 725). Accordingly, we hold
that the ICA erred in affirming the trial court's decision that Officer Franks' testimony provided a
proper foundation for the speed reading given by the laser gun, and the trial court abused its
discretion by concluding as such. See Loa, 83 Hawai`i at 348, 926 P.2d at 1271.

B. Officer Franks' Testimony Is Insufficient To Prove That He Was Qualified By Training
and Experience To Operate the Laser Gun.

Assaye asserts that the ICA gravely erred in affirming the trial court's decision to admit the laser
gun's speed reading into evidence because Officer Franks' testimony was insufficient to prove that
he was qualified by training and experience to operate the laser gun. The prosecution asserted that
Officer Franks' "unrebutted testimony that he was instructed and certified to use the LTI 20-20
Ultralyte by Sergeant Ryan Nishibun was sufficient to establish" that he was qualified by training
and experience to operate the laser gun.

To reiterate, this court has said that "[t]he accuracy of a particular radar unit can be established by
showing that the operator tested the device in accordance with accepted procedures to determine
that the unit was functioning properly and that the operator was qualified by training and
experience to operate the unit." Tailo, 70 Haw. at 582, 779 P.2d at 13 (emphasis added). The ICA
extended this court's analysis in Tailo to apply to the accuracy of a speed reading given by a
particular laser gun. See Tailo, 70 Haw. 580, 779 P.2d 11….

As discussed above, the prosecution must prove that the laser gun's accuracy was tested according
to procedures recommended by the manufacturer. See Manewa, 115 Hawai`i at 354, 167 P.3d at
347. Insofar as an officer's training is concerned, we hold that the same burden of proof is applied
to the issue of whether the officer is qualified by training and experience to operate the particular
laser gun; namely, whether the nature and extent of an officer's training in the operation of a laser
gun meets the requirements indicated by the manufacturer.[9] See Ito, 90 Hawai`i at 244, 978 P.2d
at 210. Therefore, without a showing of the nature and extent of the "certifi[cation]," testimony
showing merely that a user is "certified" to operate a laser gun through instruction given by a
"certified" instructor is insufficient to prove that the user is qualified by training and experience to
operate the laser gun.

To reiterate, Officer Franks testified that he was "certified" to use the laser gun on September 5,
2007, that he was "instructed in the testing and operating of the device" through a four-hour class
that was taught by another police officer who was also "certified," and that he has never "had any
problems" with the laser gun since he was assigned to the "motorcycle detail" in the past "year and
three months." In addition to the testimony quoted supra, during cross-examination, Officer
Franks testified, as follows:

Q.... And you never got any kind of training program on the mainland or with the manufacturer,
just what they offered here in Hawaii, the four-hour class?
A. Yes, the certified instructors from the Laser Technology. They get certified and they instruct us
on how to be operators.

Professor John Barkai, U.H. Law School - Evidence                                Page - 172
Notwithstanding the foregoing testimony, the prosecution has not shown whether the training that
Officer Franks received "meets the requirements" of the manufacturer of the laser gun. See id. In
this regard, Officer Franks "did not explain the nature and extent of the training" he received. See
Mitchell, 94 Hawai`i at 398, 15 P.3d at 324; see also Ito, 90 Hawai`i at 244, 978 P.2d at 210.
Therefore, we cannot say that the prosecution satisfied its burden of proving that Officer Franks
was "qualified by training and experience to operate the" laser gun. See Tailo, 70 Haw. at 582, 779
P.2d at 13.

Inasmuch as the ICA's decision in this case, and by implication its decision in Stoa, suggests that
Officer Franks' testimony is sufficient to prove that he is in fact "qualified by training and
experience to operate the" laser gun, we overrule Stoa insofar as it is contrary to our holding that
the ICA's decision is obviously inconsistent with its decision in Ito. Accordingly, we hold that the
trial court abused its discretion by concluding that Officer Franks' testimony provided a proper
foundation for the speed reading given by the laser gun. See Loa, 83 Hawai`i at 348, 926 P.2d at
1271.
***
Therefore, we hold that Assaye's conviction must be reversed.




Professor John Barkai, U.H. Law School - Evidence                             Page - 173
STATE v. FITZWATER, 122 Hawai„i 354, 227 P.3d 520 (2010)

MOON, C.J., NAKAYAMA, DUFFY, and RECKTENWALD, JJ.; with ACOBA, J., Concurring
Separately and Dissenting. Opinion by RECKTENWALD, J.

Fitzwater was convicted of excessive speeding in violation of Hawai'i Revised Statutes (HRS) §
291C-105(a)(1) (2007) [driving at a speed 30 miles per hour or more than the speed limit]. At
Fitzwater's trial a Honolulu police officer [Officer Ah Yat] testified that he followed Fitzwater's
motorcycle after he observed Fitzwater traveling at what appeared to be a high rate of speed.
According to the officer, the speedometer in his police vehicle indicated that Fitzwater was
traveling 70 miles per hour in an area where the speed limit was 35 miles per hour. The officer
further testified that a "speed check" had been conducted to determine the accuracy of the police
vehicle's speedometer about five months before the incident involving Fitzwater. Over the
objection of Fitzwater's counsel, a card purporting to document the results of that speed check was
admitted into evidence, and the officer was allowed to testify that the results of the speed check
showed that the speedometer was accurate….

A. The circumstances of the creation of the speed check card did not preclude its admission
as a business record under HRE Rule 803(b)(6)

Fitzwater first argues that the speed check card was inadmissible as a business record under HRE
Rule 803(b)(6) because it was created for the purposes of litigation, citing Palmer v. Hoffman, 318
U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and Melendez-Diaz v. Massachusetts, ___ U.S. ___,
129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).…However, the circumstances of the creation of the
speed check card here are quite different from those in Palmer and other cases in which documents
have been held inadmissible as business records. Such documents were found to be inadmissible
because they were created in response to a historical occurrence, and in anticipation of litigation on
that specific incident. Since they were created with the motivation of prevailing against a particular
party, their trustworthiness was inherently questionable….

Thus, the speed check card at issue here is distinguishable from the accident report in Palmer and
the documents discussed in the foregoing cases. While those documents were created solely for the
purposes of litigation in a particular case, the speed check card here was not created for use in a
particular dispute. Rather, the speed check card is more akin to documents that reflect the results
of regularly conducted tests, which have been held to be admissible as business or government
records even if they are frequently used in litigation….

Although Ah Yat testified that speed check cards were created with the understanding that they
would be used in prosecuting speeding cases, the card at issue here was created in a non-adversarial
setting about five months prior to the alleged speeding incident, and was not created for the
specific purpose of prosecuting Fitzwater. Thus, the circumstances of its creation did not preclude
its admission as a business record under HRE Rule 803(b)(6).

B. The State did not establish a sufficient foundation to admit the speed check card as a

Professor John Barkai, U.H. Law School - Evidence                               Page - 174
business record under HRE Rule 803(b)(6)

At trial the speed check, and to the admission of the speed check card itself. Fitzwater argued,
Fitzwater objected to the admission of Ah Yat's testimony about the results of that this evidence
was hearsay, and that there was insufficient foundation for its admission since Ah Yat was not a
"qualified witness" who could properly authenticate the card as a business record under HRE Rule
803(b)(6). The district court admitted the testimony and the card over Fitzwater's objection.

In his application [of certiorari] to this court, Fitzwater notes, inter alia, that Ah Yat did not take the
vehicle to the shop, was not present when the card was created, and had no personal knowledge
about the calibration testing.

In order for a record to be admissible under HRE Rule 803(b)(6), the proponent must establish a
sufficient foundation. Specifically,

     [t]he proponent must establish (1) that the record evidences "acts, events, conditions,
     opinions, or diagnoses"; (2) that the record was made in the course of a regularly
     conducted activity; and (3) that the record was made "at or near the time" of the acts or
     events that are recorded.
see HRE Rule 803(b)(6).

Furthermore, "[t]he record must also survive the discretionary untrustworthiness exclusion of the
rule."].

The necessary foundation can be established "by the testimony of the custodian or other qualified
witness, or by certification that complies with rule 902(11) or a statute permitting certification...."
HRE Rule 803(b)(6). Therefore, a speed check card such as the one here can be authenticated by:
(1) the testimony of the custodian of the card, (2) testimony from a qualified witness, or (3) a
certification that complies with HRE Rule 902(11) or other statute permitting certification. The
record here does not include such a certification, nor does the record reflect that Ah Yat was
testifying as a custodian of the speed check card. Rather, it appears that Ah Yat's testimony was
offered as the testimony of a qualified witness in order to authenticate the speed check card.

A person can be a "qualified witness" who can authenticate a document as a record of regularly
conducted activity under HRE Rule 803(b)(6) or its federal counterpart even if he or she is not an
employee of the business that created the document, or has no direct, personal knowledge of how
the document was created. As one leading commentator has noted:

     ... The phrase "other qualified witness" is given a very broad interpretation. The witness
     need only have enough familiarity with the record-keeping system of the business in
     question to explain how the record came into existence in the ordinary course of
     business. The witness need not have personal knowledge of the actual creation of the
     documents or have personally assembled the records. In fact, the witness need not even
     be an employee of the record-keeping entity as long as the witness understands the
     entity's record-keeping system.

Professor John Barkai, U.H. Law School - Evidence                                   Page - 175
     There is no requirement that the records have been prepared by the entity that has
     custody of them, as long as they were created in the regular course of some entity's
     business.

     The sufficiency of the foundation evidence depends in part on the nature of the
     documents at issue. Documents that are "standard records of the type of regularly
     maintained by firms in a particular industry may require less by way of foundation
     testimony than less conventional documents proffered for admission as business
     records."

5 Joseph McLaughlin, Weinstein's Federal Evidence § 803.08[8][a] (2d ed.2009) (footnotes
omitted).

Thus, an employee of a business that receives records from another business can be a qualified
witness who can establish a sufficient foundation for their admission as records of the receiving
business under HRE Rule 803(b)(6). Courts and commentators have articulated the necessary
showing in such circumstances in different ways. For example, another leading commentator notes
that "reliance by the organization on records created by others, although an important part of
establishing trustworthiness, without more is not sufficient." McCormick on Evidence § 292 at 318.
This commentator goes to add that "when the business offering the records of another has made an
independent check of the records, has integrated them into their own business operation in a way
that establishes trustworthiness or contains other assurances of trustworthiness, or can establish
accuracy by other means, the necessary foundation may be established." Id. at 318-19….

Thus, we hold that when an entity incorporates records prepared by another entity into its own
records, they are admissible as business records of the incorporating entity provided that it relies
on the records, there are other indicia of reliability, and the requirements of HRE Rule 803(b)(6)
are otherwise satisfied. The requirements of (1) reliance, and (2) indicia of reliability do not
supplant the provisions of the rule; rather, we view them as necessary in these circumstances to
satisfy the rule's requirement that the records were "made in the course of a regularly conducted
activity" of the incorporating entity. HRE Rule 803(b)(6);

In the instant case, the record does not clearly establish how the speed check card was produced. It
appears, from Officer Ah Yat's testimony, that it is HPD's practice to have speed checks conducted
on its vehicles on an annual basis. According to Ah Yat, those checks are "taken care of" by HPD's
VMS [vehicle maintenance section] during the regular course of maintaining HPD's vehicles. He
testified that the VMS takes these vehicles "to the shop" to calibrate the speedometer, and
"someone takes accurate records" of the test, which are recorded on a card that is placed in the
vehicle. Ah Yat did not know how the checks are done, and did not testify about who actually
performed the test at issue other than it "was done by Jack's Speedo."….

The most plausible interpretation of his testimony is that someone at Jack's Speedo, which is
apparently a private shop, performed a test, created the card to document the results of that test, and
then gave that record to someone from HPD's VMS. We will assume for purposes of argument that

Professor John Barkai, U.H. Law School - Evidence                                Page - 176
such was the case,[8] and analyze the evidence accordingly.

Ah Yat's testimony was sufficient to satisfy several of the requirements of HRE Rule 803(b)(6) in
order to admit the card as a business record of HPD. First, the speed check card is a "record"
documenting the "act" or "event" of calibrating Ah Yat's vehicle's speedometer. HRE Rule
803(b)(6). Second, there is sufficient evidence that the card was created "at or near the time" of the
speed check. Id. Ah Yat testified that the check was "good" for a year, and that it was performed in
August 2006. The card itself contains the handwritten notation "8-9-06," beneath which was
written "Exp. 8-9-07". The notations on the card, together with Ah Yat's testimony that the check
was "good" for a year, support the inference that the speed check was performed on or about
August 9, 2006, and that the card was created on or about that date.

Finally, in order to determine whether Ah Yat's testimony was sufficient to establish that the card
was "made in the course of a regularly conducted activity[,]" HRE Rule 803(b)(6); we consider
whether the State established that HPD incorporated the speed check card into its records and
relied on it, and whether there were additional indicia of reliability. Ah Yat's testimony was
sufficient to establish that the card was incorporated into the records of HPD. Ah Yat was familiar
with HPD's procedures for handling speed check cards, i.e., that the original of the card is kept in
the vehicle to which it relates. Even though Ah Yat was not the person who actually put the card
into the car, his familiarity with the procedure is sufficient. His testimony also established that
HPD relies upon speed check cards such as the one at issue here in its day-to-day operations in
order to ensure that the speedometers in HPD vehicles are accurate.

However, Ah Yat's testimony did not adequately establish that there were other indicia of
reliability. Ah Yat's testimony did not sufficiently establish that anyone at Jack's was under a
business duty to accurately calibrate the vehicle's speedometer and to record the results, or that
there are other reasons to conclude that the card was reliable. Cf. HRE Rule 803(b)(6) cmt.
(recognizing that the "hallmark of reliability" is the "regularity and continuity which produce
habits of precision, [the] actual experience of business in relying upon [the records], [and the] duty
to make an accurate record as part of a continuing job or occupation.") (quoting FRE 803(6),
Advisory Committee's Note) (brackets in original).

In determining whether records that were created by one entity and incorporated into the records
of another entity exhibit indicia of trustworthiness and are admissible, some courts have found it
significant that the entity that created the documents did so in connection with a contractual
obligation owed to the second entity….

Therefore, in the instant case, the existence of a contractual relationship between HPD and Jack's
for the performance and documentation of the tests would be a significant factor in establishing the
necessary indicia of trustworthiness. White, 611 F.Supp. at 1060; Markowitz, 721 N.Y.S.2d at 761.
However, Ah Yat's testimony was too vague to suffice, where Ah Yat testified that HPD vehicles
are taken "to the shop" once a year, but did not indicate that there was any contractual relationship
that would require the shop to accurately conduct and record the speed check. Thus, the State failed
to establish a sufficient foundation for the admission of the speed check card under HRE Rule
803(b)(6), and the district court erred in admitting the card….

Professor John Barkai, U.H. Law School - Evidence                               Page - 177
Accordingly, the district court erred in concluding that there was sufficient foundation for the
admission of the speed check card under HRE Rule 803(b)(6).

C. The admission of the card did not violate Fitzwater's right of confrontation under the U.S.
Constitution

Fitzwater argues that even if the speed check card is admissible as a business record under HRE
Rule 803(b)(6), the State's failure to call the declarant whose statements are reflected on the card to
testify at trial violated his right to confrontation under the Sixth Amendment of the United States
Constitution. Specifically, he argues that the holding in Melendez-Diaz compels the conclusion
that the speed check card was testimonial hearsay that was subject to the right of confrontation.

As noted above, the Court in Melendez-Diaz observed that "documents prepared in the regular
course of equipment maintenance may well qualify as nontestimonial records." 129 S.Ct. at 2532
n. 1. The speed check card at issue here was created in a non-adversarial setting in the regular
course of maintaining Ah Yat's police vehicle, five months prior to the alleged speeding incident.
Accordingly, it is nontestimonial in nature. See U.S. v. Forstell, 656 F.Supp.2d 578, 579-82
(E.D.Va. 2009) (where the defendant was charged with speeding, driving under the influence, and
driving while intoxicated, the court concluded that certificates that a speed radar device, tuning
fork, and Intoxilyzer were tested for accuracy and functioning properly were nontestimonial and
not subject to the Confrontation Clause under Melendez-Diaz); U.S. v. Gitarts, 341 Fed.Appx. 935,
940 n. 2 (4th Cir.2009) (unpublished disposition, citable pursuant to Federal Rules of Appellate
Procedure Rule 32.1) (concluding that "Melendez-Diaz explicitly reaffirms Crawford's holding
that traditional business records are not testimonial evidence").

Accordingly, Fitzwater's right to confrontation under the Sixth Amendment was not violated by the
admission of the speed check evidence.

D. The State failed to establish sufficient foundation for the reliability of the speed check

…Wallace and Manewa thus described the foundational requirements that must be met before
results of the calibration of scales used to weigh narcotics can "be relied on as a substantive fact."
Wallace, 80 Hawai'i at 412, 910 P.2d at 725 (citations and internal quotation marks omitted). In
State v. Assaye, 121 Hawai'i 204, 216 P.3d 1227 (2009), we recognized that similar requirements
applied in the context of admitting evidence about the calibration of laser guns used to measure
speed. Id. at 212, 216 P.3d at 1235 (characterizing the admission of evidence relating to testing of
a laser gun which omitted any reference to whether the tests "were procedures recommended by the
manufacturer" as "obviously inconsistent with this court's decision in Manewa"). Based on the
record before us, we see no reason to apply different foundational requirements in the context of
speed checks, since the underlying concerns about the reliability of the testing appear to be similar.
To the extent that Ing suggests that the results of speed checks are admissible because they
inherently "bore indicia of reliability" without any mention of these foundational requirements
being satisfied, 53 Haw. at 468, 497 P.2d at 577, it is overruled.



Professor John Barkai, U.H. Law School - Evidence                                Page - 178
Thus, in order for the results of speed checks to be admissible, the State must establish: (1) how
and when the speed check was performed, including whether it was performed in the manner
specified by the manufacturer of the equipment used to perform the check, and (2) the identity and
qualifications of the person performing the check, including whether that person had whatever
training the manufacturer recommends in order to competently perform it. See Assaye, 121 Hawai'i
at 212-14, 216 P.3d at 1235-37; Wallace, 80 Hawai'i at 412 n. 28, 910 P.2d at 725 n. 28; Manewa,
115 Hawai'i at 355-57, 167 P.3d at 348-50. The State may provide this information through
in-court testimony or through a properly authenticated business record pursuant to HRE Rule
803(b)(6). See Wallace, 80 Hawai'i at 412 n. 28, 910 P.2d at 725 n. 28 (recognizing that the
required foundation could be established by "[a] document provided by the calibrating agency");
Manewa, 115 Hawai`i at 355, 167 P.3d at 348 ("[m]oreover, as in Wallace, [the State] did not offer
any business records of the manufacturer indicating a correct calibration of the balance"). As noted
in section III-B above, HRE Rule 803(b)(6) provides that a business record may be authenticated
by the testimony of either the custodian of the record or a qualified witness, or by certification in
accordance with HRE Rule 902(11) or a statute permitting certification.

The required information was missing from the record here. It was not established by Ah Yat in his
testimony. Nor was it established by the speed check card. As discussed in section III-B, the speed
check card was not authenticated and was, therefore, inadmissible as a business record pursuant to
HRE Rule 803(b)(6). As a result, "inadequate foundation was laid to show" that the speed check
"could `be relied on as a substantive fact[,]'" Wallace, 80 Hawai'i at 412, 910 P.2d at 725 (citations
omitted), and the district court erred in admitting the speed check evidence….

Accordingly, there was insufficient evidence in the record to sustain Fitzwater's conviction under
HRS § 291C-105, and the conviction must be vacated. Cf. Assaye, 121 Hawai'i at 216, 216 P.3d at
1239. However, there was sufficient evidence to establish that Fitzwater was driving his vehicle "at
a speed greater than the maximum speed limit" in violation of HRS § 291C-102(a)(1), based on
Fitzwater's admission during his testimony that he was driving in excess of the speed limit, as well
as Ah Yat's testimony.…

Accordingly, we conclude that the speed check evidence should not have been admitted under
HRE Rule 803(b)(6), and that, absent that evidence, there was insufficient evidence to support
Fitzwater's conviction for excessive speeding. We therefore vacate the May 12, 2009 judgment of
the Intermediate Court of Appeals, and the May 9, 2007 judgment of the District Court of the First
Circuit, and remand for further proceedings consistent with this opinion.




Professor John Barkai, U.H. Law School - Evidence                               Page - 179
  OPINIONS AND EXPERT TESTIMONY PROBLEMS (TRUE/FALSE)
_____ 1. A police officer with specialized training may opine that X was at fault in the accident.
_____ 2. A person may not testify as an expert unless he has prior experience working with the
particular item, matter, or product involved in the litigation.
_____ 3. Testimony by an expert that a particular quantity of drugs was possessed by the defendant
with an intent to distribute violates Rule 705.
_____ 4. Everybody may testify that the room smelled of limburger cheese.
_____ 5. A person with no formal education may still qualify as an expert in a particular field.
_____ 6. A doctor is allowed to disclose the opinion of a consulting physician not otherwise
admitted into evidence relating to the condition of the patient in her testimony to the jury because
such an opinion is reasonably relied upon by an expert in the field.
_____ 7. A lay witness may testify it was bitter cold outside that day.
_____ 8. Expert testimony is precluded as “not helpful” if the jury has a general understanding of
the matter under consideration.
_____ 9. A lay witness may not testify that he thinks the man was carrying a gun but is not 100%
positive.
_____ 10. General acceptance of an explanative theory still plays a part in the Daubert/Kumho
Rule 702 gatekeeping determination.
_____ 11. A lay witness may testify that a person appeared nervous as she approached the
microphone.
_____12. An expert for the defense but not the prosecution may testify as to whether the accused
lacked a premeditated intent to commit a homicide.
_____13. A woman leaving the scene of a robbery may be described by a witness as elegantly
dressed in black.
_____14. The Daubert decision of the Untied States Supreme Court makes the employment of the
Frye standard unconstitutional in state court.
_____15. An expert witness may not testify that X “could be” the cause of Y.
(MG: 19-21)




Professor John Barkai, U.H. Law School - Evidence                             Page - 180
                 EXPERT WITNESS PROBLEMS - TRANSCRIPT
    P sues D (an insurance company) to collect on a fire insurance policy. D refused to pay, claiming
    the P set the fire (arson). D calls F (the fire marshall) as a witness. The court has determined that
    F is an expert and may give an opinion.
    Q: I would like to ask you some questions about factors that you considered when forming your
            opinion. What did you do during the investigation?
    A: I spoke with FF the fire fighter in charge that night.
    Q: What did she tell you?
    A: She said the fire spread very rapidly from the time she arrived on the scene at 9 pm. [objection]
    Q: Did she say anything else?
    A: She had taken a 911 phone report of the fire from passerby who saw flames from windows on
           the 1st, 3rd, and 5th floors. [objection]
    Q: What is the significance of the 911 report?
    A: It shows 3 separate and non-communicating fires at the same time which is a strong indication
            of arson. The recognized authority Jane Byrne says in her book, Fire Investigation, that
            separate non-communicating fires indicates arson.
    Q: Is the Byrne book a recognized authority?
    A: Yes. Its a bible for us.
    Q: Your Honor, I offer the Byrne book into evidence so that the jury can take it into the jury room
           and study it. [objection]
    Q: What else did you base your opinion upon?
    A: Laboratory tests from a fire department arson expert. [objection]
    Q: What else did you base your opinion upon?
    A: About 10 minutes after I arrived on the scene, a calm person on the street told me that he had
          seen a man running out of the building just before the fire started. [objection]
    Q: What else did you base your opinion upon?
    A: I saw "Tim Torchy," whom the department believes to be a professional arsonist standing across
            the street watching the fire. [objection]
    CROSS OF THE EXPERT
    Q: F, you found evidence of faulty electrical wiring during your investigation of this building didn't
            you?
    A: Yes.
    Q: Faulty wiring could have caused the fire, right?
    A: It could have, but I concluded it was arson. [objection]
Q: I refer you to exhibit # 1, the Byrne book. Doesn't it say on page 227 that, "The primary rule of fire
       investigation is that you should not reach the conclusion of arson, unless and until you can rule
       out all accidental causes."?
   A: Yes.




    Professor John Barkai, U.H. Law School - Evidence                               Page - 181
                       PRIVILEGES
Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
Lawyer-Client Privilege
•       A client or the client's lawyer and a lawyer representing another client in a matter of common interest.
This is sometimes referred to as the common interest, "pooled information" or (less appropriately) "joint
defense" privilege. In re Teleglobe Communications Corp., 493 F.3d 345, 363-66 (3d Cir. 2007) ("common
interest" privilege arising in civil case); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922-23 (8th
Cir.1997), cert. denied sub nom. Office of President v. Office of Independent Counsel, 521 U.S. 1105, 117
S.Ct. 2482, 138 L.Ed.2d 991 (1997) ("common interest" privilege arising in criminal case).
Example—Privileged. In United States v. Stotts, 870 F.2d 288 (5th Cir.1989), cert. denied, 493 U.S. 861,
110 S.Ct. 173, 107 L.Ed.2d 129 (1989), statements made by a defendant during a meeting attended by the
defendant and his lawyer, a co-defendant and his lawyer, and another codefendant were held to be
privileged.
Example—Not privileged. In United States v. Gotti, 771 F.Supp. 535, 545 (E.D.N.Y.1991), the court held
that the attorney-client privilege did not apply to communications between defendants in the absence of any
lawyer. The privilege protects communications to a lawyer representing another client in a matter of
common interest, but not client-to-client communications.

Client defined. A client may be an individual or any kind of entity, including a governmental unit, corporation,
or unincorporated association. E.g., In re County of Erie, 473 F.3d 413 (2d Cir. 2007) (protecting
communications between county attorney and county officials). Town of Norfolk v. United States Army
Corps of Engineers, 968 F.2d 1438, 1457-58 (1st Cir.1992) (protecting communications between U.S.
Attorney and Corps of Engineers). Even if the person or entity does not actually become a client of the
attorney, the privilege attaches to communications made while the potential client was consulting the lawyer
with a view toward obtaining legal services. In re Auclair, 961 F.2d 65, 70 (5th Cir.1992). Communications
made after the attorney has declined employment, however, remain unprivileged. United States v. Dennis,
843 F.2d 652, 656-57 (2d Cir.1988).

A consulting expert employed to help the lawyer in the performance of his legal representation. E.g., In re
Grand Jury Proceedings, 220 F.3d 568 (7th Cir.2000) (accountant); United States v. Schwimmer, 892 F.2d
237 (2d Cir.1989) (accountant); Brown v. Trigg, 791 F.2d 598, 601 (7th Cir.1986) (polygrapher).

A limited amount of disclosure outside the circle of lawyer, client, and their
representatives may be made without necessarily destroying confidentiality:
•       Disclosure to third persons for the purpose of furthering the rendition of legal services is permissible.
This may include disclosures to a client's spouse, parent, or business partner, or a joint client. Advisory
Committee's Note. See Jenkins v. Bartlett, 487 F.3d 482, 490-91 (7th Cir. 2007) (police liaison officer
present to assist attorney appointed by union to represent police officer), cert. denied, 552 U.S. 1039, 128
S.Ct. 654, 169 L.Ed.2d 510 (2007); In re Auclair, 961 F.2d 65, 69-70 (5th Cir.1992) (joint client).
•        Disclosure to someone who is reasonably necessary for the transmission of the communication,
such as an interpreter, is permissible.

Physician-patient privilege
Since most states also recognize at least a limited physician-patient privilege, the case can be made for
acceptance of such a privilege in federal court. But see United States v. Bek, 493 F.3d 790, 802 (7th Cir.
2007) ("we can find no circuit authority in support of a physician-patient privilege, even after Jaffee"), cert.
denied, 552 U.S. 1010, 128 S.Ct. 549, 169 L.Ed.2d 374 (2007).


Professor John Barkai, U.H. Law School - Evidence                                        Page - 182
SWIDLER & BERLIN & HAMILTON v. U.S.
118 S.Ct. 2081 (1998)
Does the attorney-client privilege survive death of the client?
  Petitioner, an attorney, made notes of an initial interview with a client shortly before the client's
death. The Government, represented by the Office of Independent Counsel, now seeks his notes for
use in a criminal investigation. We hold that the notes are protected by the attorney-client privilege.
    This dispute arises out of an investigation conducted by the Office of the Independent Counsel into
whether various individuals made false statements, obstructed justice, or committed other crimes
during investigations of the 1993 dismissal of employees from the White House Travel Office.
Vincent W. Foster, Jr., was Deputy White House Counsel when the firings occurred. In July, 1993,
Foster met with petitioner James Hamilton, an attorney at petitioner Swidler & Berlin, to seek legal
representation concerning possible congressional or other investigations of the firings. During a
2-hour meeting, Hamilton took three pages of handwritten notes. One of the first entries in the notes
is the word "Privileged." Nine days later, Foster committed suicide.
   In December 1995, a federal grand jury, at the request of the Independent Counsel, issued
subpoenas to petitioners Hamilton and Swidler & Berlin for, inter alia, Hamilton's handwritten notes
of his meeting with Foster. Petitioners filed a motion to quash, arguing that the notes were protected
by the attorney client privilege and by the work product privilege. The District Court, after examining
the notes in camera, concluded they were protected from disclosure by both doctrines and denied
enforcement of the subpoenas.
    The Court of Appeals for the District of Columbia Circuit reversed. In re Sealed Case, 124 F.3d
230 (1997). While recognizing that most courts assume the privilege survives death, the Court of
Appeals noted that holdings actually manifesting the posthumous force of the privilege are rare.
Instead, most judicial references to the privilege's posthumous application occur in the context of a
well recognized exception allowing disclosure for disputes among the client's heirs. Id., at 231-232.
 It further noted that most commentators support some measure of posthumous curtailment of the
privilege. Id., at 232. The Court of Appeals thought that the risk of posthumous revelation, when
confined to the criminal context, would have little to no chilling effect on client communication, but
that the costs of protecting communications after death were high. It therefore concluded that the
privilege was not absolute in such circumstances, and that instead, a balancing test should apply. Id.,
at 233-234. It thus held that there is a posthumous exception to the privilege for communications
whose relative importance to particular criminal litigation is substantial. Id., at 235. While
acknowledging that uncertain privileges are disfavored, Jaffee v. Redmond, 518 U.S. 1, 17-18, 116
S.Ct. 1923, 1932, 135 L.Ed.2d 337 (1996), the Court of Appeals determined that the uncertainty
introduced by its balancing test was insignificant in light of existing exceptions to the privilege. 124
F.3d, at 235. The Court of Appeals also held that the notes were not protected by the work product
privilege.
   The dissenting judge would have affirmed the District Court's judgment that the attorney client
privilege protected the notes. Id., at 237. He concluded that the common-law rule was that the
privilege survived death. He found no persuasive reason to depart from this accepted rule,
particularly given the importance of the privilege to full and frank client communication. Id., at 237.
   Petitioners sought review in this Court on both the attorney client privilege and the work product
privilege. [FN1] We granted certiorari, 523 U.S. ----, 118 S.Ct. 1358, 140 L.Ed.2d 509 (1998), and
we now reverse.
   FN1. Because we sustain the claim of attorney-client privilege, we do not reach the claim of work
product privilege.




Professor John Barkai, U.H. Law School - Evidence                                Page - 183
   The attorney client privilege is one of the oldest recognized privileges for confidential
communications. Upjohn Co. v. United States, 449 U.S. 383 (1981); ... The privilege is intended to
encourage "full and frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and the administration of justice." Upjohn, supra,
at 389, 101 S.Ct. at 682. The issue presented here is the scope of that privilege; more particularly, the
extent to which the privilege survives the death of the client....
   The Independent Counsel argues that the attorney-client privilege should not prevent disclosure of
confidential communications where the client has died and the information is relevant to a criminal
proceeding. There is some authority for this position.... One state appellate court, Cohen v.
Jenkintown Cab Co., 238 Pa.Super. 456, 357 A.2d 689 (1976), and the Court of Appeals below have
held the privilege may be subject to posthumous exceptions in certain circumstances....
   But other than these two decisions, cases addressing the existence of the privilege after
death--most involving the testamentary exception--uniformly presume the privilege survives, even if
they do not so hold....
  Such testamentary exception cases consistently presume the privilege survives....
   The great body of this caselaw supports, either by holding or considered dicta, the position that the
privilege does survive in a case such as the present one....
   Despite the scholarly criticism, we think there are weighty reasons that counsel in favor of
posthumous application. Knowing that communications will remain confidential even after death
encourages the client to communicate fully and frankly with counsel. While the fear of disclosure,
and the consequent withholding of information from counsel, may be reduced if disclosure is limited
to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes
altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or
family. Posthumous disclosure of such communications may be as feared as disclosure during the
client's lifetime.
                                                 ***
   It has been generally, if not universally, accepted, for well over a century, that the attorney-client
privilege survives the death of the client in a case such as this. While the arguments against the
survival of the privilege are by no means frivolous, they are based in large part on
speculation--thoughtful speculation, but speculation nonetheless--as to whether posthumous
termination of the privilege would diminish a client's willingness to confide in an attorney. In an area
where empirical information would be useful, it is scant and inconclusive.
   Rule 501's direction to look to "the principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and experience" does not mandate that a rule, once
established, should endure for all time. Funk v. United States, 290 U.S. 371, 381, 54 S.Ct. 212, 215,
78 L.Ed. 369 (1933). But here the Independent Counsel has simply not made a sufficient showing to
overturn the common law rule embodied in the prevailing caselaw. Interpreted in the light of reason
and experience, that body of law requires that the attorney client privilege prevent disclosure of the
notes at issue in this case. The judgment of the Court of Appeals is
  Reversed.
Justice O'CONNOR, with whom Justice SCALIA and Justice THOMAS join, dissenting.




Professor John Barkai, U.H. Law School - Evidence                                 Page - 184
TRAMMEL v. UNITED STATES, 445 U.S. 40 (1980)
     Mr. Chief Justice BURGER delivered the opinion of the Court.

      We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so
as to exclude the voluntary testimony of his wife. 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979). This calls for a
re-examination of Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958).

      On March 10, 1976, petitioner Otis Trammel was indicted with two others, Edwin Lee Roberts and Joseph Freeman,
for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin
in violation of 21 U.S.C.    952(a), 962(a), and 963. The indictment also named six unindicted co-conspirators, including
petitioner's wife Elizabeth Ann Trammel.

      Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the
court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent
her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a
grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married. She
explained that her cooperation with the Government was based on assurances that she would be given lenient treatment.
She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy.

      After hearing this testimony, the District Court ruled that Mrs. Trammel could testify in support of the Government's
case to any act she observed during the marriage and to any communication "made in the presence of a third person";
however, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The
motion to sever was denied.

     At trial, Elizabeth Trammel testified within the limits of the court's pretrial ruling; her testimony, as the Government
concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and
conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18
U.S.C. 5010(b)....

      In the Court of Appeals petitioner's only claim of error was that the admission of the adverse testimony of his wife,
over his objection, contravened this Court's teaching in Hawkins v. United States, supra, and therefore constituted
reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit "the voluntary
testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return
for her testimony." 583 F.2d 1166, 1168 (CA10 1978).

                                                             II

      The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that "it hath beene
resolved by the Justices that a wife cannot be produced either against or for her husband." ... This spousal disqualification
sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own
behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the
woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned
doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his
wife....




Professor John Barkai, U.H. Law School - Evidence                                                 Page - 185
       In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), this Court considered the continued
vitality of the privilege against adverse spousal testimony in the federal courts. There the District Court had permitted
petitioner's wife, over his objection, to testify against him. With one questioning concurring opinion, the Court held the
wife's testimony inadmissible;... Also rejected was the Government's suggestion that the Court modify the privilege by
vesting it in the witness-spouse, with freedom to testify or not independent of the defendant's control. The Court viewed
this proposed modification as antithetical to the widespread belief, evidenced in the rules then in effect in a majority of the
States and in England, "that the law should not force or encourage testimony which might alienate husband and wife, or
further inflame existing domestic differences." Id., at 79, 79 S.Ct., at 139.

      Hawkins, then, left the federal privilege for adverse spousal testimony where it found it, continuing "a rule which
bars the testimony of one spouse against the other unless both consent." Id., at 78, 79 S.Ct., at 138.... However, in so doing,
the Court made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated
by 'reason and experience.' " 358 U.S., at 79, 79 S.Ct., at 139.
                                                            ***

      [1][2][3] The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary
development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may
be interpreted . . . in the light of reason and experience." Fed.Rule Evid. 501.... The general mandate of Rule 501 was
substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules
of Evidence and approved by the Judicial Conference of the United States and by this Court. That proposal defined nine
specific privileges, including a husband-wife privilege which would have codified theHawkins rule and eliminated the
privilege for confidential marital communications.... In rejecting the proposed Rules and enacting Rule 501, Congress
manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to "provide the courts with the
flexibility to develop rules of privilege on a case-by-case basis," 120 Cong.Rec. 40891 (1974) (statement of Rep. Hungate),
and to leave the door open to change....

       Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins
rule, the long history of the privilege suggests that it ought not to be casually cast aside. That the privilege is one affecting
marriage, home, and family relationships-- already subject to much erosion in our day--also counsels caution. At the same
time, we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave
them birth have disappeared and after experience suggest the need for change....

                                                               B

      [4] Since 1958, when Hawkins was decided, support for the privilege against adverse spousal testimony has been
eroded further. Thirty-one jurisdictions, including Alaska and Hawaii, then allowed an accused a privilege to prevent
adverse spousal testimony.... The number has now declined to 24.... The trend in state law toward divesting the accused
of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations
are concerns traditionally reserved to the states.... Scholarly criticism of the Hawkins rule has also continued unabated.
                                                              ***

                                                                C

      [5] Testimonial exclusionary rules and privileges contravene the fundamental principle that " 'the public . . . has a
right to every man's evidence.' " United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). As
such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or
excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational
means for ascertaining truth." Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960)
(Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108-3109, 41
L.Ed.2d 1039 (1974). Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently
important interests to outweigh the need for probative evidence in the administration of criminal justice.

     [6] It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed

Professor John Barkai, U.H. Law School - Evidence                                                    Page - 186
between husband and wife in the confidence of the marital relationship--once described by this Court as "the best solace
of human existence." Stein v. Bowman, 13 Pet., at 223. Those confidences are privileged under the independent rule
protecting confidential marital communications. Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951);
 see n. 5, supra. The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude
evidence of criminal acts and of communications made in the presence of third persons.

      No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client,
and physician and patient limit protection to private communications. These privileges are rooted in the imperative need
for confidence and trust....

      The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential
communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed
more than a century and a half ago, such a privilege goes far beyond making "every man's house his castle," and permits
a person to convert his house into "a den of thieves." 5 Rationale of Judicial Evidence 340 (1827). It "secures, to every
man, one safe and unquestionable and every ready accomplice for every imaginable crime." Id., at 338.

     The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law
world--indeed in any modern society--is a woman regarded as chattel or demeaned by denial of a separate legal identity
and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions
have been cast aside so that "[n]o longer is the female destined solely for the home and the rearing of the family, and only
the male for the marketplace and the world of ideas." Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43
L.Ed.2d 688 (1975).

      The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is
willing to testify against the other in a criminal proceeding--whatever the motivation--their relationship is almost certainly
in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a
rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than
to foster family peace. Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine
the marital relationship. For example, in a case such as this the Government is unlikely to offer a wife immunity and
lenient treatment if it knows that her husband can prevent her from giving adverse testimony. If the Government is
dissuaded from making such an offer, the privilege can have the untoward effect of permitting one spouse to escape justice
at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy
solely by virtue of her husband's control over her testimony.
                                                                IV
      [7][8] Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience"
no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the
existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness
may be neither compelled to testify nor foreclosed from testifying. This modification--vesting the privilege in the
witness-spouse--furthers the important public interest in marital harmony without unduly burdening legitimate law
enforcement needs.

      Here, petitioner's spouse chose to testify against him. That she did so after a grant of immunity and assurances of
lenient treatment does not render her testimony involuntary.... Accordingly, the District Court and the Court of Appeals
were correct in rejecting petitioner's claim of privilege, and the judgment of the Court of Appeals is

     Affirmed.




Professor John Barkai, U.H. Law School - Evidence                                                  Page - 187
UPJOHN COMPANY v. UNITED STATES,
449 U.S. 383; 101 S.Ct. 677 (1981)                                                                          PRIVILEGES

     We granted certiorari in this case to address important questions concerning the scope of the attorney-client privilege
in the corporate context and the applicability of the work-product doctrine in proceedings to enforce tax summonses. 445
U.S. 925, 100 S.Ct. 1310, 63 L.Ed.2d 758. With respect to the privilege question the parties and various amici have
described our task as one of choosing between two "tests" which have gained adherents in the courts of appeals. We are
acutely aware, however, that we sit to decide concrete cases and not abstract propositions of law. We decline to lay down
a broad rule or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can
and do, however, conclude that the attorney-client privilege protects the communications involved in this case from
compelled disclosure and that the work-product doctrine does apply in tax summons enforcement proceedings.

     Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January 1976 independent
accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary made payments to
or for the benefit of foreign government officials in order to secure government business. The accountants, so informed
petitioner, Mr. Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel.... It was decided that the
company would conduct an internal investigation of what were termed "questionable payments." As part of this
investigation the attorneys prepared a letter containing a questionnaire which was sent to "All Foreign General and Area
Managers" over the Chairman's signature.... Managers were instructed to treat the investigation as "highly confidential"
and not to discuss it with anyone other than Upjohn employees who might be helpful in providing the requested
information. Responses were to be sent directly to Thomas. Thomas and outside counsel also interviewed the recipients
of the questionnaire and some 33 other Upjohn officers or employees as part of the investigation....

    ... On November 23, 1976, the [I.R.S.] issued a summons pursuant to 26 U.S.C.           7602 demanding production of:

     "All files relative to the investigation conducted under the supervision of Gerard Thomas to identify payments to
     employees of foreign governments...
"The records should include but not be limited to written questionnaires sent to managers of the Upjohn Company's
foreign affiliates, and memorandums or notes of the interviews conducted in the United States and abroad with officers and
employees of the Upjohn Company and its subsidiaries...."

The company declined to produce the documents specified in the second paragraph on the grounds that they were
protected from disclosure by the attorney-client privilege...

     Federal Rule of Evidence 501 provides that "the privilege of a witness ... shall be governed by the principles of the
common law as they may be interpreted by the courts of the United States in light of reason and experience." The
attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.... Its
purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader
public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice
or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the
client. As we stated last Term in Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980):
 "The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons
for seeking representation if the professional mission is to be carried out." And in Fisher v. United States, 425 U.S. 391,
403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976), we recognized the purpose of the privilege to be "to encourage clients to
make full disclosure to their attorneys." ... Admittedly complications in the application of the privilege arise when the
client is a corporation, which in theory is an artificial creature of the law, and not an individual; but this Court has assumed
that the privilege applies when the client is a corporation....

 The Court of Appeals, however, considered the application of the privilege in the corporate context to present a "different
problem," since the client was an inanimate entity and "only the senior management, guiding and integrating the several
operations, ... can be said to possess an identity analogous to the corporation as a whole." 600 F.2d at 1226. The first case
to articulate the so-called "control group test" adopted by the court below, ... reflected a similar conceptual approach:

Professor John Barkai, U.H. Law School - Evidence                                                   Page - 188
    ... [T]he most satisfactory solution, I think, is that if the employee making the communication, of whatever rank he
    may be, is in a position to control or even to take a substantial part in a decision about any action which the
    corporation may take upon the advice of the attorney, ... then, in effect, he is (or personifies) the corporation when he
    makes his disclosure to the lawyer and the privilege would apply."

     Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice
to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.

     ... Middle-level--and indeed lower-level--employees can, by actions within the scope of their employment, embroil
the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information
needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties....

     The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the
communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client
corporation. The attorney's advice will also frequently be more significant to noncontrol group members than to those who
officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the
employees who will put into effect the client corporation's policy....

      The narrow scope given the attorney-client privilege by the court below not only makes it difficult for corporate
attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the
valuable efforts of corporate counsel to ensure their client's compliance with the law. In light of the vast and complicated
array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, "constantly go
to lawyers to find out how to obey the law," Burnham, The Attorney-Client Privilege in the Corporate Arena, 24 Bus.Law.
901, 913 (1969), particularly since compliance with the law in this area is hardly an instinctive matter,... The test adopted
by the court below is difficult to apply in practice, though no abstractly formulated and unvarying "test" will necessarily
enable courts to decide questions such as this with mathematical precision. But if the purpose of the attorney-client
privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular
discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying
applications by the courts, is little better than no privilege at all. The very terms of the test adopted by the court below
suggest the unpredictability of its application. The test restricts the availability of the privilege to those officers who play
a "substantial role" in deciding and directing a corporation's legal response. Disparate decisions in cases applying this test
illustrate its unpredictability....

     The communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction
of corporate superiors in order to secure legal advice from counsel. ... The communications concerned matters within the
scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being
questioned in order that the corporation could obtain legal advice.... Pursuant to explicit instructions from the Chairman
of the Board, the communications were considered "highly confidential" when made, ... and have been kept confidential
by the company. Consistent with the underlying purposes of the attorney-client privilege, these communications must be
protected against compelled disclosure.




Professor John Barkai, U.H. Law School - Evidence                                                   Page - 189
The Court of Appeals declined to extend the attorney-client privilege beyond the limits of the control group test for fear
that doing so would entail severe burdens on discovery and create a broad "zone of silence" over corporate affairs.
Application of the attorney-client privilege to communications such as those involved here, however, puts the adversary in
no worse position than if the communications had never taken place. The privilege only protects disclosure of
communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney:
"[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a
communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question,
'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely
because he incorporated a statement of such fact into his communication to his attorney." Philadelphia v. Westinghouse
Electric Corp., 205 F.Supp. 830, 831 ( q2.7). ... State ex rel. Dudek v. Circuit Court, 34 Wis.2d 559, 580, 150 N.W.2d 387,
399 (1967) ("the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer"). Here the
Government was free to question the employees who communicated with Thomas and outside counsel. Upjohn has
provided the IRS with a list of such employees, and the IRS has already interviewed some 25 of them. While it would
probably be more convenient for the Government to secure the results of petitioner's internal investigation by simply
subpoenaing the questionnaires and notes taken by petitioner's attorneys, such considerations of convenience do not
overcome the policies served by the attorney-client privilege. As Justice Jackson noted in his concurring opinion in
Hickman v. Taylor, 329 U.S., at 516, 67 S.Ct., at 396: "Discovery was hardly intended to enable a learned profession to
perform its functions ... on wits borrowed from the adversary."

     Needless to say, we decide only the case before us, and do not undertake to draft a set of rules which should govern
challenges to investigatory subpoenas. Any such approach would violate the spirit of Federal Rule of Evidence 501. See
S.Rep. No. 93-1277, p. 13 (1974) ("the recognition of a privilege based on a confidential relationship ... should be
determined on a case-by-case basis"); Trammel, 445 U.S., at 47... While such a "case-by-case" basis may to some slight
extent undermine desirable certainty in the boundaries of the attorney-client privilege, it obeys the spirit of the Rules. At
the same time we conclude that the narrow "control group test" sanctioned by the Court of Appeals, in this case cannot,
consistent with "the principles of the common law as ... interpreted ... in the light of reason and experience," Fed. Rule Evid.
501, govern the development of the law in this area.




Professor John Barkai, U.H. Law School - Evidence                                                   Page - 190
                                                                                                      HRE 505
STATE v. LEVI 67 Haw. 247,             686 P.2d 9 (1984)

Defendant was convicted of first-degree murder. Held that: ... (2) conversations between defendant and
former wife, where no others were present, were privileged communications and should not have been
admitted into evidence. Reversed and remanded for new trial.

This is an appeal by Defendant-Appellant Melvin Levi from a conviction of first degree murder... we conclude
that the trial court did commit reversible error in admitting into evidence confidential marital communications.
On April 17, 1969, a grossly decomposed corpse, later identified as Gordon Scott, was found near Waiawa
Naval Station. Due to the advanced state of decomposition, no determination was made at that time as to
whether the death was caused by foul play.

In 1978, Susan Kucinski, Levi's former wife, contacted police in Palo Alto, California, and said she would be
willing to implicate Levi and another man, Dr. Ray Tachibana, in the death of Gordon Scott, but would only
testify at a trial if a strong case could be made. The Honolulu Police Department was called in, but left the
matter pending under the assumption that most of Kucinski's testimony would be inadmissible. Thirty-one
months after Kucinski reported the murder to the police, an indictment was returned against Levi....

At trial, Kucinski testified to various conversations made by Levi concerning the killing. These conversations
fall into three situations. In the first, Kucinski testified to conversations which were made in her presence during
two meetings between Levi and Tachibana where Scott's murder was planned. In the second, she testified to
conversations that took place in the privacy of their home without anyone present. During this conversation,
Levi told Kucinski the explicit details of the killing, stating that he had beaten Scott into unconsciousness, that
he and Tachibana had then taken Scott to a banana patch where Levi let Tachibana drive a tire iron through
Scott's neck to give Tachibana "the satisfaction of killing the man that was going out with his wife." In the third,
Kucinski testified that she was present on several occasions when Levi "bragged" about his involvement in the
Scott murder to friends while drinking in a bar. Each of these instances occurred while Kucinski and Levi were
married to each other....

Appellant contends that in all three situations, Levi's conversations were confidential marital communications
and therefore inadmissible under Rule 505, Hawaii Rules of Evidence (HRE)...

Under our former statutes, the privilege allowing a spouse to refuse to divulge information imparted by the
other was extended to all communications, regardless of their confidentiality. Under Rule 505, however, the
communication to be privileged must have been intended to be confidential. Marital communications are
presumed to be confidential, but the presumption may be overcome by proof of facts showing they were not
intended to be confidential. ... For example, the presence of a third party negates any presumption of privacy...

In the case at bar, we conclude that Kucinski's testimony on conversations in situations (1) and (3) are not
confidential since the presence of third parties negates any intention of confidentiality. We conclude, however,
that the conversation in situation (2), which was solely between Kucinski and Levi, is confidential.

The government argues that the privilege was lost by the other statements made by Levi implicating himself in
the killing. We cannot agree. The issue here is not one of waiver. The issue is simply whether at the time the
statements were made, they were intended not for disclosure to others. We cannot conclude, upon
examination of the record, that the other statements established evidence to the contrary to overcome the
presumption that the conversation between husband and wife alone is confidential.
Upon examination of the record, we conclude that the error of admitting the private conversation between Levi
and Kucinski might reasonably have contributed to the conviction. The error was therefore not harmless
beyond a reasonable doubt. On this basis, we reverse and remand the case for a new trial.



Professor John Barkai, U.H. Law School - Evidence                                          Page - 191
                                                                                                     HRE 513
                                           STATE v.CULKIN
                                      97 Hawaii 206, 35 P.3d 233 (2001)

Defendant was convicted ... of reckless manslaughter and second-degree reckless endangering. Defendant
appealed. The Supreme Court, Ramil, J., held that: ... (3) attempted impeachment of defendant with evidence
of false identification, which caused defendant to invoke right against self-incrimination, was error;

Affirmed in part, vacated in part, and remanded.
...
Opinion of the Court by RAMIL, J.
Defendant-appellant Timothy J. Culkin appeals from a first circuit court jury trial, the Honorable Melvin K.
Soong presiding, convicting Culkin of reckless manslaughter and reckless endangering in the second degree...
Culkin is currently serving an indeterminate term of twenty years of incarceration and a concurrent term of one
year.
...
On appeal, Culkin raises the following points of error: ... (2) the circuit court erred by allowing the prosecution
to impeach Culkin with pending forgery charges, thus forcing him to assert his fifth amendment privilege in
front of the jury; ...

We hold that the jury instructions were prejudicially misleading, prejudicially confusing, and likely contributed
to the reckless manslaughter conviction. Accordingly, we vacate Culkin's conviction of and sentence for the
offense of reckless manslaughter. To provide guidance on remand, we address Culkin's remaining points
of error. ... In so doing, we further hold: (1) that, under the circumstances of this case, the circuit court
abused its discretion by permitting the prosecution to cross-examine Culkin about multiple false
identification cards discovered at his house with foreknowledge that Culkin intended to invoke his fifth
amendment privilege if questioned about them; ...
                                    B. The Circuit Court's Evidentiary Rulings

1. The circuit court abused its discretion by permitting the prosecution to cross-examine Culkin regarding the
                          second Harold Cross and the Paul Polinski identifications.
                                                                                     FN11
A police search of Culkin's house uncovered a number of forged identifications.            In connection with this
discovery, Culkin was charged with one count of second degree forgery, and was scheduled for trial on that
charge after the murder trial. The prosecution filed a motion indicating its intent to confront Culkin with [such]
evidence: ... Defense counsel objected on the grounds that Culkin was facing an upcoming forgery trial based
on the opening of a checking account under the name Harold Cross. She argued that to question Culkin on
this matter would potentially force him to assert his fifth amendment privilege in front of the jury, which would
be “extremely prejudicial.” The circuit court ruled that if Culkin took the stand, the prosecution could question
him about use of the State “Harold Cross” identification to open the bank account and to rent the house, but
precluded questioning about other identification cards.

FN11. The search of Culkin's house uncovered identification cards with Culkin's photographs inserted into
them, blanks used for drafting false identification cards for driver's licenses, insurance cards, identification
cards for government agencies, and even passports.

At trial, Culkin took the stand and testified that he used the name “Harold Cross,” who was a real person, to
open a checking account and rent the house in which he lived. Culkin explained that he used the Harold Cross
identification because he wanted a house big enough to start up a printing business, but that his own credit was
bad. During Culkin's testimony, the following exchange occurred:
Q. [by Prosecutor] Do you remember doing this, making this ID card?
A. [by Culkin] Yes.

Professor John Barkai, U.H. Law School - Evidence                                           Page - 192
Q. Do you remember putting six foot tall, 225 pounds?
A. I remember sitting for the picture. I didn't fill out the ID, though. But-(shrugs)
Q. You did not fill out the ID. Who filled out the ID?
A. My brother made the ID, typed in all the information.
Q. Your brother makes your ID to rent the house, to open the bank account-
....
Q. Did you say in your answer your brother made this ID for you?
A. I said my brother made the ID for me, yes.
Q. All you did was sit for the picture?
A. Right.

The circuit court then ruled that Culkin had opened the door for the prosecution to impeach him with evidence
that he also possessed other identification cards. Culkin advised the court that, due to the pending forgery trial,
he would invoke his fifth amendment privilege if questioned about other identifications. Nevertheless, the
court permitted the prosecution to question Culkin about a federal identification under the name Harold Cross
and a state identification under the name Paul Polinski. In response to questions, Culkin asserted his privilege
                                     FN12
against self-incrimination six times.     The trial court cautioned the jury to “not draw any inference prejudicial
to the defendant by his choosing to exercise his Fifth Amendment rights.” Culkin contends that the circuit
court abused its discretion by permitting the prosecutor to cross-examine him regarding false identification
cards uncovered at his house, thereby forcing him to invoke his fifth amendment privilege on the witness stand.
 We agree.


FN12. The following exchange occurred:
Q. [prosecutor]: Yesterday, you told all the jurors here that your reason for using a false identification card was
so you could just rent a house; isn't that correct?
A. [Culkin]: Upon advice of my counsel and based upon my Fifth Amendment right I respectfully decline to
answer that question.
Q. I'm going to show you exhibit 107, Mr. Culkin. Isn't it true that this card marked State's Exhibit 107 is the
card that you used to open the bank account under a false name and to rent a house under a false name of
Harold D. Cross?
A. Upon the advice of my counsel and based upon my Fifth Amendment right I respectfully decline to answer
that question.
Q. Isn't it true that on the day that you stabbed your brother you had both this identification card, state ID for
Harold D. Cross with your picture on it as well as this State of Hawai i identification card with the name of Paul
Polinsky, address 2550 Kuhio Avenue, a different social security number 455-22-5033 and a different date of
birth 10/12/54 in your wallet in your room and upon your bed.
A. Upon advice of my counsel and based upon my Fifth Amendment right I respectfully decline to answer that
question.
....
Q. Isn't it true, Mr. Culkin, that in this false identification card with your picture and Paul Polinsky on it you are
wearing different clothes?
A. Upon the advice of my counsel and based upon my Fifth Amendment right I respectfully decline to answer
that question.
Q. Isn't it true, Mr. Culkin, that in your briefcase in your bedroom on the date you stabbed your brother you also
had a false identification card entitled federal emergency management agency federal employee heavy
equipment operator under the name of Harold D. Cross?
A. Upon advice of my counsel and based upon my Fifth Amendment right I respectfully decline to answer that
question.
....
Q. These are your photos, aren't they, Mr. Culkin?
A. Upon advice of my counsel and based upon my Fifth Amendment right I respectfully decline to answer that
question.

Professor John Barkai, U.H. Law School - Evidence                                           Page - 193
“A defendant who elects to testify in his own defense is subject to cross-examination as to any matter pertinent
to, or having a logical connection with the specific offense for which he is being tried.” State v. Pokini, 57 Haw.
17, 22, 548 P.2d 1397, 1400 (1976). In this regard, a defendant “may be cross-examined on collateral matters
bearing upon his credibility, the same as any other witness.” State v. Napulou, 85 Hawai i 49, 57, 936 P.2d
1297, 1305 (App.1997) (citing Pokini, 57 Haw. at 22, 548 P.2d at 1400). Hawai i Rules of Evidence (HRE)
Rule 608(b) (1993) instructs in relevant part that “[s]pecific 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.”
While HRE Rule 608 invests the trial judge with discretion to admit extrinsic evidence, the HRE Rule 403
balancing test will dictate exclusion of that extrinsic evidence in certain cases.           HRE Rule 608-1992
Supplemental Commentary; see also Addison M. Bowman, Hawai i Rules of Evidence Manual 608-2B(2)
(2d ed.1998).

[28][29][30][31] Initially, the circuit court did not abuse its discretion by permitting the prosecution to question
                                                        FN13
Culkin about the state Harold Cross identification.          Inasmuch as there were no witnesses to the stabbing,
this case turned in large part on Culkin's credibility. The possession of false identification cards, and assorted
activities undertaken therewith, were probative of untruthfulness. The circuit court's subsequent ruling,
however, which occasioned Culkin to invoke his fifth amendment privilege in front of the jurors, presents an
entirely different problem. We can perceive of no calculation by which the probative value of the prosecution's
unanswered questions outweighed the risk of unfair prejudice engendered by compelling Culkin to assert his
                                                  FN14
fifth amendment privilege in front of the jury.


FN13. We reject Culkin's contention that HRE Rule 609, which generally prohibits impeachment of a criminal
defendant by evidence of prior convictions, applies to evidence of pending criminal charges. Looking first to
the language employed by the drafters of the rule, Hill v. Inouye, 90 Hawai i 76, 83, 976 P.2d 390, 397 (1998),
HRE Rule 609(a) unambiguously proscribes impeachment by evidence of prior convictions. Because Culkin
had not been convicted of forgery at the time of trial, HRE Rule 609(a) did not apply to questioning about his
possession of false identification cards.
We note also that this reading of HRE Rule 609(a) is consistent with interpretations of identical language
contained in Federal Rule of Evidence 609. While the rules differ as to when and to what extent “evidence that
an accused has been convicted of a crime” is admissible, they nevertheless employ identical language.
Federal courts that have addressed this issue have held that an indictment or complaint is not a “conviction” for
purposes of the rule. See United States v. Landerman, 109 F.3d 1053, 1061 n. 12 (5th Cir.1997) modified on
other grounds, 116 F.3d 119 (5th Cir.1997) (pending state charge is not a conviction under FRE 609); United
States v. Hamilton, 48 F.3d 149, 153 (5th Cir.1995) (deferred adjudication is not a “conviction” for purposes of
FRE 609); United States v. McBride, 862 F.2d 1316, 1320 (8th Cir.1988) (“an indictment does not amount to
a conviction of a crime” under FRE 609).

FN14. Preliminarily, we note that Culkin was entirely justified in asserting his fifth amendment right to refuse to
testify with respect to questions about other identification cards. While an accused's rights under the privilege
are diminished by his act of testifying at trial, Mitchell v. United States, 526 U.S. 314, 321-22, 119 S.Ct. 1307,
143 L.Ed.2d 424 (1999), criminal defendants do not, as a general rule, lose the right to invoke the privilege
regarding criminal misconduct relevant to the case only because that conduct tends to show the accused's lack
of credibility.

Culkin's credibility had already been attacked by questioning about the Harold Cross identification
card...Accordingly, the marginal probative value of the latter questions with respect to Culkin's untruthfulness
would have been slight. In this case, however, the potential probative value of the questions evaporated when
Culkin advised the court that he intended to give no answers.



Professor John Barkai, U.H. Law School - Evidence                                          Page - 194
[32] Meanwhile, the risk of unfair prejudice occasioned by compelling a criminal defendant to invoke the fifth
amendment privilege in front of jurors is substantial. Generally, claims of privilege must be made outside of
the presence of the jury “in order to avoid [t]he layman's natural first suggestion ... that the resort to the
privilege in each instance is a clear confession of crime. “ ...Inasmuch as the prosecution was advised that
Culkin would not answer, we can only conclude that the prosecutor deliberately sought to compel Culkin to
invoke the testimonial privilege in the hope that the jurors would, in fact, interpret Culkin's invocation as a “clear
confession of crime.”

[33] Moreover, the circuit court appears to have paid little heed to HRE Rule 513(b), which is quite explicit that,
“to the extent practicable,” claims of privilege should not be made in front of the jury. Both Culkin and his
attorney advised the circuit court that he would not answer questions about other identification cards and would
invoke his fifth amendment privilege if asked. With advanced warning, it was certainly “practicable” for the
circuit court to avoid this prejudicial questioning. Nor are we persuaded by the prosecution's argument that
any error in this regard was harmless because the circuit court admonished the jurors to draw no prejudicial
inferences from Culkin's refusal to answer questions. We have repeatedly emphasized that such limiting
instructions do not always adequately safeguard the defendant's rights. See State v. Santiago, 53 Haw. 254,
258, 492 P.2d 657, 660 (1971). We thus hold that because the circuit court was put on advance notice that
Culkin intended to invoke his fifth amendment privilege, the circuit court abused its discretion by permitting the
prosecution to question Culkin about the latter identifications.
...
                                                 IV. CONCLUSION

For the forgoing reasons, we affirm Culkin's conviction of reckless endangering in the second degree, vacate
Culkin's conviction of reckless manslaughter, and remand this matter to the circuit court for a new trial.
s




Professor John Barkai, U.H. Law School - Evidence                                           Page - 195
STATE v. PESETI
101 Hawai'i 172, 65 P.3d 119 (2003)

    Defendant was convicted, and appealed after a jury trial in the Family Court, First Circuit, Virginia Lea Crandall, J.,
of third-degree sexual assault of child less than 14 years old. Defendant appealed. ... Vacated and remanded.
...

    On appeal, Peseti contends that the family court erred in: (1) prohibiting defense counsel from cross-examining the
complainant regarding her recantation of her allegations of sexual abuse by Peseti, on the basis that her recantation fell
within either the statutory privilege set forth in Hawai'i Rules of Evidence (HRE) Rule 505.5(b) (1993) or HRE Rule
504.1(b) (1993), thereby violating Peseti's constitutional right to confront adverse witnesses as guaranteed by article I,
section 14 of the Hawai'i Constitution and the sixth amendment to the United States Constitution;
...
    We agree that the family court's refusal to permit defense counsel to cross-examine the complainant regarding her
recantation of her allegations of sexual abuse by Peseti violated his constitutional right to confront adverse witnesses under
the Hawai'i Constitution.
...

    We now hold that, when a statutory privilege interferes with a defendant's constitutional right to cross-examine, then,
upon a sufficient showing by the defendant, the witness' statutory privilege must, in the interest of the truth-seeking process,
bow to the defendant's constitutional rights.
...

    Although it stands to reason that the right of confrontation via cross-examination, as guaranteed by article I, section 14
of the Hawai'i Constitution, will not trump a statutory privilege in every case in which a conflict arises between the two,
we believe that fundamental fairness entitles a defendant to adduce evidence of a statutorily privileged confidential
communication at trial when the defendant demonstrates that: "(1) there is a legitimate need to disclose the protected
information; (2) the information is relevant and material to the issue before the court; and (3) the party seeking to pierce
the privilege shows by a preponderance of the evidence that no less intrusive source for that information exists."
...

    The circuit court, however, deprived Peseti of the opportunity directly to question the complainant regarding whether
she had recanted her allegations of sexual abuse to her victim counselor and whether she had fabricated her allegations in
order to be removed from the Peseti home. We believe that the proffered cross-examination was essential to the
truth-finding process in the present matter because (1) the complainant might have admitted to recanting to her victim
counselor and offered an explanation or motive for doing so or, in the alternative, (2) the complainant might have denied
the alleged recantation to her victim counselor, a presumably dispassionate witness lacking any motive to fabricate, at
which point defense counsel would have had the opportunity to question the victim counselor regarding the complainant's
communications during the counseling process. The victim counselor's testimony in the foregoing regard may well have
aided the jury in evaluating the complainant's credibility regarding her alleged recantation. "[T]he credibility of a witness
is always relevant[.]"... Inasmuch as the family court prohibited defense counsel from eliciting relevant evidence that
could have affected the jury's assessment of the complainant's credibility and motive to fabricate the allegations of Peseti's
sexual abuse, we believe that Peseti was not afforded "the constitutionally required threshold level of inquiry," ...
accordingly, the family court committed an abuse of discretion....

   [W]e vacate the family court's amended judgment of conviction and sentence and remand this case for a new trial.



    HAWAII REVISED STATUTES ANNOTATED
    THE CONSTITUTION OF THE STATE OF HAWAII
    ARTICLE I BILL OF RIGHTS

Professor John Barkai, U.H. Law School - Evidence                                                   Page - 196
   RIGHTS OF ACCUSED
   Section 14


   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial
   jury of the district wherein the crime shall have been committed, which district shall have been previously
   ascertained by law, or of such other district to which the prosecution may be removed with the consent
   of the accused; to be informed of the nature and cause of the accusation; to be confronted with the
   witnesses against the accused, provided that the legislature may provide by law for the inadmissibility
   of privileged confidential communications between an alleged crime victim and the alleged crime
   victim's physician, psychologist, counselor or licensed mental health professional; to have compulsory
   process for obtaining witnesses in the accused's favor; and to have the assistance of counsel for the
   accused's defense. Juries, where the crime charged is serious, shall consist of twelve persons. The
   State shall provide counsel for an indigent defendant charged with an offense punishable by
   imprisonment.

   (Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978;
   am SB 2846 and election Nov 2, 2004)




   Editor's note.. --

   2004 Haw. Sess. Laws, Senate Bill 2846, proposed an amendment to Article I, Section 14, to allow the
   legislature to provide for the inadmissibility of privileged confidential communication between an
   alleged crime victim and the alleged crime victim's licensed physician, psychologist, counselor, or
   licensed mental health professional, which was approved by the voters at the 2004 general election. The
   amendment added the proviso pertaining to inadmissible privileged confidential communication.




Professor John Barkai, U.H. Law School - Evidence                                         Page - 197
State v. Padeken                        Peseti & Rule 504.1
Unpublished opinion, 121 Hawai'i 541, 221 P.3d 519 (2009)

Defendant-Appellant Padeken was charged by indictment with three counts of third-degree sexual assault
and one count of attempted third-degree sexual assault. The alleged victim was the minor daughter (Minor)
of Padeken's then girlfriend. Counts I and II charged Padeken with third-degree sexual assault, in violation
of Hawaii Revised Statutes (HRS) § 707-732(1)(c) (Supp.2008); Count III charged him with third-degree
sexual assault, in violation of HRS § 707-732(1)(b); and Count IV charged him with attempted third-degree
sexual assault, in violation of HRS §§ 705-500 (1993) FN3 and 707-732(1)(b).

Prior to trial, Padeken obtained copies of three confidential psychological reports concerning Minor. The
circuit court precluded Padeken, based on article I, section 14 of the Hawai„i Constitution and Hawaii
Rules of Evidence (HRE) Rule 504.1 (Supp.2002) (psychologist-client privilege) and HRE Rule 505.5
(1993) (victim-counselor privilege), from using privileged information contained in the reports to
cross-examine Minor. Following a jury trial, Padeken was found guilty as charged. The circuit court
sentenced Padeken to concurrent terms of five years of probation, subject to a one-year term of
imprisonment…

The victim-counselor privilege set forth in HRE Rule 505.5 “encourages and protects the counseling of
emotionally distressed victims of violent crimes by according privilege status to confidential
communications made in the course of the counseling process.” Commentary to HRE Rule 505.5.

In State v. Peseti, 101 Hawai„i 172, 65 P.3d 119 (2003), the Hawai„i Supreme Court considered the
interplay between the statutory victim-counselor privilege under HRE Rule 505.5(b) and a criminal
defendant's constitutional right to confront adverse witnesses as guaranteed by article I, section 14 of the
Hawai„i Constitution. Id. at 174, 180 n. 13, 65 P.3d at 121, 127 n. 13. Peseti was charged with third-degree
sexual assault for knowingly subjecting his hanai daughter to sexual contact. Id. at 175, 65 P.3d at 122.
Before trial, Peseti was told by a Child Protective Services (CPS) social worker that the complainant had
recanted her allegations of sexual abuse to a victim counselor. Id. at 175-76, 65 P.3d at 122-23. At trial,
Peseti sought to cross-examine the complainant as to whether she had previously told her “therapist” that
her allegations of sexual abuse by Peseti “really didn't happen[.]” Id. at 177, 65 P.3d at 124. The circuit
court sustained the prosecutor's objection to Peseti's cross-examination relating to the complainant's
recantation to the “therapist” on the ground that complainant's statements were privileged. Id.

The supreme court vacated Peseti's conviction, holding that, “when a statutory privilege interferes with a
defendant's constitutional right to cross-examine, then, upon a sufficient showing by the defendant, the
witness' statutory privilege must, in the interest of the truth-seeking process, bow to the defendant's
constitutional rights.” Id. at 181, 65 P.3d at 128. The supreme court articulated the following test for
determining whether the right of confrontation under the Hawai„i Constitution trumped a statutory
privilege:

  Although it stands to reason that the right of confrontation via cross-examination, as guaranteed by
  article I, section 14 of the Hawai„i Constitution, will not trump a statutory privilege in every case in
  which a conflict arises between the two, we believe that fundamental fairness entitles a defendant to
  adduce evidence of a statutorily privileged confidential communication at trial when the defendant
  demonstrates that: ‘(1) there is a legitimate need to disclose the protected information; (2) the
  information is relevant and material to the issue before the court; and (3) the party seeking to pierce the
  privilege shows by a preponderance of the evidence that no less intrusive source for that information

Professor John Barkai, U.H. Law School - Evidence                                    Page - 198
  exists.‟

 Id. at 182, 65 P.3d at 129 (emphasis added) (quoting State v.. L.J.P., 637 A.2d 532, 537
(N.J.Super.Ct.App.Div.1994)).

In 2004, after the Peseti decision, article I, section 14 of the Hawai„i Constitution was amended by adding
the following underscored language to the confrontation clause provision, so that, as amended, article I,
section 14 now reads in pertinent part as follows:

   In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
  against the accused, provided that the legislature may provide by law for the inadmissibility of privileged
  confidential communications between an alleged crime victim and the alleged crime victim's physician,
  psychologist, counselor or licensed mental health professional ....

Hawai„i Const. art. I, § 14 (emphasis added).

On appeal, Padeken asserts that under Peseti, his constitutional right of confrontation trumps the
psychologist-client privilege and the victim-counselor privilege set forth, respectively, in HRE Rule 504.1
and Rule 505.5. Padeken argues that notwithstanding the 2004 amendment to article I, section 14 of the
Hawai„i Constitution, the Peseti test still stands and that under that test, he was entitled to use Minor's
privileged communications to impeach Minor.

Amicus Curiae Attorney General of the State of Hawai„i (Amicus Curiae) asserts that the post-Peseti, 2004
amendment to article I, section 14, “imbues the legislature's statutory privileges with absolute protection
under the State Constitution.” The State agrees with the Amicus Curiae and asserts that pursuant to the
2004 amendment to article I, section 14, Minor's communications with her mental health counselor and
therapist were “absolutely privileged.” The State further argues that assuming arguendo that Minor's
communications were not absolutely privileged, Padeken failed to make the showing required by Peseti to
pierce the psychologist-client and victim-counselor privileges.

We conclude that Padeken failed to demonstrate that he was entitled to use Minor's privileged
communications under the test set forth in Peseti, and we affirm the circuit court's in limine ruling on that
basis. We do not address or decide what effect the 2004 amendment to article I, section 14 of the Hawai„i
Constitution has on determining whether a defendant may use the privileged communications of an alleged
crime victim at trial. Padeken does not contend that the 2004 amendment to article I, section 14 served to
weaken the psychologist-client and victim-counselor privileges in any way. In addition, because state
constitutional requirements cannot be less protective of a criminal defendant's rights than the federal
constitution, we presume that the test formulated by the Hawai„i Supreme Court in Peseti was also designed
to comply with federal constitutional requirements. Thus, Padeken at minimum was required to satisfy the
Peseti test in order to demonstrate that he was entitled to use Minor's privileged communications.

Under the Peseti test, Padeken had the burden of demonstrating “(1) there is a legitimate need to disclose
the protected information; (2) the information is relevant and material to the issue before the court; and
(3) ... by a preponderance of the evidence that no less intrusive source for that information exists.” Peseti
at 182, 65 P.3d at 129. Padeken sought to use Minor's confidential communications to impeach her
testimony at trial. Padeken contends that he could have used Minor's privileged communications to point
out inconsistencies in her testimony and to show her possible bias and motive to fabricate the allegations
against Padeken.


Professor John Barkai, U.H. Law School - Evidence                                     Page - 199
We have carefully reviewed the reports containing Minor's privileged communications and the record in
this case, and we conclude that the impeachment value of Minor's privileged communications was very
minimal. We further conclude that Padeken did not meet his burden under Peseti of demonstrating a
legitimate need to disclose the protected information or that there was no less intrusive source for the
protected information. The inconsistencies on which Padeken sought to impeach Minor involved
non-critical or collateral discrepancies and would not have served to cast doubt on Minor's testimony in any
significant way. While the cited inconsistencies may have suggested a lack of perfect memory by Minor,
they would not have reasonably supported an inference that Minor had lied about being sexually abused by
Padeken.

Furthermore, there was no legitimate need for Padeken to use Minor's privileged communications because
he was able to impeach Minor through other means that were at least as effective. Minor was subjected to
extensive cross-examination by Padeken at trial. Padeken established through cross-examination that
Minor's memory of the events was not perfect. Minor acknowledged that she was not sure of the exact
sequence or timing of the alleged incidents of sexual abuse. Padeken also impeached Minor with
discrepancies between her trial testimony and statements she had given to the police.

Through evidence presented at trial, Padeken was also able to develop his claim that Minor was biased and
had fabricated the allegations against Padeken because she disliked him and wanted to escape his discipline.
Therefore, there was no legitimate need to use Minor's privileged communications to impeach Minor on
these grounds and there was a less intrusive source for such impeachment. Padeken elicited evidence that
he was a much stricter disciplinarian than Mother and that this caused friction between Minor and Padeken.
Minor testified at trial that she did not like Padeken's strict house rules and that she and Padeken had
disagreements about her chores, her choice of friends, and her refusal to attend church.

The record shows that Padeken had less intrusive, non-privileged sources for the protected information.
Minor provided non-privileged written and videotaped statements to the police. Moreover, Mother, who
was called as a defense witness, and Padeken himself were available to provide the defense with
information relevant to Minor's allegations and about why Minor might have a motive to lie. Under these
circumstances, we hold that the circuit court did not violate Padeken's constitutional right of confrontation
by precluding Padeken from using Minor's privileged communications to cross-examine or impeach Minor
at trial.

We affirm the Judgment of the circuit court.




Professor John Barkai, U.H. Law School - Evidence                                    Page - 200
                         PRIVILEGE PROBLEMS

1) Father, who is charged with business fraud, talks with his daughter who is a 3L at U.H.
       Law School. He admits some shady business practices to his daughter. Can the
       daughter be called as a witness against her dad or is the conversation protected by
       a privilege?



2) Father then goes to see the lawyer for whom his daughter works as a law clerk. Father
       discusses his problem with the lawyer while his own daughter is in the office? Is
       the discussion with the lawyer in the daughter's presence privileged?



3) The lawyer thinks the father is disgusting, throws him out of the office, and refuses to
       take the case. Was the discussion with the lawyer privileged?



4) Father consults with Lawyer # 2, who takes the case, but is licensed to practice in Iowa,
       not Hawaii. Is father's discussion with Lawyer # 2 privileged?



5) Father also consulted with "Lawyer # 3" who is not licensed to practice law anywhere.
       He failed the bar 5 times. He finally just bought a copy of the Hawaii Rules of
       Evidence, printed a diploma on his computer, hung the diploma on his office wall,
       and then just started practicing law. Is father's discussion with Lawyer # 3
       privileged?



6) D is arrested and calls a lawyer from the jail while a police officer stands next to him and
        listens. May the police officer testify to what D told her lawyer?



7) D is released from jail and goes to talk to her lawyer. The police have the law office
        bugged. May the person listening to the bug testify to what D told her lawyer?




Professor John Barkai, U.H. Law School - Evidence                                Page - 201
7.5)   Defendant, out on bail awaiting trial on a criminal charge, speaks with her attorney
       about the case using a cordless telephone. Unknown to Defendant, a glitch in the
       signals causes the conversation to be transmitted to Witness, who is located nearby
       speaking on her own cordless phone. Witness reports the conversation to the police,
       and the prosecution calls her to testify at trial about what she heard. Defendant
       objects on confidentiality grounds. How should the court rule? (LG 545 4)



8) Criminal co-defendants jointly consult a lawyer. D1 wishes to turn "state's evidence"
       and testify against D2 (in hopes of getting a "deal" from the prosecution). Can D1
       testify to what D2 said during the meeting between D1, D2, and the lawyer?



9) In the problem above, can D1 testify to what he (D1) said during the meeting with D2
        and the lawyer?



10) BUBBLES. D admits to his lawyer that he threw the first punch during a fight.

       A) Can prosecutor ask D "Didn't you tell your lawyer that you threw the first
       punch?" B) Can prosecutor ask D "Didn't you throw the first punch?"



11) Murder case. D sent his attorney a package with the murder weapon and a note which
      reads: "Here is the gun I used in the shooting. You decide what to do with it." What
      should the attorney do with the note and the gun?



11.1) From his desk at work, Collin sends his lawyer an e-mail message seeking legal
      advice. Collin's employer randomly monitors e-mail messages sent to and from
      Collin's workplace, in order to ensure the computer system is not misused. Collin
      was informed of the monitoring when he joined the company, but has forgotten
      about it. As it happens, Collin's employer does not read his message to his
      lawyer. Is the message privileged? Would the answer be different if the employer
      did read the message? (SK 578)



11.2) Breach of contract action. Plaintiff takes Defendant s deposition, and asks
      Defendant about conversations she had with her attorney. Defendant objects on the
      basis of the attorney-client privilege. Plaintiff responds that the privilege does not
      apply because the deposition is part of the discovery process, not the trial, and the
      rules of evidence do not apply during discovery. What result should occur? (LG
      545 6)


Professor John Barkai, U.H. Law School - Evidence                             Page - 202
12) A few days after an auto accident, the defendant driver gave a statement to the
       insurance company's investigator who worked for the defendant's insurance
       company. The insurance company later gave the statement to the lawyer it hired to
       represent the defendant. Is that statement discoverable by the injured plaintiff or is
       it privileged? See, Dicenzo v. Izawa 723 P.2d 171 (1986)



13) Paki, a civil plaintiff, does not appear in court. Paki's lawyer refuses to disclose to the
       judge Paki's whereabouts or the identities of third parties who may know Paki's
       whereabouts. Are Paki's whereabouts and the identities of the third parties
       protected by a privilege? See, Sapp v. Wong 62 Haw. 34; 609 P.2d 137 (1980).



14) B Corporation consults with its attorneys about pending litigation against the company.
        A technician in B Corporation is told, by his supervisor, to cooperate with the
       attorneys and give them his statement. The technician is subpoenaed by the party
       suing B Corporation and will be asked to provide information about his
       communication with the attorneys for B Corporation. Will the technician and
       Corporation B be able to claim the attorney-client privilege? (SF: 248)



15) OLD MOVIES. D shoots V and a woman sees it. D says "Howzit beautiful? Will you
      marry me?" They get married. Can W be compelled to be a witness by the
      prosecution at D's trial?



16) SPOUSES. D returns home from seeing a lawyer and tells his wife that he told the
      lawyer that he shot V. Has D waived his privilege with his lawyer?



17) ALL IN THE FAMILY. In the problem above, after D tells his story about his meeting
      with the lawyer to his wife, his daughter walks into the room and he repeats the
      story. Has D waived his privilege?



18) First degree murder. Are the following statements privileged? D's former wife testified
       to what she heard, while she was married to D:

       1) a conversation (in her presence) between D and an alleged accomplice during
           which they planned the murder;


Professor John Barkai, U.H. Law School - Evidence                                Page - 203
       2) when they were alone one night, her husband told her explicit details about the
           killing;

       3) D's bragging to friends (in her presence) about his involvement in the murder
           while he was drinking in a bar.

                                       See, State v. Levi 67 Hawaii 247; 686 P.2d 9 (1984)



19) An auto accident resulted in a death of one of the drivers. In a criminal, negligent
      homicide case is a statement privileged if the statement was made by the defendant
      driver to his doctor about the accident? The doctor will testify that in order to
      evaluate properly the condition of his patient, it was necessary for him to elicit from
      the patient the details of the accident in which he had been involved.

                                   See, State v. Swier 66 Hawaii 448; 666 P.2d 169 (1983)



20) During a physical examination of the patient during a visit to the doctor, the doctor sees
      scars below X's belt. The doctor is called as a witness to testify about the scars. Is
      the view of the scars privileged?



21) Plaintiff is hurt in an auto accident. Plaintiff's lawyer sends her to a doctor for an
       opinion regarding the extent of plaintiff's permanent disability. Is the doctor's
       opinion privileged?




Professor John Barkai, U.H. Law School - Evidence                                Page - 204
       PRESUMPTIONS

As an example of a statutory privilege:




                 PRESUMPTION OF PATERNITY
                                      HRS § 584-4

   (a) A man is presumed to be the natural father of a child if:



  (1) He and the child's natural mother are or have been married to each other
and the child is born during the marriage. ...



   (b) A presumption under this section may be rebutted in an appropriate action
only by clear and convincing evidence. ...




Professor John Barkai, U.H. Law School - Evidence                   Page - 205
                    PRESUMPTION PROBLEMS
                      Hypos from L. Letwin, Evidence Law, (1986)



1. P was removed as a member of the Civil Service Commission because he was
elected to his local Neighborhood Board. P's removal was done to comply with the
following law:

   HRS 76-51 The office of any member of the civil service commission who
   occupies any elective or appointive office shall be conclusively presumed to
   have been abandoned and vacated by reason thereof and the governor shall
   thereupon appoint a qualified person to fill the vacancy.

P has filed suit for wrongful discharge.



1A. At trial, P claims that a neighborhood board position is not an elective office.
Corporation counsel argues that it is. P wants no instruction to be given to the jury
(claiming the bubble burst). Corporation counsel says the proper instruction is "if
you find that P did occupy an elective office, you must find that the office was
abandoned and vacated." Should the judge give that instruction?



1B. Suppose P does not contest that the neighborhood board position is an
elective office, but P wants to offer evidence that he has not abandoned and
vacated his civil service commission because his neighborhood board position is
part-time, can be done on the evenings and weekends, and in no way interferes
with his civil service commission position. Is that evidence admissible?



2. P sues to recover $300 from D, a mail order photography store on the mainland.
 P claims he sent a money order for $300 to D, but never received the camera that
he ordered. As proof of payment, P testifies that he placed a money order in an
envelope properly addressed to D, he put the correct postage on the envelope,
and he deposited the envelope in a U.S. mail box.



2A. D rests without cross-examining P or offering any evidence contradicting P's
claim that he had sent the money. D then moves for dismissal arguing that P has
offered insufficient evidence of mailing to meet his burden of proof. What ruling
on D's motion to dismiss? Is P entitled to any instruction? If so, how should the
instruction read?


Professor John Barkai, U.H. Law School - Evidence                       Page - 206
2B. Same case. After P rests, D offers a witness who testifies that on the date P
claims to have mailed the letter, P was hospitalized and in traction, and thus
incapable of mailing a letter. No one from D's business testifies that they did not
receive the letter. What is the proper instruction for the jury?



2C. Same case. Instead of the hospital testimony, D offers the testimony of D's
mailroom clerk who maintains regular, routine business records of all incoming
mail orders on money received. The clerk says that if money was received, he
would have a record of it. He says that he has no such record, and therefore no
money was received from P. D rests.

  P then asks for alternative instructions that 1) the letter is presumed to have
been received by D, or 2) that the jury is to believe that the money was received
by D unless the jury believes the testimony that the money was not received. What
instruction should the court give?



2D. Same case. D offers both the evidence that P was hospitalized and that there
was no receipt of money. P then asks for an instruction that if the jury finds that the
letter was properly addressed and mailed then they must find that the letter and
check was received. Should that instruction be given?



3. Civil suit by P (mother) against D (a life insurance company) to collect on a
$50,000 life insurance policy on P's son. As evidence of son's death, P testifies
that 1) her son ran away from home when he was 18 years old, 2) she has not
heard from him in 6 years, and 3) she knows of no one who has heard from him.
P offers no other evidence of the son's death.



3A. D rests without cross-examining or offering any witnesses, and moves for
dismissal, arguing that P has offered insufficient evidence of the death of her son
to meet her burden of proof. What should the court rule?



3B. Same case. D offers evidence that P received a letter from her son 4 years
after he left. D does not offer any evidence that the son is alive at the time of trial.
 P asks for a presumption instruction. What should the instruction say?




Professor John Barkai, U.H. Law School - Evidence                          Page - 207
3C. Same case. D offers evidence that one year ago the Bombay police had
arrested a person whose fingerprints matched those of the son. The person was
released from custody shortly after the prints were taken. There is no further
information about this person. What presumption instruction should be given?



3D. D offers both the fingerprint evidence and the letter evidence. P asks for a
presumption instruction that if the jury resolves the basic facts in favor of P, then it
must find for P, unless the jury believes that D, by a preponderance of the
evidence, has established that the son is alive today. What ruling?




Professor John Barkai, U.H. Law School - Evidence                          Page - 208
  JUDICIAL NOTICE




Professor John Barkai, U.H. Law School - Evidence   Page - 209
STATE v. LORENZO, 77 Hawai'i 219, 883 P.2d 641 (1994)

[Read this case just to see an example of an appellate court taking judicial notice.]



   HEEN, Judge.



   Upon his plea of nolo contendere, Defendant-Appellant Anthony Lorenzo (Lorenzo) was
adjudged guilty of the offenses of failing to render assistance after being involved in an automobile
accident, ... driving without a license, ... and negligent injury...



     Lorenzo appeals, arguing that the lower court erred in denying his pretrial motion (Motion) to
dismiss the indictment. The essence of the Motion is that the Kingdom of Hawai'i (Kingdom) was
recognized as an independent sovereign nation by the United States in numerous bilateral treaties;
the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom
still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of
Hawai'i have no jurisdiction over him. Lorenzo makes the same argument on appeal. For the reasons
set forth below, we conclude that the lower court correctly denied the Motion.



    The lower court in this case orally ruled: [A]lthough the Court respects Defendant's freedom of
thought and expression to believe that jurisdiction over the Defendant for the criminal offenses in the
instant case should be with a sovereign, Native Hawaiian entity, like the Kingdom of Hawaii
[Hawai'i], such an entity does not preempt nor preclude jurisdiction of this court over the
above-entitled matter.



    The essence of the lower court's decision is that even if, as Lorenzo contends, the 1893 overthrow
of the Kingdom was illegal, that would not affect the court's jurisdiction in this case. Although the
court's rationale is open to question in light of international law, the record indicates that the decision
was correct because Lorenzo did not meet his burden of proving his defense of lack of jurisdiction.
HRS 701-115(2). Therefore, we must affirm the judgment. State v. Schroeder, 76 Hawai'i 517, 880
P.2d 192 (1994) (citing Brooks v. Minn, 73 Haw. 566, 576, 836 P.2d 1081, 1087 (1992)).



                                                  ***




Professor John Barkai, U.H. Law School - Evidence                                          Page - 210
    We also take judicial notice that within the Native Hawaiian community there is more than one
group that has disavowed Act 359's process and has declared itself to be either independent of the
State and the United States or has established its own constitution establishing a Native Hawaiian
"Nation within a Nation." At least one of those groups bases its declaration of independence on P.L.
103-150. Some of those groups have actively sought recognition internationally and from the United
States government as a reorganized sovereign Hawaiian nation. However, none has been successful
so far.



    Although it may be argued, as do many Native Hawaiians, that the actions and the declarations of
the United States and the State are not determinative of the question of the continued existence of the
Kingdom, those actions, and the actions of the various Native Hawaiian groups referred to above,
illustrate that there is no clear consensus that the Kingdom does continue to exist. Consequently, it
was incumbent on Defendant to present evidence supporting his claim. United States v. Lorenzo.
Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in
accordance with recognized attributes of a state's sovereign nature. Consequently, his argument that
he is subject solely to the Kingdom's jurisdiction is without merit, and the lower court correctly
exercised jurisdiction over him.

                                                   ***

   The judgment is affirmed.




Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
R201 [I]t is a well-settled principle that the decision of another court or agency, including the
decision of an administrative law judge, is a proper subject of judicial notice. Judicial notice is limited,
however, to the existence and terms of the judicial record; it does not extend to the truth of
                                                                                                  th
statements quoted in the record, or to factual findings. Wyatt v. Terhune, 315 F.3d 1108 (9
Cir.2003).
Examples:
•         That certain matters have been posted on a website. Denius v. Dunlap, 330 F.3d 919, 926
(7th Cir.2003).
•         "[T]he fact that various newspapers, magazines, and books have published information * *
*. Courts may take judicial notice of publications introduced to `indicate what was in the public realm
at the time, not whether the contents of those articles were in fact true.' " Von Saher v. Norton Simon
Museum of Art at Pasadena, 578 F.3d 1016, 1022 (9th Cir.2009).




Professor John Barkai, U.H. Law School - Evidence                                          Page - 211
STATE v. VALLEJO, 9 Haw.App. 73, 823 P.2d 154 (1992)
     HEEN, Judge.

     On October 11, 1990, Defendant-Appellant Henry Saturno Vallejo (Defendant) was convicted after
a bench trial of operating his automobile in excess of the posted speed limit of 25 miles per hour (mph), in
violation of Hawaii Revised Statutes (HRS) s 291C-102(a) (1985).

       Defendant was cited for traveling at a speed of 49 mph in a 25 mph zone on Kapahulu Avenue after
he was "shot" with a K-15 radar gun by the citing police officer (Officer). [FN2] At the trial, the Officer
testified that Defendant passed a 25 mph speed limit sign posted on Kapahulu Avenue near the spot where
he was shot. The Officer also testified:



     FN2. We take judicial notice that Kapahulu Avenue is a county highway. Rule 201(b) and (f), Hawaii
Rules of Evidence (HRE) (1985).

                                                    ***

     The trial court then took judicial notice of the schedules of speed limits (Schedules) on county
highways on file with the clerk of the district court and found the official speed limit on Kapahulu Avenue
was 25 mph.

                                                    ***

     Speed limits for Honolulu county roads are established by Revised Ordinances of Honolulu (ROH)
1978 Chapter 15 (1983 ed.), the Traffic Code. The Traffic Code establishes a myriad of regulations,
including speed limits, governing traffic on county roads. Speed limits are established by ROH s 15-7.2.
The names of the individual streets covered by the speed limits in ROH s 15-7.2 are listed in Schedules IV
through X, XXXIII, and XXXVII, attached to and incorporated in the Traffic Code. Rule 202(b), Hawaii
Rules of Evidence (HRE) (1985), requires the courts to take judicial notice of all duly enacted ordinances.
 When the court took judicial notice of the Schedules filed with the clerk, it took judicial notice of ROH s
15-7.2. Consequently, the ordinance was proved.



                                                    ***

     Defendant's final argument is that, even if the [speed limit] sign was official, the presumption of HRS
s 291C-31(c) cannot be used to establish that the sign was placed under lawful authority. We disagree.



     The pertinent provisions of HRS s 291C-31 (1985) read as follows:

     Obedience to and required traffic-control devices. (a) The driver of any vehicle shall obey the
     instructions of any official traffic-control device applicable thereto placed in accordance with law,
     unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of
     an authorized emergency vehicle in this chapter.

                                              * * * * * *

Professor John Barkai, U.H. Law School - Evidence                                            Page - 212
     (c) Whenever official traffic-control devices are placed in position approximately conforming to law,
     such devices shall be presumed to have been so placed by the official act or direction of lawful
     authority, unless the contrary shall be established by competent evidence.



     Defendant contends that the presumption is mandatory and unconstitutionally shifts the burden of
proof to him, thus relieving the State of the burden of proving an element of the offense charged. [FN7]
The argument is without merit.



     FN7. We agree with Defendant that official authority for placement of the sign is an element of the
offense, since it is an attendant circumstance proving official notice. HRS s 702-205(b) (1985).



     A presumption is a deduction or an inference that may be drawn by the trier of fact from certain facts
found or established during the course of a trial.... A statutory presumption that shifts the burden to an
accused to disprove any element of the offense charged is invalid....



     The judgment of the legislature in establishing a presumption is to be given great weight by the courts,
"provided it is based on common experience or reliable empirical data[.]"...



     In State v. Williams, 415 N.W.2d 351 (Minn.App.1987), the court considered language nearly
identical to HRS s 291C-31(c) and held that proof of the underlying facts was prima facie evidence of the
presumed fact.... Consequently, the defendant was required to produce proof, if he could, to rebut the
government's case.

       In State v. Brighter, supra, our supreme court reviewed the guidelines established by the United States
Supreme Court for determining the constitutionality of the relationship between the proven fact and the
inferred fact in the presumption. The Brighter court noted that in Tot v. United States, 319 U.S. 463, 63
S.Ct. 1241, 87 L.Ed. 1519 (1943), "the Supreme Court declared that a 'rational connection' must exist
between the fact proven and the fact inferred in order to satisfy the requirements of due process," and in
Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court held that a
statutory inference cannot be sustained on constitutional grounds " 'unless it can at least be said with
substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which
it is made to depend.' " Brighter, 61 Haw. at 104, 595 P.2d at 1076 (citation omitted).



      In our case, the legislature has required every motor vehicle driver to "obey the instructions of any
official traffic-control device ... placed in accordance with law[.]" HRS s 291C-31(a). The presumption
of HRS s 291C-31(c) reflects the legislature's intent that the prosecution should not be required "to go
through the hoops" and prove not only that the traffic control device in question is official and properly
placed but that it has been placed by lawful authority. [FN8]




Professor John Barkai, U.H. Law School - Evidence                                            Page - 213
     FN8. In reviewing the validity of a similar presumption in the New York statute, the New York Court
of Appeals stated that the purpose of the presumption is to avoid the necessity of proving strict compliance
with the requirements for posting of traffic control devices through a showing that the signs in question
substantially comply with those requirements and provide fair notice of the traffic regulation. People v.
Northrup, 142 Misc.2d 973, 974, 539 N.Y.S.2d 246, 247 (N.Y.Just.Ct.1988).



      HRS s 291C-31(c)'s presumption is the legislature's recognition of the common experience that,
where an official traffic control device is in a legally proper place on the highway, it was placed there by
some properly authorized agent of the government. Therefore, the legislative intent expressed in the statute
is that, if the State has proved the official nature of the traffic control device and its position approximately
conforming to law, it has established prima facie that the device was placed under authority of law. The
State need not produce evidence of the authority but may rely on the presumption. In our view, HRS s
291C-31(c)'s presumption meets both the Tot test and the Leary test. The statute does not impermissibly
shift the burden of proof, since the State is still required to convince the trier of fact that the presumption
flows from the proven facts. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).



      Finally, contrary to Defendant's argument, we do not deem HRS s 291C- 31(c)'s presumption to be
mandatory. Although the word shall is normally accorded a mandatory meaning when used in a statute, it
may be given a directory meaning when it comports with the legislature's intention. State v. Himuro, 70
Haw. 103, 761 P.2d 1148 (1988). As we have indicated above, the legislature's intent in s 291C-31(c) was
merely to ease the formality of proving the official nature of the traffic device. We find nothing in the
statute to indicate that the legislature intended the presumption to be mandatory.

                                                       2.

      The Officer's testimony was sufficient to allow the trial court to conclude beyond a reasonable doubt
that the sign was placed under lawful authority. Consequently, contrary to his argument, the presumption
was not unconstitutionally applied to Defendant in this case.

     Affirmed.




Professor John Barkai, U.H. Law School - Evidence                                               Page - 214
                   JUDICIAL NOTICE PROBLEMS



1. Tort suit from an auto accident at University and Dole. P asks the court to take judicial
notice of the following facts (1) that there was no rain in Honolulu on the day of the accident
and (2) that the pavement at the intersection was dry. In support of request for judicial notice,
P produces a copy of the official weather bureau record for Honolulu for the day of the
accident, which shows no precipitation was recorded. Should judicial notice be taken?



2. SUBPOENA. D is cited to show cause why he should not be held in contempt of court
for failing to appear as a witness in a trial after being served with a subpoena. D denies he
received the subpoena. The prosecutor asks the court to take judicial notice that D was served
with the subpoena, directing the court's attention to a properly executed return of service filed
by the sheriff and included as part of the record of the case. The prosecutor also asks the court
to take judicial notice of the fact that D was previously held in contempt for failure to appear
at an earlier hearing of the same case, and was twice held in contempt at trials on the
mainland.



3. FOOTBALL FAN. D is charged with robbery and claims as an alibi that he was
watching football with friends. The prosecutor wants the court to take judicial notice that TV
Guide shows no football game of any type on television at time of the robbery.



4.   Government of Virgin Islands v Gereau.

Nine-day jury deliberation. Later, one juror said the bailiff told her "they should hurry up so
I can get home." Bailiff denied the conversation. Judge believed the bailiff because he knew
she was interested in earning extra money from extra work. Did the court take proper judicial
notice? Was it error?



5.   DEADLY WEAPON

    D is a karate expert charged with "assault with a deadly weapon, to wit: his hands."
Prosecuting attorney gets the judge to take judicial notice that the hands of a karate expert
qualify as a deadly weapon under the statute. D wants to introduce evidence from another
karate expert that karate is not a dangerous sport and that the hands of an expert are not
dangerous weapons. Should the judge admit D's evidence?

Professor John Barkai, U.H. Law School - Evidence                                 Page - 215
6. Prosecution of Defendant for robbing a convenience store. Defendant claims she was in
church attending Sunday services when the robbery took place. The prosecutor asks the court
to take judicial notice that the date of the robbery fell on a Wednesday, not a Sunday, and
provides the court with a Sierra Club calendar. May the court take judicial notice? (LG 73 1)



7. Same facts. The prosecutor asks the court to instruct the jury that the day on which the
robbery occurred was a Wednesday. Defendant objects. How should the court rule? (LG 74
2)



8. Defendant appeals a judgment for Plaintiff in a negligence action arising from an
accident in which Defendant s car struck Plaintiff while Plaintiff was crossing the street. At
trial, Plaintiff alleged that Defendant was going 50 miles per hour in a school zone, where by
law the speed limit is 25 miles per hour. However, Plaintiff failed to offer evidence that the
location of the accident was a school zone. On appeal, Plaintiff asks the court to take judicial
notice that the block where the accident occurred is a school zone. Defendant does not deny
the truth of this fact, but claims that it would be improper for the court to take judicial notice
on appeal. How should the court rule? (LG 74 3)



9. Personal injury action by Plaintiff against Defendant arising from the head-on collision
after Defendant s car crossed the center line. Plaintiff claims this occurred because
Defendant was not paying attention. Defendant claims her car suddenly ran through a deep
puddle, causing her to lose control. Defendant claims she was driving carefully and that
because she was unfamiliar with the area, she had no way to anticipate such a large puddle on
an otherwise dry road. (It had rained two days before but had been dry since then.) Defendant
asks the court to take judicial notice that a large puddle often forms at this location and
remains for up to a week or two after a rainstorm. The judge is personally aware that this is
true. Should the court take judicial notice? (LG 74 5)




Professor John Barkai, U.H. Law School - Evidence                                  Page - 216
      CONFRONTATION
        & HEARSAY




Professor John Barkai, U.H. Law School - Evidence   Page - 217
                               CRAWFORD v. WASHINGTON

                                    124 S. Ct. 1354 (2004)




Professor John Barkai, U.H. Law School - Evidence            Page - 218
  JUSTICE SCALIA delivered the opinion of the Court. Petitioner Michael Crawford stabbed a man who
allegedly tried to rape his wife, Sylvia. At his trial, the State played for the jury Sylvia‘s tape-recorded
statement to the police describing the stabbing, even though he had no opportunity for cross-examination.
The Washington Supreme Court upheld petitioner‘s conviction after determining that Sylvia‘s statement was
reliable. The question presented is whether this procedure complied with the Sixth Amendment‘s guarantee
that, ―in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.‖
                                                           I
  On August 5, 1999, Kenneth Lee was stabbed at his apartment. Police arrested petitioner later that night.
After giving petitioner and his wife Miranda warnings, detectives interrogated each of them twice. Petitioner
eventually confessed that he and Sylvia had gone in search of Lee because he was upset over an earlier
incident in which Lee had tried to rape her. The two had found Lee at his apartment, and a fight ensued in
which Lee was stabbed in the torso and petitioner‘s hand was cut.
  Petitioner gave the following account of the fight:
  ―Q. Okay. Did you ever see anything in [Lee‘s] hands?
  ―A. I think so, but I‘m not positive.
  ―Q. Okay, when you think so, what do you mean by that?
  ―A. I coulda swore I seen him goin‘ for somethin‘ before, right before everything happened. He was like
reachin‘, fiddlin‘ around down here and stuff . . . and I just . . . I don‘t know, I think, this is just a possibility,
but I think, I think that he pulled somethin‘ out and I grabbed for it and that‘s how I got cut . . . .‖
  Sylvia generally corroborated petitioner‘s story about the events leading up to the fight, but her account of
the fight itself was arguably different—particularly with respect to whether Lee had drawn a weapon before
petitioner assaulted him:
  ―Q. Did Kenny do anything to fight back from this assault?
  ―A. (pausing) I know he reached into his pocket . . . or somethin‘ . . . I don‘t know what.
  ―Q. After he was stabbed?
  ―A. He saw Michael coming up. He lifted his hand . . . his chest open, he might [have] went to go strike his
hand out or something and then (inaudible).
  ―Q. Okay, you, you gotta speak up.
  ―A. Okay, he lifted his hand over his head maybe to strike Michael‘s hand down or something and then he
put his hands in his . . . put his right hand in his right pocket . . . took a step back . . . Michael proceeded to
stab him . . . then his hands were like . . . how do you explain this . . . open arms . . . with his hands open and
he fell down . . . and we ran (describing subject holding hands open, palms toward assailant).
  ―Q. Okay, when he‘s standing there with his open hands, you‘re talking about Kenny, correct?
  ―A. Yeah, after, after the fact, yes.
  ―Q. Did you see anything in his hands at that point?
  ―A. (pausing) um um (no).‖ Id., at 137 (punctuation added).
  The State charged petitioner with assault and attempted murder. At trial, he claimed self-defense. Sylvia
did not testify because of the state marital privilege, which generally bars a spouse from testifying without the
other spouse‘s consent. In Washington, this privilege does not extend to a spouse‘s out-of-court statements
admissible under a hearsay exception, so the State sought to introduce Sylvia‘s tape-recorded statements
to the police as evidence that the stabbing was not in self-defense. Noting that Sylvia had admitted she led
petitioner to Lee‘s apartment and thus had facilitated the assault, the State invoked the hearsay exception

Professor John Barkai, U.H. Law School - Evidence                                             Page - 219
for statements against penal interest, Wash. Rule Evid. 804(b)(3) (2003).
  Petitioner countered that, state law notwithstanding, admitting the evidence would violate his federal
constitutional right to be ―confronted with the witnesses against him.‖ Amdt. 6. According to our description
of that right in Ohio v. Roberts, 448 U.S. 56 (1980), it does not bar admission of an unavailable witness‘s
statement against a criminal defendant if the statement bears ―adequate ‗indicia of reliability.‘‖ To meet that
test, evidence must either fall within a ―firmly rooted hearsay exception‖ or bear ―particularized guarantees
of trustworthiness.‖ The trial court here admitted the statement on the latter ground, offering several reasons
why it was trustworthy: Sylvia was not shifting blame but rather corroborating her husband‘s story that he
acted in self-defense or ―justified reprisal‖; she had direct knowledge as an eyewitness; she was describing
recent events; and she was being questioned by a ―neutral‖ law enforcement officer. The prosecution played
the tape for the jury and relied on it in closing, arguing that it was ―damning evidence‖ that ―completely
refutes [petitioner‘s] claim of self-defense.‖ The jury convicted petitioner of assault.
      The Washington Court of Appeals reversed. It applied a nine-factor test to determine whether Sylvia‘s
statement bore particularized guarantees of trustworthiness, and noted several reasons why it did not: The
statement contradicted one she had previously given; it was made in response to specific questions; and at
one point she admitted she had shut her eyes during the stabbing. The court considered and rejected the
State‘s argument that Sylvia‘s statement was reliable because it coincided with petitioner‘s to such a degree
that the two ―interlocked.‖ The court determined that, although the two statements agreed about the events
leading up to the stabbing, they differed on the issue crucial to petitioner‘s self-defense claim: ―[Petitioner‘s]
version asserts that Lee may have had something in his hand when he stabbed him; but Sylvia‘s version has
Lee grabbing for something only after he has been stabbed.‖
  The Washington Supreme Court reinstated the conviction, unanimously concluding that, although Sylvia‘s
statement did not fall under a firmly rooted hearsay exception, it bore guarantees of trustworthiness: ―‗When
a codefendant‘s confession is virtually identical [to, i.e., interlocks with,] that of a defendant, it may be
deemed reliable.‘‖ The court explained:
  ―Although the Court of Appeals concluded that the statements were contradictory, upon closer inspection
they appear to overlap . . . .
  ―Both of the Crawfords‘ statements indicate that Lee was possibly grabbing for a weapon, but they are
equally unsure when this event may have taken place. They are also equally unsure how Michael received
the cut on his hand, leading the court to question when, if ever, Lee possessed a weapon. In this respect
they overlap.
  ―Neither Michael nor Sylvia clearly stated that Lee had a weapon in hand from which Michael was simply
defending himself. And it is this omission by both that interlocks the statements and makes Sylvia‘s
statement reliable.‖
  We granted certiorari to determine whether the State‘s use of Sylvia‘s statement violated the Confrontation
Clause.
                                                        II
  The Sixth Amendment‘s Confrontation Clause provides that, ―in all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.‖ . . . Petitioner argues that [the
Roberts] test strays from the original meaning of the Confrontation Clause and urges us to reconsider it.
                                                        A
  The Constitution‘s text does not alone resolve this case. One could plausibly read ―witnesses against‖ a
defendant to mean those who actually testify at trial, those whose statements are offered at trial, or
something in-between. We must therefore turn to the historical background of the Clause to understand its
meaning.
  The right to confront one‘s accusers is a concept that dates back to Roman times. See Herrmann & Speer,
Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 VA. J. INT‘L L. 481
(1994). The founding generation‘s immediate source of the concept, however, was the common law. English

Professor John Barkai, U.H. Law School - Evidence                                        Page - 220
common law has long differed from continental civil law in regard to the manner in which witnesses give
testimony in criminal trials. The common-law tradition is one of live testimony in court subject to adversarial
testing, while the civil law condones examination in private by judicial officers.
   Nonetheless, England at times adopted elements of the civil-law practice. Justices of the peace or other
officials examined suspects and witnesses before trial. These examinations were sometimes read in court
in lieu of live testimony, a practice that ―occasioned frequent demands by the prisoner to have his ‗accusers,‘
i.e. the witnesses against him, brought before him face to face.‖ In some cases, these demands were
refused. See, e.g., Raleigh‘s Case, 2 How. St. Tr. 1, 15-16, 24 (1603).
  Pretrial examinations became routine under two statutes passed during the reign of Queen Mary in the
16th century, 1 & 2 Phil. & M., c. 13 (1554), and 2 & 3 id., c. 10 (1555). These Marian bail and committal
statutes required justices of the peace to examine suspects and witnesses in felony cases and to certify the
results to the court. It is doubtful that the original purpose of the examinations was to produce evidence
admissible at trial. Whatever the original purpose, however, they came to be used as evidence in some
cases, resulting in an adoption of continental procedure.
  The most notorious instances of civil-law examination occurred in the great political trials of the 16th and
17th centuries. One such was the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham, Raleigh‘s
alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At
Raleigh‘s trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: ―Cobham
is absolutely in the King‘s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.‖
1 D. JARDINE, CRIMINAL TRIALS 435 (1832). Suspecting that Cobham would recant, Raleigh demanded that
the judges call him to appear, arguing that ―the Proof of the Common Law is by witness and jury: let Cobham
be here, let him speak it. Call my accuser before my face . . . .‖ 2 How. St. Tr., at 15-16. The judges refused,
and, despite Raleigh‘s protestations that he was being tried ―by the Spanish Inquisition,‖ the jury convicted,
and Raleigh was sentenced to death.
  One of Raleigh‘s trial judges later lamented that ―‗the justice of England has never been so degraded and
injured as by the condemnation of Sir Walter Raleigh.‘‖ 1 JARDINE, supra, at 520. Through a series of
statutory and judicial reforms, English law developed a right of confrontation that limited these abuses. For
example, treason statutes required witnesses to confront the accused ―face to face‖ at his arraignment. E.g.,
13 Car. 2, c. 1, § 5 (1661). Courts, meanwhile, developed relatively strict rules of unavailability, admitting
examinations only if the witness was demonstrably unable to testify in person. Several authorities also stated
that a suspect‘s confession could be admitted only against himself, and not against others he implicated.
  One recurring question was whether the admissibility of an unavailable witness‘s pretrial examination
depended on whether the defendant had had an opportunity to cross-examine him. In 1696, the Court of
King‘s Bench answered this question in the affirmative, in the widely reported misdemeanor libel case of
King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584. The court ruled that, even though a witness was dead, his
examination was not admissible where ―the defendant not being present when [it was] taken before the
mayor . . . had lost the benefit of a cross-examination.‖ The question was also debated at length during the
infamous proceedings against Sir John Fenwick on a bill of attainder. Fenwick‘s counsel objected to
admitting the examination of a witness who had been spirited away, on the ground that Fenwick had had no
opportunity to cross-examine. See Fenwick‘s Case, 13 How. St. Tr. 537, 591-592 (H. C. 1696) (Powys)
(―That which they would offer is something that Mr. Goodman hath sworn when he was examined . . .; sir J.
F. not being present or privy, and no opportunity given to cross-examine the person; and I conceive that
cannot be offered as evidence . . . ―); id., at 592 (Shower) (―No deposition of a person can be read, though
beyond sea, unless in cases where the party it is to be read against was privy to the examination, and might
have cross-examined him . . . . Our constitution is, that the person shall see his accuser‖). The examination
was nonetheless admitted on a closely divided vote after several of those present opined that the
common-law rules of procedure did not apply to parliamentary attainder proceedings—one speaker even
admitting that the evidence would normally be inadmissible. Fenwick was condemned, but the proceedings
―must have burned into the general consciousness the vital importance of the rule securing the right of
cross-examination.‖ 3 W IGMORE, EVIDENCE § 1364, p. 22 (2d ed. 1923) (hereinafter Wigmore). . . .

                                                       B

Professor John Barkai, U.H. Law School - Evidence                                       Page - 221
  . . . Many declarations of rights adopted around the time of the Revolution guaranteed a right of
confrontation. See Virginia Declaration of Rights § 8 (1776); Pennsylvania Declaration of Rights § IX (1776);
Delaware Declaration of Rights § 14 (1776); Maryland Declaration of Rights § XIX (1776); North Carolina
Declaration of Rights § VII (1776); Vermont Declaration of Rights Ch. I, § X (1777); Massachusetts
Declaration of Rights § XII (1780); New Hampshire Bill of Rights § XV (1783). The proposed Federal
Constitution, however, did not. At the Massachusetts ratifying convention, Abraham Holmes objected to this
omission precisely on the ground that it would lead to civil-law practices: ―The mode of trial is altogether
indetermined; . . . whether [the defendant] is to be allowed to confront the witnesses, and have the
advantage of cross-examination, we are not yet told . . . . We shall find Congress possessed of powers
enabling them to institute judicatories little less inauspicious than a certain tribunal in Spain, . . . the
Inquisition.‖ 2 Debates on the Federal Constitution 110–11 (J. Elliot 2d ed. 1863). Similarly, a prominent
Antifederalist writing under the pseudonym Federal Farmer criticized the use of ―written evidence‖ . . . :
―Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of
the facts in question . . . . Written evidence . . . [is] almost useless; it must be frequently taken ex parte, and
but very seldom leads to the proper discovery of truth.‖ R. Lee, Letter IV by the Federal Farmer (Oct. 15,
1787). The First Congress responded by including the Confrontation Clause in the proposal that became the
Sixth Amendment. . . .
                                                        III
  This history supports two inferences about the meaning of the Sixth Amendment.
                                                        A
  First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal
procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these
practices that the Crown deployed in notorious treason cases like Raleigh‘s; that the Marian statutes invited;
that English law‘s assertion of a right to confrontation was meant to prohibit; and that the founding-era
rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.
   Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to
in-court testimony, and that its application to out-of-court statements introduced at trial depends upon ―the
law of Evidence for the time being.‖ 3 W IGMORE § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94
(1970) (Harlan, J., concurring in result). . . .
  This focus also suggests that not all hearsay implicates the Sixth Amendment‘s core concerns. An
off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under
hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On
the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the
Framers certainly would not have condoned them.
  The text of the Confrontation Clause reflects this focus. It applies to ―witnesses‖ against the accused—in
other words, those who ―bear testimony.‖ 1 N. W EBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828). ―Testimony,‖ in turn, is typically ―[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact.‖ Ibid. An accuser who makes a formal statement to
government officers bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not. The constitutional text, like the history underlying the common-law right of
confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
    Various formulations of this core class of ―testimonial‖ statements exist: ―ex parte in-court testimony or its
functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially,‖ Brief for Petitioner 23; ―extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,‖ White v.
Illinois, 502 U.S. 346, 365 (1992) (THOMAS, J., joined by SCALIA, J., concurring in part and concurring in
judgment); ―statements that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial,‖ Brief for National
Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common

Professor John Barkai, U.H. Law School - Evidence                                         Page - 222
nucleus and then define the Clause‘s coverage at various levels of abstraction around it. Regardless of the
precise articulation, some statements qualify under any definition—for example, ex parte testimony at a
preliminary hearing.
  Statements taken by police officers in the course of interrogations are also testimonial under even a
narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace
in England. The statements are not sworn testimony, but the absence of oath was not dispositive. Cobham‘s
examination was unsworn, yet Raleigh‘s trial has long been thought a paradigmatic confrontation violation.
Under the Marian statutes, witnesses were typically put on oath, but suspects were not. Yet Hawkins and
others went out of their way to caution that such unsworn confessions were not admissible against anyone
but the confessor. . . .
 In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary
object, and interrogations by law enforcement officers fall squarely within that class.

                                                      B
  The historical record also supports a second proposition: that the Framers would not have allowed
admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination. The text of the Sixth
Amendment does not suggest any open-ended exceptions from the confrontation requirement to be
developed by the courts. Rather, the ―right . . . to be confronted with the witnesses against him,‖ Amdt. 6, is
most naturally read as a reference to the right of confrontation at common law, admitting only those
exceptions established at the time of the founding. See Mattox v. United States, 156 U.S. 237, 243 (1895).
As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent
witness‘s examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment
therefore incorporates those limitations. The numerous early state decisions applying the same test confirm
that these principles were received as part of the common law in this country.
  We do not read the historical sources to say that a prior opportunity to cross-examine was merely a
sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that
this requirement was dispositive, and not merely one of several ways to establish reliability. This is not to
deny, as THE CHIEF JUSTICE notes, that ―there were always exceptions to the general rule of exclusion‖
of hearsay evidence. Several had become well established by 1791. See 3 W IGMORE § 1397, at 101. But
there is scant evidence that exceptions were invoked to admit testimonial statements against the accused
in a criminal case. FN3


     FN3 The one deviation we have found involves dying declarations. The existence of that exception as
     a general rule of criminal hearsay law cannot be disputed. See, e.g., Mattox v. United States, 156 U.S.
     237, 243–44 (1895). Although many dying declarations may not be testimonial, there is authority for
     admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment
     incorporates an exception for testimonial dying declarations. If this exception must be accepted on
     historical grounds, it is sui generis.


 Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example,
business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers
thought exceptions would apply even to prior testimony.

                                                      IV
  Our case law has been largely consistent with these two principles. Our leading early decision, for example,
involved a deceased witness‘s prior trial testimony. Mattox v. United States, 156 U.S. 237 (1895). In allowing
the statement to be admitted, we relied on the fact that the defendant had had, at the first trial, an adequate


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opportunity to confront the witness: ―The substance of the constitutional protection is preserved to the
prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the
ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of . . . .‖ Id.,
at 244.
   Our later cases conform to Mattox‘s holding that prior trial or preliminary hearing testimony is admissible
only if the defendant had an adequate opportunity to cross-examine. See California v. Green, 399 U.S. 149,
165–68 (1970); Pointer v. Texas, 380 U.S., at 406–08. Even where the defendant had such an opportunity,
we excluded the testimony where the government had not established unavailability of the witness. We
similarly excluded accomplice confessions where the defendant had no opportunity to cross-examine. See
Bruton v. United States, 391 U.S. 123, 126–28 (1968). In contrast, we considered reliability factors beyond
prior opportunity for cross-examination when the hearsay statement at issue was not testimonial.
  Even our recent cases, in their outcomes, hew closely to the traditional line. Ohio v. Roberts, 448 U.S., at
67–70, admitted testimony from a preliminary hearing at which the defendant had examined the witness.
Lilly v. Virginia, supra, 527 U.S. 116, excluded testimonial statements that the defendant had had no
opportunity to test by cross-examination. And Bourjaily v. United States, 483 U.S. 171, 181–84 (1987),
admitted statements made unwittingly to an FBI informant after applying a more general test that did not
make prior cross-examination an indispensable requirement. . . .
  Our cases have thus remained faithful to the Framers‘ understanding: Testimonial statements of
witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.
                                                       V
  Although the results of our decisions have generally been faithful to the original meaning of the
Confrontation Clause, the same cannot be said of our rationales. Roberts conditions the admissibility of all
hearsay evidence on whether it falls under a ―firmly rooted hearsay exception‖ or bears ―particularized
guarantees of trustworthiness.‖ This test departs from the historical principles identified above in two
respects. First, it is too broad: It applies the same mode of analysis whether or not the hearsay consists of
ex parte testimony. This often results in close constitutional scrutiny in cases that are far removed from the
core concerns of the Clause. At the same time, however, the test is too narrow: It admits statements that do
consist of ex parte testimony upon a mere finding of reliability. This malleable standard often fails to protect
against paradigmatic confrontation violations.
   Members of this Court and academics have suggested that we revise our doctrine to reflect more
accurately the original understanding of the Clause. They offer two proposals: First, that we apply the
Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay
law—thus eliminating the overbreadth referred to above. Second, that we impose an absolute bar to
statements that are testimonial, absent a prior opportunity to cross-examine—thus eliminating the excessive
narrowness referred to above.
  In White, we considered the first proposal and rejected it. Although our analysis in this case casts doubt
on that holding, we need not definitively resolve whether it survives our decision today, because Sylvia
Crawford‘s statement is testimonial under any definition. This case does, however, squarely implicate the
second proposal.
                                                       A
   Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth
Amendment‘s protection to the vagaries of the rules of evidence, much less to amorphous notions of
―reliability.‖ Certainly none of the authorities discussed above acknowledges any general reliability exception
to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the
right of confrontation. To be sure, the Clause‘s ultimate goal is to ensure reliability of evidence, but it is a
procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause
thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be
little dissent), but about how reliability can best be determined. Cf. 3 BLACKSTONE, COMMENTARIES, at 373

Professor John Barkai, U.H. Law School - Evidence                                       Page - 224
(―This open examination of witnesses . . . is much more conducive to the clearing up of truth‖); M. HALE,
HISTORY AND ANALYSIS OF THE COMMON LAW OF ENGLAND 258 (1713) (adversarial testing ―beats and bolts out
the Truth much better‖).
   The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere
judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing
reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation
Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of
forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable
grounds; it does not purport to be an alternative means of determining reliability. . . .
 Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial
because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.
                                                        B
  The legacy of Roberts in other courts vindicates the Framers‘ wisdom in rejecting a general reliability
exception. The framework is so unpredictable that it fails to provide meaningful protection from even core
confrontation violations.
   Reliability is an amorphous, if not entirely subjective, concept. There are countless factors bearing on
whether a statement is reliable; the nine-factor balancing test applied by the Court of Appeals below is
representative. Whether a statement is deemed reliable depends heavily on which factors the judge
considers and how much weight he accords each of them. Some courts wind up attaching the same
significance to opposite facts. For example, the Colorado Supreme Court held a statement more reliable
because its inculpation of the defendant was ―detailed,‖ People v. Farrell, 34 P. 3d 401, 407 (Colo. 2001),
while the Fourth Circuit found a statement more reliable because the portion implicating another was
―fleeting,‖ United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 245 (2001). The Virginia Court
of Appeals found a statement more reliable because the witness was in custody and charged with a crime
(thus making the statement more obviously against her penal interest), see Nowlin v. Commonwealth, 40
Va. App. 327, 335–38 (2003), while the Wisconsin Court of Appeals found a statement more reliable
because the witness was not in custody and not a suspect, see State v. Bintz, 2002 WI App. 204, P13.
Finally, the Colorado Supreme Court in one case found a statement more reliable because it was given
―immediately after‖ the events at issue, Farrell, supra, at 407, while that same court, in another case, found
a statement more reliable because two years had elapsed, Stevens v. People, 29 P. 3d 305, 316 (2001).
      The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated
capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.
Despite the plurality‘s speculation in Lilly, 527 U.S., at 137, that it was ―highly unlikely‖ that accomplice
confessions implicating the accused could survive Roberts, courts continue routinely to admit them. One
recent study found that, after Lilly, appellate courts admitted accomplice statements to the authorities in 25
out of 70 cases—more than one-third of the time. Kirst, Appellate Court Answers to the Confrontation
Questions in Lilly v. Virginia, 53 SYRACUSE L. REV. 87, 105 (2003). . . .
                                                        C
  Roberts‘ failings were on full display in the proceedings below. Sylvia Crawford made her statement while
in police custody, herself a potential suspect in the case. Indeed, she had been told that whether she would
be released ―depended on how the investigation continues.‖ In response to often leading questions from
police detectives, she implicated her husband in Lee‘s stabbing and at least arguably undermined his
self-defense claim. Despite all this, the trial court admitted her statement, listing several reasons why it was
reliable. In its opinion reversing, the Court of Appeals listed several other reasons why the statement was
not reliable. Finally, the State Supreme Court relied exclusively on the interlocking character of the
statement and disregarded every other factor the lower courts had considered. The case is thus a
self-contained demonstration of Roberts‘ unpredictable and inconsistent application.
   Each of the courts also made assumptions that cross-examination might well have undermined. The trial
court, for example, stated that Sylvia Crawford‘s statement was reliable because she was an eyewitness
with direct knowledge of the events. But Sylvia at one point told the police that she had ―shut [her] eyes

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and . . . didn‘t really watch‖ part of the fight, and that she was ―in shock.‖ The trial court also buttressed its
reliability finding by claiming that Sylvia was ―being questioned by law enforcement, and, thus, the
[questioner] is . . . neutral to her and not someone who would be inclined to advance her interests and shade
her version of the truth unfavorably toward the defendant.‖ The Framers would be astounded to learn that
ex parte testimony could be admitted against a criminal defendant because it was elicited by ―neutral‖
government officers. But even if the court‘s assessment of the officer‘s motives was accurate, it says
nothing about Sylvia‘s perception of her situation. Only cross-examination could reveal that. . . .
  We readily concede that we could resolve this case by simply reweighing the ―reliability factors‖ under
Roberts and finding that Sylvia Crawford‘s statement falls short. But we view this as one of those rare cases
in which the result below is so improbable that it reveals a fundamental failure on our part to interpret the
Constitution in a way that secures its intended constraint on judicial discretion. Moreover, to reverse the
Washington Supreme Court‘s decision after conducting our own reliability analysis would perpetuate, not
avoid, what the Sixth Amendment condemns. The Constitution prescribes a procedure for determining the
reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with
one of our own devising. . . .
                                                        ***
   Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers‘ design to afford the
States flexibility in their development of hearsay law—as does Roberts, and as would an approach that
exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at
issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive
definition of ―testimonial.‖ Whatever else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the
modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
  In this case, the State admitted Sylvia‘s testimonial statement against petitioner, despite the fact that he
had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth
Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where
testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands
is the one the Constitution actually prescribes: confrontation.
  The judgment of the Washington Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
  It is so ordered.


  CHIEF JUSTICE REHNQUIST, with whom JUSTICE O‘CONNOR joins, concurring in the judgment. I dissent from
the Court‘s decision to overrule Ohio v. Roberts, 448 U.S. 56 (1980). I believe that the Court‘s adoption of
a new interpretation of the Confrontation Clause is not backed by sufficiently persuasive reasoning to
overrule long-established precedent. Its decision casts a mantle of uncertainty over future criminal trials in
both federal and state courts, and is by no means necessary to decide the present case.
  The Court‘s distinction between testimonial and nontestimonial statements, contrary to its claim, is no
better rooted in history than our current doctrine. . . . [W]hile I agree that the Framers were mainly concerned
about sworn affidavits and depositions, it does not follow that they were similarly concerned about the
Court‘s broader category of testimonial statements. See 1 N. W EBSTER, AN AMERICAN DICTIONARY OF THE
ENGLISH LANGUAGE (1828) (defining ―Testimony‖ as ―[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact. Such affirmation in judicial proceedings, may be verbal or
written, but must be under oath‖ (emphasis added)). As far as I can tell, unsworn testimonial statements
were treated no differently at common law than were nontestimonial statements, and it seems to me any
classification of statements as testimonial beyond that of sworn affidavits and depositions will be somewhat
arbitrary . . . .
  I therefore see no reason why the distinction the Court draws is preferable to our precedent. Starting with

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Chief Justice Marshall‘s interpretation as a Circuit Justice in 1807, 16 years after the ratification of the Sixth
Amendment, United States v. Burr, 25 F. Cas. 187, 193, F. Cas. No. 14694 (No. 14,694) (CC Va. 1807),
continuing with our cases in the late 19th century, Mattox v. United States, 156 U.S. 237, 243–44 (1895), and
through today, e.g., White v. Illinois, 502 U.S. 346, 352–53 (1992), we have never drawn a distinction
between testimonial and nontestimonial statements. And for that matter, neither has any other court of which
I am aware. I see little value in trading our precedent for an imprecise approximation at this late date.
  I am also not convinced that the Confrontation Clause categorically requires the exclusion of testimonial
statements. Although many States had their own Confrontation Clauses, they were of recent vintage and
were not interpreted with any regularity before 1791. . . .
  Nor was the English law at the time of the framing entirely consistent in its treatment of testimonial
evidence. Generally ex parte affidavits and depositions were excluded as the Court notes, but even that
proposition was not universal. See King v. Westbeer, 1 Leach 12, 13, 168 Eng. Rep. 108, 109 (1739) (noting
the admission of an ex parte affidavit); see also 1 M. HALE, PLEAS OF THE CROWN 585–86 (1736) (noting that
statements of ―accusers and witnesses‖ which were taken under oath could be admitted into evidence if the
declarant was ―dead or not able to travel‖). . . . With respect to unsworn testimonial statements, there is no
indication that once the hearsay rule was developed courts ever excluded these statements if they otherwise
fell within a firmly rooted exception. Dying declarations are one example.
  Between 1700 and 1800 the rules regarding the admissibility of out-of-court statements were still being
developed. There were always exceptions to the general rule of exclusion, and it is not clear to me that the
Framers categorically wanted to eliminate further ones. It is one thing to trace the right of confrontation back
to the Roman Empire; it is quite another to conclude that such a right absolutely excludes a large category
of evidence. It is an odd conclusion indeed to think that the Framers created a cut-and-dried rule with
respect to the admissibility of testimonial statements when the law during their own time was not fully settled.
  To find exceptions to exclusion under the Clause is not to denigrate it as the Court suggests. Chief Justice
Marshall stated of the Confrontation Clause: ―I know of no principle in the preservation of which all are more
concerned. I know none, by undermining which, life, liberty and property, might be more endangered. It is
therefore incumbent on courts to be watchful of every inroad on a principle so truly important.‖ Burr, 25 F.
Cas., at 193. Yet, he recognized that such a right was not absolute, acknowledging that exceptions to the
exclusionary component of the hearsay rule, which he considered as an ―inroad‖ on the right to confrontation,
had been introduced.
  Exceptions to confrontation have always been derived from the experience that some out-of-court
statements are just as reliable as cross-examined in-court testimony due to the circumstances under which
they were made. We have recognized, for example, that co-conspirator statements simply ―cannot be
replicated, even if the declarant testifies to the same matters in court.‖ United States v. Inadi, 475 U.S. 387,
395 (1986). Because the statements are made while the declarant and the accused are partners in an illegal
enterprise, the statements are unlikely to be false and their admission ―actually furthers the ‗Confrontation
Clause‘s very mission‘ which is to ‗advance the accuracy of the truth-determining process in criminal trials.‘‖
Similar reasons justify the introduction of spontaneous declarations, see White, 502 U.S., at 356,
statements made in the course of procuring medical services, see ibid., dying declarations, and countless
other hearsay exceptions. That a statement might be testimonial does nothing to undermine the wisdom of
one of these exceptions.
  Indeed, cross-examination is a tool used to flesh out the truth, not an empty procedure. ―In a given
instance [cross-examination may] be superfluous; it may be sufficiently clear, in that instance, that the
statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of
cross-examination would be a work of supererogation.‖ 5 W IGMORE § 1420, at 251. In such a case, as we
noted over 100 years ago, ―The law in its wisdom declares that the rights of the public shall not be wholly
sacrificed in order that an incidental benefit may be preserved to the accused.‖ Mattox, 156 U.S., at 243. By
creating an immutable category of excluded evidence, the Court adds little to a trial‘s truth-finding function
and ignores this longstanding guidance.
 In choosing the path it does, the Court of course overrules Ohio v. Roberts, 448 U.S. 56 (1980), a case
decided nearly a quarter of a century ago. . . . Though there are no vested interests involved, unresolved

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questions for the future of everyday criminal trials throughout the country surely counsel . . . caution. The
Court grandly declares that ―we leave for another day any effort to spell out a comprehensive definition of
‗testimonial.‘‖ But the thousands of federal prosecutors and the tens of thousands of state prosecutors need
answers as to what beyond the specific kinds of ―testimony‖ the Court lists, is covered by the new rule. They
need them now, not months or years from now. Rules of criminal evidence are applied every day in courts
throughout the country, and parties should not be left in the dark in this manner.
  To its credit, the Court‘s analysis of ―testimony‖ excludes at least some hearsay exceptions, such as
business records and official records. To hold otherwise would require numerous additional witnesses
without any apparent gain in the truth-seeking process. Likewise to the Court‘s credit is its implicit
recognition that the mistaken application of its new rule by courts which guess wrong as to the scope of the
rule is subject to harmless-error analysis. See ante, at 11, n. 1.
  But these are palliatives to what I believe is a mistaken change of course. It is a change of course not in
the least necessary to reverse the judgment of the Supreme Court of Washington in this case. The result the
Court reaches follows inexorably from Roberts and its progeny without any need for overruling that line of
cases. In Idaho v. Wright, 497 U.S. 805, 820–24 (1990), we held that an out-of-court statement was not
admissible simply because the truthfulness of that statement was corroborated by other evidence at trial. As
the Court notes, the Supreme Court of Washington gave decisive weight to the ―interlocking nature of the
two statements.‖ No re-weighing of the ―reliability factors,‖ which is hypothesized by the Court, is required to
reverse the judgment here. A citation to Idaho v. Wright, supra, 497 U.S. 805, would suffice. For the reasons
stated, I believe that this would be a far preferable course for the Court to take here.




Read the information about
DAVIS V. WASHINGTON, HAMMON V. INDIANA, 547 U.S. 813(2006)

In Emanuel‘s.




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Professor John Barkai, U.H. Law School - Evidence   Page - 229
                                                                                HRE 901, CONFRONTATION

State v. Konohia, 106 Hawai'i 517, 107 P.3d 1190 (2005)
Background: Defendant was convicted of attempted manslaughter, criminal property damage and unauthorized
entry into a motor vehicle. Defendant appealed.


Holdings: The Intermediate Court of Appeals, Nakamura, J., held that: (1) recording of a 911 call made by victim
was admissible evidence, and (2) admission of the recording did not violate defendant's confrontation rights.
Affirmed.


[JB: NOTE - The authentication claim [HRE 901] was discussed in the section of the materials on R 901]


f. Konohia is not entitled to any relief based on his confrontation claim.


Konohia claims that the admission of the recording of Coral-Sands' 911 call violated his confrontation rights because
the recording included hearsay statements made by declarants whom the State failed to establish were unavailable
and because the hearsay statements did not bear adequate indicia of reliability. Konohia did not object on these
grounds at trial and therefore his claim is reviewed under the plain error standard.


There is no confrontation issue with respect to Coral-Sands' statements on the recording. Coral-Sands testified at
trial and was subject to cross-examination. United States v. Owens, 484 U.S. 554, 558-60, 108 S.Ct. 838, 98
L.Ed.2d 951 (1988) (holding that the Confrontation Clause under United States Constitution is satisfied if the
declarant is available for cross-examination). Moreover, to the extent Coral-Sands' statements were offered for
their truth, they were excited utterances, a firmly rooted hearsay exception bearing adequate indicia of reliability. In
the Interest of John Doe, born on November 23, 1970, 70 Haw. 32, 38, 761 P.2d 299, 303 (1988).


Konohia's main contention is that the recording contains several hearsay statements made by unidentified
background voices during the alleged assault. With one exception, Konohia does not specify the statements to
which he is referring, explain why he alleges the statements were offered to prove their truth, nor explain why, if
offered for their truth, the admission of the statements resulted in prejudice. The only statement Konohia identifies
is someone saying, ―He's hurt, he's hurt‖ after the van flipped over. The DPA, however, did not use this statement
for its truth, but argued that it provided evidence of the defendants' state of mind. See footnote 9, supra. The
statement was therefore not hearsay and, accordingly, did not implicate Konohia's confrontation rights. Tennessee
v. Street, 471 U.S. 409, 413-14, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985) (holding that the use of evidence for a
nonhearsay purpose did not raise Confrontation Clause concerns). In any event, there was no dispute that
Coral-Sands had been injured.


Konohia's failure to specify the additional statements he contends were used for their truth precludes us from
analyzing those statements. Our review of the record does not support Konohia's contention that audible
statements made during the alleged assault were offered or used for their truth. These statements were probative
because of the angry, violent, and threatening tone of the voices involved in attacking Coral-Sands and encouraging
the attack. The statements were not used for the truth of what was said, but to show the defendants' intent and to

Professor John Barkai, U.H. Law School - Evidence                                      Page - 230
negate Konohia's claim of accident or self-defense. Because the statements were not offered for a hearsay
purpose, the admission of the statements did not violate Konohia's confrontation rights. Street, 471 U.S. at 413-14,
                                                                                                            FN11
105 S.Ct. 2078. Konohia has not met his burden of showing plain error regarding his confrontation rights.




FN11. We note that even if any statements on the recording made by Konohia, Randall, or Boniface were offered for
their truth, this would not have violated Konohia's confrontation rights. The use of Konohia's statements would not
violate his confrontation rights because Konohia has no right to confront himself. State v. Patino, 177 Wis.2d 348,
502 N.W.2d 601, 611 (1993). Randall and Boniface exercised their right not to testify at trial and thus were
unavailable. Any hearsay statements made by Konohia, Randall, or Boniface were admissible as admissions under
HRE Rule 803(a)(1)(A) or as co-conspirator statements under HRE Rule 803(a)(2)(C). These are both firmly rooted
hearsay exceptions which bear adequate indicia of reliability for confrontation purposes. State v. McGriff, 76 Hawai‗i
148, 156, 871 P.2d 782, 790 (1994) (co-conspirator statements); Patino, 502 N.W.2d at 611 (admission of
party-opponent).
...
We affirm the Judgment of the Circuit Court of the Second Circuit.




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State v. Grace, 107 Hawai'i 133, 111 P.3d 28 (2005)
Ernest L. Grace, Sr. (Grace) appeals the June 13, 2003 judgment of the Family Court of the Third Circuit that
convicted him of abuse of a family or household member, a violation of Hawaii Revised Statutes (HRS) § 709-906(1)
(Supp.2004). Because the family court admitted hearsay against Grace that violated bedrock Sixth Amendment
confrontation clause rights-as those rights were recently radically reinterpreted by the United States Supreme Court
in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)-and because the error was not
harmless beyond a reasonable doubt despite substantial evidence in support of the conviction, we vacate and
remand.

                                                    I. Background.

At Grace's bench trial, his wife, Samara Grace (Samara), testified first for the State. Samara remembered that on
July 31, 2002, at around eight in the morning, she took her daughter to play in the park near their Hilo apartment.
Samara had other children with her... Samara took her cell phone with her to the park. She also took Grace's cell
phone. Grace stayed in the apartment.

Early that evening, Samara was using Grace's cell phone when he appeared in the park and demanded, ― Gimme
da phone.‖ Samara could tell he had been drinking. ― I could smell the liquor on him.‖ In Samara's estimation, ― He
was already feeling good drunk[.]‖ Samara did not relinquish the phone because she was using it to converse with
her grandmother in Honolulu. Then, ― He just grabbed the phone. And when-when he grabbed it he scratched me,
like grabbing the phone and scratched me.... Like, it didn't have the marking. It just showed red, but it went away.‖
Angry with Grace because he had wrested the phone from her, Samara used her own cell phone to call the police.
They arrived about ten minutes later and arrested Grace. The deputy prosecuting attorney (DPA) asked, ― Is it your
testimony that nothing else happened besides the defendant taking the phone away from you?‖ Samara answered,
― Yeah.‖

At this point, the DPA produced a statement form that Samara had filled out and signed shortly after the cell phone
incident. It stated that Grace had hit her during the incident. Samara explained: ― No. He never hit-he never punched
me, but he grabbed the phone, and I was on my meds when he did that.‖ Samara maintained that she was upset
with Grace and wanted to get back at him when she filled out the form, and that what she wrote was not true. Samara
acknowledged she was still married to Grace. ― Right now we're doing fine.‖ Samara also admitted to the DPA that
she did not want to see her husband get into trouble. She did not want to testify, but did only because she had been
subpoenaed.
...Officer Artienda arrested Grace and took him to the police station. There, Officer Artienda advised Grace of his
rights and took a statement from him. Grace denied hitting Samara, and told Officer Artienda that ― if he did hit her
I would be able to see it or the injuries.‖ Officer Artienda confirmed that Grace was calm and ― real cooperative.‖
Officer Artienda did not notice whether Grace had been drinking.

Hawai‗ i County Police Officer Stacy Leialoha (Officer Leialoha) arrived about five minutes after hearing the dispatch
to the scene, and was told by Officer Artienda to assist in investigating the case. She interviewed ― two young girls,
uh, who are, um, witnesses to the incident.‖ Officer Leialoha did not identify one of the girls and did not fully identify
the other. When the DPA asked Officer Leialoha what she had learned from the interviews, defense counsel made
a hearsay objection. The family court asked whether the DPA could cite any hearsay exception. The DPA cited
― present-sense impression.‖ Opining that the proffered exception usually applies only to an overheard remark,
― made while the declarant was perceiving the event or condition or immediately thereafter [,]‖ Hawaii Rules of
Evidence (HRE) Rule 803(b)(1) (1993), the family court suggested instead that the interviews might come in as
― excited utterances,‖ or statements ― relating to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.‖ HRE Rule 803(b)(2) (1993). The family court allowed the

Professor John Barkai, U.H. Law School - Evidence                                        Page - 232
DPA to further question Officer Leialoha, ― to determine whether or not they were, uh, under the stress of the
excitement at the time[.]‖

Under further questioning by the DPA, Officer Leialoha recalled that the two girls were ages ten and eleven, but she
could not remember which was which. When asked about the girls' ― emotional state,‖ Officer Leialoha replied, ― Um,
they seemed somewhat excited because, um, police were there, in my opinion, and, um, they seen what happened
so they were anxious to tell what they saw.‖ Officer Leialoha observed that the girls were ― nervous looking.‖ The
girls' hands were fidgeting and they were quick to get their stories out, ― as if they were nervous.‖ The girls were not
crying. When the DPA asked whether the girls were upset, Officer Leialoha answered, ― Um, not really.‖ On voir dire,
Officer Leialoha confirmed that the girls did not come running to her when she arrived on the scene. The family court
ultimately decided that the girls' statements were indeed ― excited utterances.‖

On that basis, Officer Leialoha testified that the girls told her they had witnessed the cell phone incident and had
seen Grace hit Samara ― on her body.‖ One of the girls-whom Officer Leialoha identified only as ― Leopoldino‖ -told
Officer Leialoha that ― she saw Mr. Grace hit Mrs. Grace two times on the shoulder and, uh, scratched her left arm.‖
 On cross-examination, Officer Leialoha remembered that the girls told her they were with Samara ― under the big
tree in the grass near, um, near the river‖ when the incident happened. The girls said they were talking to each other
at the time.

After the State rested, defense counsel moved for a judgment of acquittal. Besides arguing insufficiency of the
evidence in a couple of respects, defense counsel averred that the admission of the girls' statements violated
Grace's confrontation clause rights. The family court denied the motion.

The family court decided as follows:

        In reaching this conclusion the Court, uh, is aware of the testimony of the victim [Samara] Grace.

        Um, Miss Grace indicated that she was under the influence of medication the day of the assault, and,
        therefore, her memory of the events was not accurate, uh, when she spoke to the police and, uh, and that
        her memory of the events at the time of the trial [was] more accurate. And she related at that time that
        defendant did not strike her but merely grabbed at her phone and in the process, uh, scratched her.

        Uh, Court finds ... the victim's recantation, uh, to be not credible. Uh, obviously if she was under the
        influence of medication which affected her memory at the time of the alleged offense, uh, that memory
        would not improve after the fact.
...
we need not reach all of the issues Grace raises thereunder, because we conclude the admission of the statements
of the two girls violated his rights under the confrontation clause of the Sixth Amendment to the United States
Constitution, as those rights now stand transfigured by the United States Supreme Court in Crawford, supra.
...
Grace had no prior opportunity to cross-examine the girls about their out-of-court statements. And the State
concedes, and upon a review of the record we confirm, that the State made no effort whatsoever below to procure
the girls' presence at Grace's trial. Crawford, 124 S.Ct. at 1374. The nicer question is whether the girls' statements
at all lie within the new and apparently exclusive purview of the Sixth Amendment's confrontation clause brought into
focus by Crawford; in other words, whether their hearsay statements were ― testimonial.‖ Id.
...
At any rate, based upon all of the surrounding circumstances, detailed in the background above, we decide that the
girls' statements were ― testimonial‖ under Crawford, as they were ― ‗ statements that were made under
circumstances which would lead an objective witness reasonably to believe that the statement would be available for
use at a later trial,‘
Professor John Barkai, U.H. Law School - Evidence                                      Page - 233
...
Accordingly, we hold that the admission of the girls' statements violated Grace's right to confrontation under the
Sixth Amendment to the United States Constitution. Crawford, 124 S.Ct. at 1374. This error was not harmless
beyond a reasonable doubt, Chapman, 386 U.S. at 24, 87 S.Ct. 824, because the family court expressly relied upon
the girls' statements to corroborate and bolster the reliability of Samara's statements to the police, upon which the
family court ultimately based its decision to convict. Thus, ― there is a reasonable possibility that the evidence
complained of might have contributed to the conviction[,]‖ Chapman, 386 U.S. at 23, 87 S.Ct. 824 (citation and
internal quotation marks omitted), and we must either reverse or vacate and remand. Which brings us to Grace's
second point of error.
...
Accordingly, we vacate the family court's June 13, 2003 judgment and remand for a new trial.




Professor John Barkai, U.H. Law School - Evidence                                    Page - 234
State v. Marshall,              114 Hawai'i 396, 163 P.3d 199       (Hawai‗ i App. 2007)
Thomas W. Marshall (Marshall) [was] convicted ... of one count of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), pursuant to Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and (a)(3) (Supp.2005).


... Officer Kaaa (the Operator) testified that she administered a breath-alcohol test to Marshall on August 6, 2005.
She described her training and the procedures employed in operating the Intoxilyzer Model 5000 (Intoxilyzer) used
to administer the test to Marshall. The Operator testified that on August 6, 2005, she completed and signed the
Sworn Statement of Intoxilyzer 5000 Operator, which set forth the result of Marshall's test; however, she did not
testify as to the result of that test. Based on her training and experience in operating the Intoxilyzer, the Intoxilyzer
appeared to be operating properly and accurately on August 6, 2005.


Following the Operator's testimony, the State sought to admit two sworn statements of HPD Intoxilyzer Supervisor
Dawson (Supervisor) that the Intoxilyzer used to test Marshall had been properly calibrated and tested for accuracy
on October 4 and October 24, 2005. The State offered the statements pursuant to Hawaii Rules of Evidence (HRE)
Rule 803(b)(8), the public records exception to the hearsay rule. Marshall objected, based on the Confrontation
Clause of the United States Constitution. The district court admitted the Supervisor's sworn statements into
evidence as State's Exhibit 4 (Exhibit 4). The district court also admitted as State's Exhibit 3 the Operator's sworn
statement (Exhibit 3), but stated that it would consider only Marshall's Intoxilyzer test results and not the statement
itself. The district court noted that ― there is a reading of .100 grams of alcohol per 210 liters of breath and the test
was properly administered....
                                                             III.


                                     A. Statements of the Intoxilyzer Supervisor


Marshall contends the district court erred by admitting the sworn statements made by the Intoxilyzer Supervisor
(Exhibit 4) into evidence without calling the Supervisor to testify at trial or showing that she was unavailable. Marshall
argues that this amounted to a violation of his rights under the Confrontation Clause of the Sixth Amendment to the
United States Constitution and under the Hawai‗ i Constitution. The State responds that the statements made by the
Supervisor were properly admitted pursuant to HRE Rule 803(b)(8) as public records and the statements admitted
into evidence do not violate Marshall's rights to confront adverse witnesses.


Marshall argues that the Supervisor's statements should not have been admitted because the statements denied
him the opportunity to confront and question an adverse witness, and he cites Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in support of his argument....


In admitting Exhibit 4, the district court recognized that the threshold question was whether or not Exhibit 4 was
― testimonial‖ in nature. The district court stated that ― [t]estimonial is a term of art that every court in this country is
struggling with now thanks to Crawford.‖


State v. Grace, 107 Hawai‗ i 133, 111 P.3d 28 (App.2005), addressed the changes brought about by Crawford.
Relying on Grace, Marshall argues that ― if the sworn statements of the intoxilyzer supervisor are ‗ testimonial,‘ it

Professor John Barkai, U.H. Law School - Evidence                                          Page - 235
was reversible error to admit them into the evidentiary record.‖


Grace appealed his conviction for abuse of a family or household member. Grace, 107 Hawai‗ i at 134, 111 P.3d at
29. Although Grace's wife initially told the police that Grace had hit her, she claimed at trial he had not done so. Id.
at 135, 111 P.3d at 30. Over Grace's objection, the trial court permitted a police officer to testify that two girls told the
officer they witnessed Grace hitting his wife. Id. at 136, 111 P.3d at 31. Grace appealed, arguing that the trial court
had erred in admitting the girls' statements because the statements were testimonial in nature and the girls were
neither unavailable nor subjected to cross-examination. Id. at 142, 111 P.3d at 37. On appeal, this court decided
― the girls' statements were ‗ testimonial‘ under Crawford, as they were ‗ statements that were made under
circumstances which would lead an objective witness reasonably to believe that the statement would be available for
use at a later trial.‘ ‖ Id. at 143, 111 P.3d at 38 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. at 1364).


Here, the circumstances in which the Supervisor's statements were made are starkly different from the
circumstances in which the girls made their statements to the police officer in Grace. The girls' out-of-court
statements admitted in Grace were made to a law enforcement officer investigating a crime and specifically directed
to Grace. In Davis v. Washington, --- U.S. ----, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the United States Supreme
Court stated:


When we said in Crawford, [541 U.S. at 53,] 124 S.Ct. [at 1365], that ― interrogations by law enforcement officers fall
squarely within [the] class‖ of testimonial hearsay, we had immediately in mind (for that was the case before us)
interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to
convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or
embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial.
Id. at ----, 126 S.Ct. at 2276.


In contrast, the Supervisor's sworn statements were not specific as to Marshall. The Supervisor's statements were
― not designed primarily to ‗ establish or prove‘ some past fact,‖ Id. at ----, 126 S.Ct. at 2276 (brackets omitted;
emphasis added), but ― to ensure that appropriate and uniform forensic alcohol testing is performed throughout the
State of Hawai‗ i so that legal criteria are met and reliable and accurate results are assured.‖ Hawai‗ i Administrative
Rules (HAR) § 11-114-1(a). Rather than being a ― testimonial‖ statement, Exhibit 4 was merely ― a record of routine,
nonadversarial matters made in a nonadversarial setting.‖ State v. Ofa, 9 Haw.App. 130, 136, 828 P.2d 813, 817
(1992).


In the instant case, the district court stated: ― I would agree with [defense counsel that admission of Exhibit 4 would
violate the Confrontation Clause] if indeed I believe[d] [it] was testimonial or were testimonial except that Crawford
by its own terms indicates that evidence, lots of evidence isn't including business records, and this is nothing other
                                                            FN6
than the public twin of the business record exception.‖         (Footnotes not in original quote.)


While Hawai‗ i appellate courts have not ruled on the admissibility of sworn statements made by Intoxilyzer
supervisors since the Supreme Court's decision in Crawford, the majority of state courts considering the issue have
decided that Crawford does not bar the use of documentary evidence to establish the foundation for breath test
results: [ eight states have ruled that admission of documentary evidence to establish foundation for admissibility of
breath test results does not implicate core concerns of Confrontation Clause as interpreted by Crawford ] but see

Professor John Barkai, U.H. Law School - Evidence                                          Page - 236
Shiver v. State, 900 So.2d 615 (Fla.Dist.Ct.App.2005). While not controlling, the cases do amount to persuasive
legal authority that the Supervisor's statements were not ― testimonial‖ hearsay.


As the Supervisor's sworn statements cannot be considered ― testimonial‖ hearsay, the statements were not subject
to the requirements of the Confrontation Clause of the Sixth Amendment. Davis, --- U.S. at ----, 126 S.Ct. at 2276.
Therefore, no showing of the Supervisor's unavailability nor a prior opportunity for cross-examination was required
prior to admission of Exhibit 4.
...
                                                        IV.


The Judgment ... is affirmed.


        FN5. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States
        Supreme Court stated that ― [m]ost of the hearsay exceptions covered statements that by their nature were
        not testimonial-for example, business records or statements in furtherance of a conspiracy.‖ Id. at 56, 124
        S.Ct. at 1367.


        FN6. See State v. Ing, 53 Haw. 466, 468, 497 P.2d 575, 577 (1972) (police department speed-test card
        admissible as a business record under HRS § 622-5).




Professor John Barkai, U.H. Law School - Evidence                                   Page - 237
State v. Marshall, 117 Hawai'i 234, 177 P.3d 1278 (2007)
(Under Rule 35(c) of the Hawai'i Rules of Appellate Procedure, a memorandum opinion or unpublished
dispositional order shall not be cited in any other action or proceeding except when the opinion or unpublished
dispositional order establishes the law of the pending case, res judicata or collateral estoppel, or in a criminal action
or proceeding involving the same respondent.)
                                               Supreme Court of Hawai‗i.
Certiorari to the Intermediate Court of Appeals (HPD Traffic No. 005320490).

NAKAYAMA, J., for the court FN1 and ACOBA, J., dissenting.

        Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.

                    ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI

Petitioner-Defendant-Appellant's application for writ of certiorari filed on October 29, 2007, is hereby
rejected.

Dissent by ACOBA, J.
I would grant certiorari in this case on several grounds.

First, I believe it was reversible error to admit evidence exhibit number 4 offered by
Respondent/Plaintiff-Appellee State of Hawai‗i (Respondent), ―the sworn statement of Sylvia Dawson,
the [intoxilyzer] supervisor, noting that ... the machine used in the case at hand[ ] had been calibrated and
tested for accuracy on October 4th of 2005[ ] and October 24th of 2005[,] ... pursuant to the public
records exception to [Hawai‗i Rules of Evidence (HRE) Rule] 803(b)(8)[.]‖ Although not raised,
apparently the intoxilyzer test was administered to Petitioner/Defendant-Appellant Thomas W. Marshall
(Petitioner) on August 6, 2005, before the calibration dates of October 4 and 24, 2005. As stated before,
―a fundamental evidentiary rule is that before the result of a test made out of court may be introduced into
evidence, a foundation must be laid showing that the test result can be relied on as a substantive
fact.‖State v. Wallace, 80 Hawai‗i 382, 407, 910 P.2d 695, 720 (1996) (internal quotation marks, citation,
and brackets omitted).

Furthermore, ―[p]art of the foundational prerequisite for the reliability of a test result is a showing that the
measuring instrument is in proper working order.‖Id. (internal quotation marks and citation omitted). As
in Wallace, the testing apparatus ― ‗was calibrated on a certain date‘ ― and the calibrations could have
been admitted ― ‗under the hearsay exceptions relating to business records[.]‘ ― State v. Manewa, 115
Hawai‗i 343, 356, 167 P.3d 336, 349 (2007) (quoting Wallace, 80 Hawai‗i at 412 n. 28, 910 P.2d at 725
n. 28) (brackets omitted). But here, as in Wallace, ―[Respondent] did not offer such records into
evidence.‖ Id.

Second, admission of the written statement plainly violated Petitioner's right of confrontation under the
Hawai‗i Constitution. Even were a hearsay exception applicable, this court has held that

  the admission of hearsay is limited by the unavailability requirement:

Professor John Barkai, U.H. Law School - Evidence                                       Page - 238
   [T]he confrontation clause restricts the range of admissible hearsay in two ways. First, the
   prosecution must either produce, or demonstrate the unavailability of, a declarant whose statement
   it wishes to use against a defendant.Second, upon a showing that the witness is unavailable, only
   statements that bear adequate indicia of reliability are admissible.

State v. Fields, 115 Hawai‗i 503, 550, 168 P.3d 955, 1002 (2007) (Acoba, J., dissenting) (quoting State
v. Sua, 92 Hawai‗i 61, 71, 987 P.2d 959, 969 (1999)) (quoting State v. Ortiz, 74 Haw. 343, 361, 845 P.2d
547, 555-56 (1993)) (citing Ohio v. Roberts, 448 U.S. 56, 65 (1980)) (other citations omitted) (emphasis
in original). Petitioner argues that
  [Respondent] did not call the purported declarant of the sworn statements to testify at trial. There was
  also no showing that the intoxilyzer supervisor was ―unavailable‖ to be called as a witness. Instead,
  [Respondent] offered the sworn statements into evidence pursuant to the ―public records exception to
  [HRE Rule] 803(b)(8).‖

 It is not enough that there may be indicia of reliability with respect to the hearsay involved. Sua declared
that, ―[a]s regards the first part of the Roberts test, we have ‗remained resolute that, under the
confrontation clause of the Hawai‗i Constitution, a showing of the declarant's unavailability is necessary
to promote the integrity of the fact finding process and to ensure fairness to defendants.‘ ― Sua, 92
Hawai‗i at 71, 987 P.2d at 969 (quoting State v. Lee, 83 Hawai‗i 267, 276, 925 P.2d 1091, 1100 (1996)
(other citations and brackets omitted).

Thus, while HRE Rule 803 states that the exceptions set forth therein ―are not excluded by the hearsay
rule, even though the declarant is available as a witness[,]‖―[t]he Hawai‗i Constitution requires [a]
declarant['s] unavailability for most rule 803 hearsay admitted against [the] accused.... As a condition of
admissibility, the prosecution must attempt to produce the declarant as a witness for face-to-face
confrontation and cross-examination.‖ Addison M. Bowman, Hawai‗i Rules of Evidence Manual §
803-1[2][A] at 8-21 (3d ed.2006).

Third, even were the written statement considered ―nontestimonial‖ evidence, under Fields this court
must require adherence to the unavailability requirement in Sua.See Fields, 115 Hawai‗i at 512-16, 168
P.3d at 964-68. That Respondent failed to establish the unavailability of the declarant is not contested.
In that regard, the 1992 case of State v. Ofa, 9 Haw.App. 130, 828 P.2d 813 (1992), is inconsistent with
both Wallace (Ofa holding a log of intoxilyzer calibrations admissible under ―public records and reports
exception to the hearsay rule set forth in [HRE] Rule 803(b)(8)(B)‖), id. at 135,828 P.2d at 816, and with
Sua(Ofa adopting view that ―unavailability analysis is a necessary part of the Confrontation Clause
inquiry only when the challenged out-of-court statements were made in the course of a prior judicial
proceeding‖), id. at 138, 828 P.2d at 818.

Based on the foregoing I believe this case merits further review.




Professor John Barkai, U.H. Law School - Evidence                              Page - 239
STATE V. DELOS SANTOS, --- P.3d ----, (2010) WL 3261193 (Hawai'i)

Background: Defendant was convicted of abuse of family or household members, following jury trial in
the Circuit Court. Defendant appealed. The Intermediate Court of Appeals, 220 P.3d 1052, reversed. State
appealed. Vacated and remanded.

Holdings: The Supreme Court, Nakayama, J., held that:
(1) detailed statement of alleged victim was not admissible as excited utterance;
(2) alleged victim's statement, that defendant “beat me up,” was admissible as excited utterance; and
(3) admission of detailed statement did not violate defendant's rights under Confrontation Clause of State
constitution.

Acoba, J., concurred in result and filed opinion.

[W}e hold that the ICA gravely erred by determining that the complainant's statement that “my boyfriend
beat me up” was not admissible as an excited utterance. We also hold that the admission of this statement
does not violate the confrontation clause of article I, section 14 of the Hawai„i Constitution. Therefore, we
vacate the ICA's judgment on appeal and remand to the family court for a new trial.

C. The Admission Of the Complainant's Statements Did Not Violate the Confrontation Clause Of
the Hawai‘i Constitution.

The ICA did not reach Delos Santos' argument that the admission of Officer Kubo's testimony violated his
right to confront the Complainant.. Because we conclude that the Complainant's first statement was
admissible as an excited utterance, we address this argument.

Delos Santos asserts that admission of the statement violated his right to confrontation under article I,
sections 5 and 14 of the Hawai„i Constitution because Hawai„i's confrontation clause requires a
“meaningful opportunity” to cross-examine the declarant about the subject matter of a hearsay statement.
(Citing State v. Fields, 115 Hawai„i 503, 528, 168 P.3d 955, 980 (2007.)) Delos Santos argues that: 1) the
Complainant's statements were testimonial; 2) the Complainant was unavailable at trial; and 3) he did not
have a “meaningful opportunity” to cross-examine the Complainant at trial due to her claimed memory
loss. In response, the prosecution asserts that the admission of the Complainant's hearsay statements did
not violate the confrontation clause because Delos Santos had a sufficient opportunity to cross-examine
the Complainant at trial. (Citing Fields, 115 Hawai„i at 523-24, 168 P.3d at 975-76.) As discussed below,
we hold that the admission of the Complainant's hearsay statements did not violate the confrontation
clause because the Complainant appeared for cross-examination at trial. Therefore, we do not decide
whether the Complainant's statements were testimonial, and the application of the two-part tests in
Crawford or Roberts is unnecessary. See Fields, 115 Hawai„i at 528, 168 P.3d at 980.

Article I, section 14 of the Hawai„i Constitution provides the accused with the right “to be confronted with
the witnesses against the accused....” Haw. Const. art. I, § 14. In State v. Fields, this court adopted the

Professor John Barkai, U.H. Law School - Evidence                              Page - 240
following standard for assessing whether testimonial hearsay violates the confrontation clause: “where a
hearsay declarant's unavailability has been shown, the testimonial statement is admissible for the truth of
the matter asserted only if the defendant was afforded a prior opportunity to cross-examine the absent
declarant about the statement.” Fields, 115 Hawai„i at 516, 168 P.3d at 968 (citing Crawford v.
Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). Importantly, this court also held
that “Hawai„i's confrontation clause, like its federal counterpart, is not implicated where ... the hearsay
declarant attends trial and is cross-examined about his or her prior out-of-court statement.” Id. at 517, 168
P.3d 955, 168 P.3d at 969. …

Relying on numerous cases from other jurisdictions, this court held that “Crawford does not preclude the
admission of a prior out-of-court statement where the hearsay declarant is cross-examined at trial about
the out-of-court statement.” Id. at 523, 168 P.3d at 975 (footnote omitted). Under Fields, the relevant
inquiry is whether the Complainant “appear[ed] at trial and [was] cross-examined about [her] statement.”
See Fields, 115 Hawai„i at 517, 168 P.3d at 969.FN13

Neither this court nor the United States Supreme Court has specifically determined whether a witness who
is cross-examined by the defendant but testifies that she cannot remember the subject matter of her
out-of-court statements or making her prior statements “appears for cross-examination at trial” under
Crawford and Fields. See Crawford, 541 U.S. at 60 n. 9; Fields, 115 Hawai„i at 517, 168 P.3d at 969.
Delos Santos asserts that Fields “extended Crawford's holding” by requiring “substantive and
meaningful” cross-examination. He asserts that he did not have a “meaningful” opportunity to
cross-examine the Complainant because, unlike the declarant in Fields, the Complainant could not
remember anything about the incident. See Fields, 115 Hawai„i at 523-24, 168 P.3d at 975-76. He points
to footnote 13 of our opinion in Fields, where we observed that “the dispositive question becomes whether
the witness can nevertheless recall the subject matter of the statement, notwithstanding the loss of
memory as to the statement itself.” Id. at 526 n. 13, 168 P.3d at 978 n. 13 (emphasis added). This court
noted that if “the accused has the opportunity to elicit the witness' testimony as to the subject matter of the
statement on cross-examination at trial, the accused's right of confrontation has been satisfied.” Id.

This argument is not persuasive because language in Fields also supports concluding that a witness need
not recall the subject matter of her statements to appear for cross-examination at trial, and our adoption of
Crawford supports interpreting Fields in this manner. …

Although Fields is ambiguous regarding whether a witness must recall the subject matter of her statements,
our adoption of Crawford as the test for whether a witness “appears at trial for cross-examination”
resolves this ambiguity. See id. at 517 & n. 9, 168 P.3d 955, 168 P.3d at 969 & n. 9. To the extent that
Fields can be interpreted as indicating that a witness must testify about the subject matter of a statement to
satisfy the confrontation clause, we reject this interpretation and instead hold that, under Crawford, a
witness who appears at trial and testifies satisfies the confrontation clause, even though the witness claims
a lack of memory that precludes them from testifying about the subject matter of their out-of-court
statement. As discussed below, this conclusion is supported by United States Supreme Court precedent,
the precedent of other jurisdictions applying Crawford, and the policies espoused in Fields.

Professor John Barkai, U.H. Law School - Evidence                                Page - 241
First, concluding that a witness appears for cross-examination at trial despite a memory loss is supported
by United States Supreme Court precedent, which this court relied on to interpret the Hawai„i
Constitution's confrontation clause in Fields. Id. Although Delos Santos' challenge comes under the
Hawai„i Constitution, we have relied on Crawford in determining whether a witness appears for
cross-examination at trial. Id. Thus, the Supreme Court's construction of the federal confrontation clause
is persuasive on this issue.FN14

The Supreme Court's construction of the federal confrontation clause indicates that a witness who forgets
both the underlying events and her prior statements nonetheless appears for cross-examination at trial…

In Owens, the Supreme Court observed that the question left unanswered in Green was “squarely
presented,” and the Court agreed “with the answer suggested 18 years ago by Justice Harlan.” United
States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). The Supreme Court held that
the “Confrontation Clause guarantees only „an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.‟ “ Id.
(internal quotation marks omitted) (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96
L.Ed.2d 631 (1987)). The Court also held that it “is sufficient that the defendant has the opportunity to
bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even
(what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence § 995, pp. 931-932
(J. Chadbourn rev.1970)) the very fact that he has a bad memory.”….

Although the factual scenario in Owens is distinguishable from this case because the witness in Owens
remembered making his prior identification, the principles elucidated in these decisions support
concluding that a witness appears for cross-examination at trial despite her inability to recall the incident
and making her prior statements.... Thus, Supreme Court precedent, which this court has relied upon in
delineating the requirements of the Hawai„i Constitution's confrontation clause, indicates that a witness
“appears for cross-examination” despite a nearly total loss of memory regarding the incident and her
statements.

Second, courts in other jurisdictions applying Crawford have held that a testifying witness appears for
cross-examination at trial despite a nearly total lapse in memory….

Thus, other courts have held that the admission of hearsay statements does not violate the confrontation
clause despite the declarant's complete failure to remember the subject matter of the statements….

Finally, the policies outlined in State v. Fields are not undermined in this case. In distinguishing the factual
circumstances of Fields, Delos Santos generally asserts that he did not have an adequate opportunity to
test the “credibility and veracity” of the Complainant's prior statements. In Fields, this court noted that the
“trier of fact was provided with adequate information to test the credibility and veracity of Staggs' prior
statement insofar as it could have reasonably inferred that (1) Staggs' drunken state rendered her prior
statement inaccurate or unreliable, and/or (2) Staggs was not an innocent victim but an aggressive
participant in the incident who, while angry at Fields, gave a false statement to the police.” Fields, 115
Hawai„i at 523, 168 P.3d at 975. This policy of providing the trier of fact with adequate information to test
Professor John Barkai, U.H. Law School - Evidence                                 Page - 242
the credibility of an out-of-court declarants' statements is not undermined by allowing a witness with no
recollection of the incident or her statements to testify. For instance, in this case, Delos Santos was able to
show that the Complainant was drunk that evening. Thus, although a witness may not recall the incident
or her prior statements, the defendant may still impugn the credibility of the witness.

Based on the analysis above, we hold that the admission of the Complainant's first statement that “my
boyfriend beat me up” did not violate the Hawai„i Constitution's confrontation clause….

As discussed above, courts applying Crawford have concluded that a witness without recollection of the
subject matter of her statements still appears for cross-examination. Therefore, we do not interpret Fields
to require cross-examination regarding the subject matter of the statement to satisfy the confrontation
clause. To the extent that our cases have concluded otherwise, they were displaced by our adoption of
Crawford in Fields.

D. The Proper Relief Is To Remand For a New Trial….
Based upon the foregoing analysis, we vacate the ICA's judgment on appeal and remand to the family
court for a new trial.




Professor John Barkai, U.H. Law School - Evidence                                Page - 243
Giles v. California, 554 U.S. 554 U.S. 353 (2008)
                                                                                   Forfeiture by Wrongdoing
www.oyez.org/cases/2000-2009/2007/2007_07_6053/




       When Dwayne Giles was tried in state court for the murder of his ex-girlfriend, he claimed self-defense.
       Giles stated that he had heard her vow to hurt him and a friend, and that she had previously shot a man and
       threatened people with knives. The prosecution then introduced evidence of a conversation between Giles'
       ex-girlfriend and police in which she claimed that he had assaulted her and threatened to kill her. The district
       court eventually convicted Giles of murder.


       On appeal, Giles argued that use of the police conversation violated his Sixth Amendment right to confront
       witnesses against him, namely, his deceased ex-girlfriend. [The California Court of Appeals affirmed Giles
       conviction. The California Supreme Court, unamimously ruled that Giles had forfeited his confrontation right
       by killing his ex-girlfriend.] The California Supreme Court explained that the doctrine of forfeiture by
       wrongdoing applied when the defendant intentionally caused the witness‘s unavailability by killing her, even
       absent an additional finding of specific intent.


       The California Supreme Court held that Giles had waived this right because he was the cause of his
       ex-girlfriend's absence. Although this exclusion was justified under common law rules of "forfeiture by
       wrongdoing", the Supreme Court had greatly constrained the admissibility of such evidence in its 2004
       holding in Crawford v. Washington. Crawford essentially wiped out the admissibility of such out-of-court
       statements unless the testimony could be subject to cross-examination at trial, an option that would be
       impossible under these circumstances. This case gives the Court an opportunity to expand on its decision
       in Crawford and to apply it to a situation where the wrongdoing that kept the witness from appearing in court
       was not motivated by a desire to prevent the witness' testimony.




       Question:
       Are a criminal defendant's rights under the Confrontation Clause of the Sixth Amendment violated when the
       common law "forfeiture by wrongdoing" doctrine is applied to allow out-of-court statements made by a
       witness, absent due to the defendant's own conduct, into evidence without giving defendant an opportunity
       to cross-examine the absent witness?

       Conclusion
       Yes. In a 6-3 decision, the Court held that the forfeiture by wrongdoing exception only applies to situations
       where the defendant causes the witness' absence with the intention of preventing that witness from
       testifying at trial. Without this intention, any act by the defendant making the witness unavailable does not
       waive that defendant's Sixth Amendment right to confront and cross-examine the witness, and therefore any
       out-of-court statements made by the witness are inadmissible as evidence. Justice Antonin Scalia delivered
       the opinion of the Court. Justice Clarence Thomas wrote a concurring opinion stressing his belief that
       statements such as those made by the witness in this case should not implicate the Confrontation Clause
       at all because the police questioning was not a "formalized dialogue." Justice Samuel Alito also wrote a
Professor John Barkai, U.H. Law School - Evidence                                     Page - 244
        concurring opinion suggesting that the witness' statements, in his view, did not fall within the Confrontation
        Clause but noting that neither party had made this argument before the Court. Justice David Souter, joined
        by Justice Ruth Bader Ginsburg, concurred in all parts of the majority opinion except one section
        denouncing the dissenting argument. Justice Souter stated that he did not find the dissent as wrongheaded
        as the majority suggested.

        The dissent, written by Justice Stephen Breyer and joined by Justices John Paul Stevens and Anthony
        Kennedy, argued that a defendant loses his right to confrontation when he makes a witness unavailable due
        to his own wrongdoing, even if he did not act with the specific intention of preventing her from testifying at
        trial.


Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook
R804(b)(6) Forfeiture by Wrongdoing
     (3) Rule applies in prosecution for homicide of declarant. The rule has been applied to admit statements
by the victim in a homicide prosecution where the motive for the homicide was to silence a potential witness to
other crimes. United States v. Emery, 186 F.3d 921, 926 (8th Cir.1999), cert. denied, 528 U.S. 1130, 120 S.Ct.
968, 145 L.Ed.2d 839 (2000). In Giles v. California, __U.S.__, 128 S.Ct. 2678, 171L.Ed.2d 488 (2008), the Supreme
Court noted that every commentator of which it was aware had concluded that this exception applies only when
the wrongdoer acted with the purpose of making the witness unavailable to testify.




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MELENDEZ-DIAZ V. MASSACHUSETTS
                                             129 S.Ct. 2527 (2009)

Background: Following conviction in state trial court on charges of distributing and trafficking in cocaine, the
Appeals Court of Massachusetts affirmed, ruling that trial court had comported with Sixth Amendment by admitting
certificates of analysis sworn by analysts at state laboratory without requiring in-court testimony by analysts. The
Supreme Judicial Court of Massachusetts denied review. Certiorari was granted.

Holdings:The United States Supreme Court, Justice Scalia, held that:
(1) analysts' certificates of analysis were affidavits within core class of testimonial statements covered by
Confrontation Clause;
(2) analysts were not removed from coverage of Confrontation Clause on theory that they were not ―accusatory‖
witnesses;
(3) analysts were not removed from coverage of Confrontation Clause on theory that they were not conventional
witnesses;
(4) analysts were not removed from coverage of Confrontation Clause on theory that their testimony consisted of
neutral, scientific testing;
(5) certificates of analysis were not removed from coverage of Confrontation Clause on theory that they were akin
to official and business records; and
(6) defendant's ability to subpoena analysts did not obviate state's obligation to produce analysts for
cross-examination.

Reversed and remanded.

  SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined.
THOMAS, J., filed a concurring opinion. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER
and ALITO, JJ., joined.

  JUSTICE SCALIA delivered the opinion of the Court.

      The Massachusetts courts in this case admitted into evidence affidavits reporting the results of forensic
analysis which showed that material seized by the police and connected to the defendant was cocaine. The question
presented is whether those affidavits are ―testimonial,‖ rendering the affiants ―witnesses‖ subject to the defendant‘s
right of confrontation under the Sixth Amendment.
                                                          I
     In 2001, Boston police officers [arrested petitioner, Luis Melendez-Diaz, and two other men after the officers
observed a suspected cocaine sale]. . . . After depositing the men at the station, they searched the police cruiser and
found a plastic bag containing 19 smaller plastic bags hidden in the partition between the front and back seats. They
submitted the seized evidence to a state laboratory required by law to conduct chemical analysis upon police request.
MASS. GEN. LAWS, ch. 111, § 12 (West 2006).
       Melendez-Diaz was charged with distributing cocaine and with trafficking in cocaine . . . . At trial, the
prosecution placed into evidence the [plastic bags]. It also submitted three ―certificates of analysis‖ showing the
results of the forensic analysis performed on the seized substances. The certificates reported the weight of the
seized bags and stated that the bags ―[h]a[ve] been examined with the following results: The substance was found
to contain: Cocaine.‖ The certificates were sworn to before a notary public by analysts at the State Laboratory
Institute of the Massachusetts Department of Public Health, as required under Massachusetts law. MASS. GEN.
LAWS, ch. 111, § 13.

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     Petitioner objected to the admission of the certificates, asserting that our Confrontation Clause decision in
Crawford v. Washington, 541 U.S. 36 (2004), required the analysts to testify in person. The objection was overruled,
and the certificates were admitted pursuant to state law as ―prima facie evidence of the composition, quality, and the
net weight of the narcotic . . . analyzed.‖ MASS. GEN. LAWS, ch. 111, § 13.
       The jury found Melendez-Diaz guilty. He appealed, contending, among other things, that admission of the
certificates violated his Sixth Amendment right to be confronted with the witnesses against him. The Appeals Court
of Massachusetts rejected the claim, relying on the Massachusetts Supreme Judicial Court‘s decision in
Commonwealth v. Verde, 444 Mass. 279, 283–85 (2005), which held that the authors of certificates of forensic
analysis are not subject to confrontation under the Sixth Amendment. The Supreme Judicial Court denied review.
We granted certiorari.
                                                             II
     . . . Our opinion [in Crawford] described the class of testimonial statements covered by the Confrontation
Clause as follows:

             ―Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its
     functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the
     defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably
     expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials,
     such as affidavits, depositions, prior testimony, or confessions; statements that were made under
     circumstances which would lead an objective witness reasonably to believe that the statement would be
     available for use at a later trial.‖ 541 U.S. at 51–52 (internal quotation marks and citations omitted).

       There is little doubt that the documents at issue in this case fall within the ―core class of testimonial statements‖
thus described. Our description of that category mentions affidavits twice. See also White v. Illinois, 502 U.S. 346,
365 (1992) (THOMAS, J., concurring in part and concurring in judgment) (―[T]he Confrontation Clause is implicated
by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions‖). The documents at issue here, while denominated by Massachusetts
law ―certificates,‖ are quite plainly affidavits: ―declaration[s] of facts written down and sworn to by the declarant
before an officer authorized to administer oaths.‖ BLACK‘S LAW DICTIONARY 62 (8th ed. 2004). They are
incontrovertibly a ―‗solemn declaration or affirmation made for the purpose of establishing or proving some
fact.‘― Crawford, supra, at 51 (quoting 2 N. W EBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).
The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as
the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial.
The ―certificates‖ are functionally identical to live, in-court testimony, doing ―precisely what a witness does on direct
examination.‖ Davis v. Washington, 547 U.S. 813, 830 (2006) (emphasis deleted).
     Here, moreover, not only were the affidavits ―‗made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later trial,‘― Crawford, supra, at 52,
but under Massachusetts law the sole purpose of the affidavits was to provide ―prima facie evidence of the
composition, quality, and the net weight‖ of the analyzed substance, MASS. GEN. LAWS, ch. 111, § 13. We can safely
assume that the analysts were aware of the affidavits‘ evidentiary purpose, since that purpose—as stated in the
relevant state-law provision—was reprinted on the affidavits themselves.
       In short, under our decision in Crawford the analysts‘ affidavits were testimonial statements, and the analysts
were ―witnesses‖ for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to
testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ―‗be
confronted with‘― the analysts at trial. Crawford, supra, at 54.1

1 Contrary to the dissent‘s suggestion, we do not hold, and it is not the case, that anyone whose testimony may be
Professor John Barkai, U.H. Law School - Evidence                                         Page - 247
                                                           III
      Respondent and the dissent advance a potpourri of analytic arguments in an effort to avoid this rather
straightforward application of our holding in Crawford. Before addressing them, however, we must assure the reader
of the falsity of the dissent‘s opening alarum that we are ―sweep[ing] away an accepted rule governing the admission
of scientific evidence‖ that has been ―established for at least 90 years‖ and ―extends across at least 35 States and
six Federal Courts of Appeals.‖
      The vast majority of the state-court cases the dissent cites in support of this claim come not from the last 90
years, but from the last 30, and not surprisingly nearly all of them rely on our decision in Ohio v. Roberts, 448 U.S.
56 (1980), or its since-rejected theory that unconfronted testimony was admissible as long as it bore indicia of
reliability.2 As for the six Federal Courts of Appeals cases cited by the dissent, five of them postdated and expressly
relied on Roberts. The sixth predated Roberts but relied entirely on the same erroneous theory. See Kay v. United
States, 255 F.2d 476, 480–81 (4th Cir. 1958) (rejecting confrontation clause challenge ―where there is reasonable
necessity for [the evidence] and where . . . the evidence has those qualities of reliability and trustworthiness‖).
     A review of cases that predate the Roberts era yields a mixed picture. As the dissent notes, three state
supreme court decisions from the early 20th century denied confrontation with respect to certificates of analysis
regarding a substance‘s alcohol content. But other state courts in the same era reached the opposite conclusion.
See Torres v. State, 18 S.W.2d 179, 180 (Tex. Crim. App. 1929); Volrich v. State, No. 278, 1925 WL 2473 (Ohio
App., Nov. 2, 1925). At least this much is entirely clear: In faithfully applying Crawford to the facts of this case, we
are not overruling 90 years of settled jurisprudence. It is the dissent that seeks to overturn precedent by resurrecting
Roberts a mere five years after it was rejected in Crawford.
     We turn now to the various legal arguments raised by respondent and the dissent. . . .
                                                           B
      Respondent and the dissent argue that the analysts should not be subject to confrontation because they are
not ―conventional‖ (or ―typical‖ or ―ordinary‖) witnesses of the sort whose ex parte testimony was most notoriously
used at the trial of Sir Walter Raleigh. . . .
      [T]he purported distinctions respondent and the dissent identify between this case and Sir Walter Raleigh‘s
―conventional‖ accusers do not survive scrutiny. The dissent first contends that a ―conventional witness recalls
events observed in the past, while an analyst‘s report contains near-contemporaneous observations of the test.‖ It is
doubtful that the analyst‘s reports in this case could be characterized as reporting ―near-contemporaneous
observations‖; the affidavits were completed almost a week after the tests were performed. But regardless, the
dissent misunderstands the role that ―near-contemporaneity‖ has played in our case law. The dissent notes that that
factor was given ―substantial weight‖ in Davis, but in fact that decision disproves the dissent‘s position. There the
Court considered the admissibility of statements made to police officers responding to a report of a domestic
disturbance. By the time officers arrived the assault had ended, but the victim‘s statements—written and oral—were
sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a ―present sense


relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must
appear in person as part of the prosecution‘s case. While the dissent is correct that ―[i]t is the obligation of the
prosecution to establish the chain of custody,‖ this does not mean that everyone who laid hands on the evidence
must be called. As stated in the dissent‘s own quotation, ―gaps in the chain [of custody] normally go to the weight of
the evidence rather than its admissibility.‖ . . . Additionally, documents prepared in the regular course of equipment
maintenance may well qualify as nontestimonial records.

2 The exception is a single pre-Roberts case that relied on longstanding Massachusetts precedent. Others are
simply irrelevant, since they involved medical reports created for treatment purposes, which would not be testimonial
under our decision today.
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impression.‖ Davis, 547 U.S. at 820. Though the witness‘s statements in Davis were ―near-contemporaneous‖ to the
events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the
witness. Id. at 830.*
       A second reason the dissent contends that the analysts are not ―conventional witnesses‖ (and thus not subject
to confrontation) is that they ―observe[d] neither the crime nor any human action related to it.‖ The dissent provides
no authority for this particular limitation of the type of witnesses subject to confrontation. Nor is it conceivable that
all witnesses who fit this description would be outside the scope of the Confrontation Clause. For example, is a
police officer‘s investigative report describing the crime scene admissible absent an opportunity to examine the
officer? The dissent‘s novel exception from coverage of the Confrontation Clause would exempt all expert
witnesses—a hardly ―unconventional‖ class of witnesses.
      A third respect in which the dissent asserts that the analysts are not ―conventional‖ witnesses and thus not
subject to confrontation is that their statements were not provided in response to interrogation. As we have explained,
―[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to
open-ended questions than they were to exempt answers to detailed interrogation.‖ Davis, supra, at 822–23 n.1.
Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his
testimony is any less a ―‗witness against‘ the defendant,‖ than one who is responding to interrogation. In any event,
the analysts‘ affidavits in this case were presented in response to a police request. If an affidavit submitted in
response to a police officer‘s request to ―write down what happened‖ suffices to trigger the Sixth Amendment‘s
protection (as it apparently does, see Davis, 547 U.S. at 819–20; id., at 840 n.5 (THOMAS, J., concurring in judgment
in part and dissenting in part)), then the analysts‘ testimony should be subject to confrontation as well.
                                                           C
      Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony
recounting historical events, which is ―prone to distortion or manipulation,‖ and the testimony at issue here, which is
the ―resul[t] of neutral, scientific testing.‖ Relatedly, respondent and the dissent argue that confrontation of forensic
analysts would be of little value because ―one would not reasonably expect a laboratory professional . . . to feel quite
differently about the results of his scientific test by having to look at the defendant.‖
     This argument is little more than an invitation to return to our overruled decision in Roberts, which held that
evidence with ―particularized guarantees of trustworthiness‖ was admissible notwithstanding the Confrontation
Clause. 448 U.S. at 66. What we said in Crawford in response to that argument remains true:

                 ―To be sure, the Clause‘s ultimate goal is to ensure reliability of evidence, but it is a procedural
     rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed
     in a particular manner: by testing in the crucible of cross-examination. . . . Dispensing with confrontation
     because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously
     guilty. This is not what the Sixth Amendment prescribes.‖ 541 U.S. at 61–62.

      Respondent and the dissent may be right that there are other ways—and in some cases better ways—to
challenge or verify the results of a forensic test.5 But the Constitution guarantees one way: confrontation. We do not
have license to suspend the Confrontation Clause when a preferable trial strategy is available.



* [Note that the Court here discusses the facts and result in Hammon v. Indiana, the companion case in Davis,
whereas the dissent stakes its claim that contemporaneous statements may not be testimonial on the facts and
result in Davis.
5 Though surely not always. Some forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated,
and the specimens used for other analyses have often been lost or degraded.

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     Nor is it evident that what respondent calls ―neutral scientific testing‖ is as neutral or as reliable as respondent
suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study
conducted under the auspices of the National Academy of Sciences, ―[t]he majority of [laboratories producing
forensic evidence] are administered by law enforcement agencies, such as police departments, where the
laboratory administrator reports to the head of the agency.‖ NATIONAL RESEARCH COUNCIL OF THE NATIONAL
ACADEMIES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 6–1 (Prepublication Copy
Feb. 2009) (hereinafter NATIONAL ACADEMY REPORT). And ―[b]ecause forensic scientists often are driven in their
work by a need to answer a particular question related to the issues of a particular case, they sometimes face
pressure to sacrifice appropriate methodology for the sake of expediency.‖ A forensic analyst responding to a
request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner
favorable to the prosecution.
      Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that
an honest analyst will not alter his testimony when forced to confront the defendant, the same cannot be said of the
fraudulent analyst. NATIONAL ACADEMY REPORT 1–8 to 1–10 (discussing documented cases of fraud and error
involving the use of forensic evidence). Like the eyewitness who has fabricated his account to the police, the analyst
who provides false results may, under oath in open court, reconsider his false testimony. And, of course, the
prospect of confrontation will deter fraudulent analysis in the first place.
      Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious
deficiencies have been found in the forensic evidence used in criminal trials. . . . One study of cases in which
exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony
contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and
Wrongful Convictions, 95 VA. L. REV. 1, 14 (2009). . . .6 . . .
     The affidavits submitted by the analysts [in this case] contained only the bare-bones statement that ―[t]he
substance was found to contain: Cocaine.‖ At the time of trial, petitioner did not know what tests the analysts
performed, whether those tests were routine, and whether interpreting their results required the exercise of
judgment or the use of skills that the analysts may not have possessed. . . . See 2 P. GIANNELLI & E. IMWINKELRIED,
SCIENTIFIC EVIDENCE § 23.03[c], at 532–33, ch. 23A, at 607 (4th ed. 2007) (identifying four ―critical errors‖ that
analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry
analysis).
      The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions. . . .
See NATIONAL ACADEMY REPORT 5–9, 5–12, 5–17, 5–21 (discussing problems of subjectivity, bias, and unreliability
of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms
analysis). Contrary to respondent‘s and the dissent‘s suggestion, there is little reason to believe that confrontation
will be useless in testing analysts‘ honesty, proficiency, and methodology—the features that are commonly the focus
in the cross-examination of experts.
                                                           D
       Respondent argues that the analysts‘ affidavits are admissible without confrontation because they are ―akin to
the types of official and business records admissible at common law.‖ But the affidavits do not qualify as traditional
official or business records, and even if they did, their authors would be subject to confrontation nonetheless.

6 Contrary to the dissent‘s suggestion, we do not ―rel[y] in such great measure‖ on the deficiencies of crime-lab
analysts shown by this report to resolve the constitutional question presented in this case. The analysts who swore
the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would
reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of
Mother Theresa. We discuss the report only to refute the suggestion that this category of evidence is uniquely
reliable and that cross-examination of the analysts would be an empty formalism.

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      Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay
status. See FED. RULE EVID. 803(6). But that is not the case if the regularly conducted business activity is the
production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U.S. 109 (1943), made that distinction
clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a
business record because, although kept in the regular course of the railroad‘s operations, it was ―calculated for use
essentially in the court, not in the business.‖ Id. at 114. The analysts‘ certificates—like police reports generated by
law enforcement officials—do not qualify as business or public records for precisely the same reason. See Rule
803(8) (defining public records as ―excluding, however, in criminal cases matters observed by police officers and
other law enforcement personnel‖). . . .
      The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally
admissible: a clerk‘s certificate authenticating an official record—or a copy thereof—for use as evidence. But a
clerk‘s authority in that regard was narrowly circumscribed. He was permitted ―to certify to the correctness of a copy
of a record kept in his office,‖ but had ―no authority to furnish, as evidence for the trial of a lawsuit, his interpretation
of what the record contains or shows, or to certify to its substance or effect.‖ State v. Wilson, 141 La. 404, 409 (1917).
The dissent suggests that the fact that this exception was ―‗narrowly circumscribed‘― makes no difference. To the
contrary, it makes all the difference in the world. It shows that even the line of cases establishing the one narrow
exception the dissent has been able to identify simultaneously vindicates the general rule applicable to the present
case. A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do
what the analysts did here: create a record for the sole purpose of providing evidence against a defendant.
       Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk‘s
certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the
testimony of the analysts in this case, the clerk‘s statement would serve as substantive evidence agains