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EVIDENCE (LAW 543) Fall 2012 HANDOUT # 2 CASES & PROBLEMS: TOPICS: Appellate Review Relevance Competence Witness Examination Authentication Best Evidence Impeachment Professor John Barkai & Richard Pollack William S. Richardson School of Law University of Hawaii at Manoa (808) 956-6546 email@example.com http://www2.hawaii.edu/~barkai/L543.html Cases are reprinted from Westlaw with permission. TABLE OF CONTENTS APPELLATE REVIEW OF EVIDENTIARY ISSUES ............................ 1 State v. Schnabel, ___ P.3d ___ (2012).............................................. 4 RELEVANCE ....................................................................................... 5 State v. Jaeger, 973 P.2d 404 (Utah 1999) ......................................... 6 State v. Arlt, 9 Haw.App. 263, 833 P.2d 902 (1992) ............................ 9 State v. Johnson, 3 Haw.App. 472, 653 P.2d 428 (1982) ................. 10 State v. Palisbo, 122 Haw. 546 (Unpublished) (2010)....................... 11 State v. Alston, 75 Haw. 517, 865 P.2d 157, 168 (1994) ................. 14 Evidence Irrelevant Under Rule 401 .................................................. 15 Practice cases: Look Before You Wheely .......................................................... 17 A Night At The Ace Bar And Grill .............................................. 18 401 Relevancy Problems .................................................................. 18 U.S. v. Noriega, 117 F.3d 1206 (1997) .............................................. 20 State v. Klafta, 73 Haw. 109, 831 P.2d 512 (1992) ........................... 22 State v. Edwards, 81 Haw. 293, 916 P.2d 703 (1996) ...................... 25 Kaeo v. Davis, 68 Haw. 447, 719 P.2d 387 (1986) .......................... 26 Evidence Irrelevant Under Rule 403 .................................................. 30 U.S. v. Old Chief, 519 U.S. 172 (1997) ............................................. 33 State v. McNeely, 8 P.3d 212 (Or.2000) ............................................ 35 403 Relevancy Problems .................................................................. 36 COMPETENCE ................................................................................. 37 State v. Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993) ....................... 38 State v. Moreno, 68 Haw. 233, 709 P.2d 103 (1985) ....................... 41 Rock v. Arkansas, 483 U.S. 44 (1987) ............................................. 42 Tanner v. U.S., 483 U.S. 107 (1987) ................................................. 44 State v. Furutani, 76 Haw. 172, 873 P.2d 51 (1994) ......................... 47 State v. Yamada, 108 Haw. 474, 122 P.3d 254 (2005) ..................... 48 State v. Bailey, ___ Haw. ___ (2012) ............................................... 52 Competency Problems ..................................................................... 56 WITNESS EXAMINATION................................................................. 57 State v. Kassebeer, 118 Haw. 493, 193 P.3d 409 (2008) ................. 58 State v. Marsh, 68 Haw. 659, 728 P.2d 1301 (1986) ........................ 59 Professor John Barkai, U.H. Law School Page - i State v. Rulona, 71 Haw. 127, 785 P.2d 615 (1990) ......................... 60 Side-by-side Comparison of HRE / FRE 606 .................................... 61 Baker v. State, 35 Md.App. 593, 371 A.2d 699 (1977) ...................... 62 State v. DiBenedetto, 80 Hawai'i 138, 906 P.2d 624 (1995) ............ 66 Toledo v. Lam, 67 Haw. 20, 675 P.2d 773 (1984) ............................. 68 The Jencks Act, 18 U.S.C. § 3500: ................................................. 68 State v. Leong, 51 Haw. 581, 465 P.2d 560 (1970) .......................... 69 State v. Elmaleh 7 Haw.App. 488, 782 P.2d 886 (1989) ................... 70 Witness Examination Problems ......................................................... 73 WITNESS EXAMINATION SIMULATION .......................................... 74 Direct Examination ............................................................................ 75 Cross Examination ............................................................................ 77 Some Common Legal Objections ...................................................... 79 Hawaii Liquor Commission v. Jones ................................................ 80 Hawaii Liquor Commission v. Jones - Evidentiary Problems ............ 82 Foundations and Impeachment Class Material ................................. 83 AUTHENTICATION ........................................................................... 91 Exhibits - Steps In Introducing Exhibits ............................................. 92 State v. Sequin, 73 Haw. 331, 832 P.2d 269 (1992) ......................... 93 State v. Vance, 61 Haw. 291, 602 P.2d 933 (1979) .......................... 94 Bruther v. General electric, 818 F.Supp 1238 (S.D. Ind. 1993) ......... 95 United States v. Casto, 889 F.2d 562 (5th Cir. 1989) ........................ 97 United States v. Grant, 967 F.2d 81 (2d Cir. 1992) ........................... 98 United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998) ............... 99 United States v. Jackson, 208 F.3d 633 (7th Cir. 2000) .................. 101 State v. Konohia, 106 Haw. 517, 107 P.3d 1190 (2005) ................. 103 Pioneer Mill Company v. Dow, 90 Haw. 289, 978 P.2d 727 (1999) ............ 105 Authentication Problems ................................................................. 107 BEST EVIDENCE ............................................................................ 109 HRE 1001 - 1008 ............................................................................. 110 United States v. Duffy, 454 F.2d 809 (5th Cir. 1972) ....................... 111 Seiler v. Lucasfilm, 808 F.2d 1316 (1987) ....................................... 112 State v Espiritu, 117 Haw. 127, 176 P.3d 885 (2008) ..................... 114 Best Evidence / Original Writings Problems .................................... 118 Professor John Barkai, U.H. Law School IMPEACHMENT .............................................................................. 121 HRE Impeachment Overview - JB ................................................. 122 FRE Impeachment Overview - JB ................................................. 123 Rule 607. Who May Impeach .......................................................... 124 HRE & FRE Rule 609 (Side-by-side) .............................................. 125 HRE 609 - JB ................................................................................ 126 FRE 609 - JB ................................................................................. 127 State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) H 609 .............. 129 U.S. v. Bracken, 969 F.2d 827 (9th Cir. 1992) F 609 ...................... 131 Luce v. United States, 469 U.S. 38 (1984) F 609 ............................ 133 Ohler v. United States, 529 U.S. 753 (2000) F 609 ......................... 134 State v. Schnabel, ___ P.3d ___(2012) ......................................... 136 Prior Conviction Problems ............................................................... 140 Impeachment Chart Problems - Rules 609 - JB ............................ 141 HRE 608 - JB ................................................................................ 142 FRE 608 - JB ................................................................................. 143 State v. Torres, 85 Haw. 417, 945 P.2d 849 (1997) R 608(a) .............. 144 State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987) R 608(b) ............ 148 HRE 609.1 Evidence of bias, interest, or motive .......................... 155 State v. Balisbisana, 83 Haw. 109, 924 P.2d 1215 (1996) R 609.1 ............... 156 HRE 613, Prior Statements of Witnesses ...................................... 159 FRE 613, Prior Statements of Witnesses ....................................... 160 Intrinsic & Extrinsic Impeachment: Rules 608, 609, 609.1, 613 .............. 161 Rule 613 Prior Statements of Witnesses (SBS) ............................. 162 Prior Bad Acts & Bias Impeachment Problems ............................... 163 Contradiction & Prior Statements Problems .................................... 164 Court Observation Form #1 ............................................................. 166 Professor John Barkai, U.H. Law School Appellate Review of Evidentiary Issues Questions and Answers 1. During a trial, after Plaintiff’s attorney asks a question, Defendant’s counsel loudly states, “Objection!” The court overrules the objection, and allows the witness to answer the question. Assume the question was in fact objectionable. On appeal, what will the court do if Defendant’s counsel argues that admission of the evidence over her objection was error? The general rule, set forth in Rule 103(a) (1), is that error may not be predicated on the trial court’s admission of evidence unless “a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” Here, Defendant’s counsel made an objection, but it was not specific as to the ground. Thus, unless the ground of the objection is clear from the transcript the appellate court has before it, the court will decline to review the alleged error. 2. During a trial, Plaintiff’s attorney asks a question that calls for inadmissible evidence. The witness answers the question before Defendant’s counsel realizes that the question was objectionable. What should Defendant’s counsel do? The proper step is to make a motion to strike the witness’s answer, together with a request that the judge instruct the jury to ignore the answer. As with an objection, the motion to strike should state the specific grounds on which the question was improper. Obviously, the motion to strike, even if granted, is not nearly as effective as an objection lodged before the witness has an opportunity to answer. The jury already will have heard the answer, and will have difficulty following the court’s instruction to ignore it. 3. Why is it necessary to “make the record” during trial? It is never possible to know when the trial court’s judgment will be appealed. Because witnesses will not be called to testify before the appellate court, and because the only trace of the trial court proceedings which the appellate court will see is a transcript and other documentary records, parties must make sure that all such writings clearly indicate not only any objections and their basis, but the effect that admission or exclusion of the evidence likely had on the trial. Only by providing the most complete possible context can the appellate court adequately determine both whether the trial court erred and whether the error “affected a substantial right” of the appealing party. 4. Why is it said so often that the trial judge’s evidentiary rulings will not be disturbed in the absence of “abuse of discretion”? Appellate courts recognize that much of what is needed to determine a proper evidentiary ruling cannot adequately be reflected in an appellate record. Such things as the effect of a witness’s demeanor and the sensitivities of jurors, for Professor John Barkai, U.H. Law School example, will not be reflected adequately in the record. Thus, the trial court will be in a better position to make the ruling. 5. A character evidence rule, which we will study later, forbids the prosecution in a murder case, during its case-in-chief, from presenting evidence of Defendant’s character for violent behavior. If Defendant objects to such evidence, and the trial court overrules the objection, is the court’s decision subject to “abuse of discretion” review on appeal? Arguably not. A categorical rule does not allow for leeway. If indeed the evidence is categorically excluded by the rule, the trial court had no “discretion” to admit it, and thus its decision should not be reviewed for “abuse of discretion.” A more appropriate standard would be to review for “error of law,” or to conduct “de novo review,” which are essentially the same. 6. If an appellate court finds that a trial court committed error in the admission or exclusion of evidence, will the appellate court necessarily reverse the judgment of the trial court? If the trial court erred, it is necessary to determine whether the error “affected a substantial right of a party.” In other words, the court must determine if the error was “prejudicial.” This is a complex standard, but it is most often understood to mean that the error had an effect on the outcome of the case. 7. Why not reverse whenever the trial court errs? Wouldn’t a reversal make the court more careful in issuing its evidentiary rulings? Appellate courts recognize that trial judges generally must rule quickly and in the heat of the trial. With hindsight, not all rulings will be correct. But if appellate courts scrutinized all trial court rulings in great depth, reversal will result too often, and the system will become even more congested than it is currently. The upshot is that appellate courts give trial judges a good deal of leeway in their evidentiary rulings. It is often said that parties are entitled to fair trials, not perfect ones. 8. Making an offer of proof is sometimes time-consuming and disruptive of the flow of the trial. Why can’t any necessary information be provided on appeal rather than at the time of the trial? Trial judges should be given every opportunity to correct possible error before an appeal is taken. When the parties argue all objections fully, and when they make a record of the substance of any evidence the court excluded, the trial court will have an opportunity to rethink its decision and correct possible error. Ultimately, this might save resources by avoiding the necessity for an appeal. 9. What will usually happen on appeal if the aggrieved party does not make its appellate record? The usual result is that the appellate court will decline to review the alleged error. If this happens, and the matter is sufficiently important, the lawyer who failed to Professor John Barkai, U.H. Law School Page - 2 make the record might well be liable to the client for malpractice. 10. When will an appellate court review an alleged error even though the appellant failed to “make the record” at trial? Rule 103(d) allows the appellate court to notice “plain error.” This would be possible only when both the nature of the error and its effect on the trial are clear from the record before the appellate court. Normally, this will not be true. For example, while it might be possible to determine that the trial court erroneously sustained a hearsay objection, if the aggrieved party did not make an offer of proof of the nature of the excluded evidence, the appellate court probably will not be able to determine whether the error was prejudicial. 11. How can a party make an offer of proof of the nature of excluded evidence without subjecting the jury to that evidence and thus prejudicing the rights of the opponent? There are several ways to do this. Perhaps the simplest is to ask the judge to excuse the jury while the offer is made in front of the court reporter. Another is to inform the court reporter of the substance of the evidence during a break in the trial, when the jury is not present. Professor John Barkai, U.H. Law School Page - 3 State v. Schnabel, --- P.3d ---- (2012) HSC 91 BNA Criminal Law Reporter 240 (2012) JUVENILES: USE OF JUVENILE RECORDS BANNED IN ADULT COURT Under Hawaii law, a defendant's juvenile records cannot be admitted at his adult trial for any purpose, the Hawaii Supreme Court held May 11. (State v. Schnabel 5/11/12) The Illinois Supreme Court recently looked at the issue under its own law and concluded that evidence of a defendant's prior juvenile adjudications is inadmissible to impeach him unless the defense “opens the door” to its use. People v. Villa,959 N.E.2d 634,90 CrL 393 (Ill. 2011). Under Haw. Rev. Stat. Section 571-84(a), juvenile records are generally unavailable for public inspection. An exception in Section 571-84.6 allows records of violent juvenile offenses to be made public under certain circumstances “notwithstanding any other law to the contrary.” However, Section 571-84(h) provides that evidence from juvenile proceedings is not “lawful or proper evidence against the minor” involved “in any cause” other than subsequent juvenile proceedings. In this case, the state argued that evidence from the defendant's juvenile proceeding was admissible to impeach his testimony at his adult trial. In an opinion by Justice Simeon R. Acoba Jr., the state high court said the plain language of Section 571-84(h) is dispositive and precludes the admission of evidence from juvenile proceedings “in any adult criminal case for any purpose whatsoever.” Section 571-84(a) has to do with public inspection of records, whereas Section 571-84(h) has to do with evidentiary use of those records, the court said. The two do not conflict, so the phrase “notwithstanding any other law to the contrary” does not indicate that that provision was intended to trump the evidentiary ban, it said. “The transcripts of testimony given in Petitioner's prior juvenile proceedings could be open to the public for inspection, while at the same time, evidence given in such proceedings would be precluded from use in subsequent adversarial proceedings,” the court held. Chief Justice Mark E. Recktenwald, dissenting and joined by Justice Paula A. Nakayama, said the defendant waived his argument and that, in any event, admission of the evidence did not violate Section 571-84(h) because the defendant opened the door to it. Professor John Barkai, U.H. Law School Page - 4 RELEVANCE Professor John Barkai, U.H. Law School Page - 5 STATE v. JAEGER, 973 P.2d 404 (Utah 1999) HOWE, Chief Justice: Defendant Donald L. Jaeger appeals from his took the phone. He asserted that after Mary second degree murder conviction, a first began talking to her mother, he threw a degree felony in violation of Utah Code Ann. blanket and pillow into the hall for her and he § 76-5-203 (1989). He contends that (1) the then went to bed. He stated that he later trial court erroneously excluded evidence of awoke to a “bang” and that he found Mary the victim's prior suicide attempt.... lying unconscious on the kitchen floor. He FACTS maintained that she shot herself. On August 22, 1990, shortly after However, other evidence contradicted midnight, Jaeger called 911 from his home Jaeger's story. The police swabbed both and reported that his nineteen-year-old Jaeger's and Mary's hands for gunshot residue live-in girlfriend, Mary Barndt, had shot (“GSR”). These swabs were then taken to the herself. When police and paramedics arrived, state crime lab and examined by two separate they found Mary partially clothed and lying experts. Both experts concluded that the in the kitchen. A .22 caliber pistol was lying swabs taken from Jaeger's hands contained “pretty close” to her right foot, and an empty elements of GSR while the swabs taken from shell casing was found between her ankles. Mary's hands did not. Thus the GSR The police also found a bra next to her body. evidence suggested that Jaeger, not Mary, Mary was unconscious and had a weak had fired a gun. pulse when the paramedics began to treat her In addition to the GSR evidence, Dr. injuries. The bullet entered her neck just Edward A. Leis, the Deputy Chief Medical above her clavicle and had struck the Examiner, performed an autopsy on Mary's subclavian artery, causing severe internal body. The autopsy showed that Mary died bleeding. In an attempt to preserve evidence, from a gunshot wound to the neck. Moreover, one of the police officers taped brown paper on the basis of the autopsy results, Dr. Leis bags on Mary's hands. She died shortly after opined that Mary's death was a homicide, not arriving at the hospital. a suicide. Jaeger told one of the officers that when he The State charged Jaeger with second arrived home from work at about 7:30 p.m., degree murder.... the house appeared empty. However, at 8:30 The central issue at Jaeger's trial was p.m., he discovered Mary's whether Mary's death was a suicide or a thirteen-month-old daughter alone in a back homicide. During trial, Jaeger sought to bedroom. He admitted that he was angry and admit certain medical records from Valley upset that Mary had left the child unattended. Mental Health's Adolescent Residential He called Judy Clark, Mary's mother, in an Treatment & Education Center (“ARTEC”). attempt to locate Mary, but she did not know Mary was a resident of ARTEC from 1986 to Mary's whereabouts. 1987 because she was “ungovernable,” ran Jaeger also told police that when Mary away from home, and abused alcohol and finally returned home at around 12:10 a.m., drugs. The ARTEC records contained he told her that he was tired of her lying and statements Mary allegedly made admitting wanted her out of the house by the next day. that she had attempted suicide in the past but He said that he then called her mother again denying any suicidal ideation while a resident and that after a struggle, Mary reluctantly of the program. The State objected to the Professor John Barkai, U.H. Law School Page - 6 admission of the records; the court sustained Irrelevant evidence is inadmissible under the objection, ruling that they were irrelevant. rule 402 of the Utah Rules of Evidence. That Jaeger was ultimately convicted as rule provides: “All relevant evidence is charged and was sentenced to serve a term of admissible, except as otherwise provided by five years to life in prison. Thereafter, he the Constitution of the United States or the moved for a new trial on the basis that the Constitution of the state of Utah, statute, or trial court erroneously excluded evidence of by these rules.... Evidence which is not Mary's past suicide attempt. The court relevant is not admissible.” Utah R. Evid. denied the motion. Jaeger now appeals. 402 (emphasis added). Thus, where the proffered evidence has no probative value to ANALYSIS a fact at issue, it is irrelevant and is I. EVIDENCE OF PAST SUICIDE inadmissible under rule 402. However, ATTEMPT because the standard for determining whether evidence is relevant is so low, the issue of The first issue presented is whether the whether evidence is relevant is rarely an trial court erred in excluding the ARTEC issue. records which contained Mary's statements The trial court held that ninety-nine that she had attempted suicide on a previous percent of the ARTEC records were occasion. The court excluded these records irrelevant and that they were “very on the basis that they were irrelevant. Jaeger, speculative, both as to content and as to the however, contends that such records were time element.” Although the trial court did relevant because the main issue at trial was not cite to any particular rule, it apparently whether Mary's death was a homicide or a concluded that these records failed to meet suicide. He further argues that this evidence rule 401's definition of relevant evidence and was admissible under other rules of evidence excluded them under rule 402. This decision not considered by the court. We agree that was erroneous. the court erred by excluding this evidence but As stated above, the primary issue at trial ultimately conclude that such error was was whether Mary's death was a homicide or harmless. a suicide. Jaeger sought to introduce the ARTEC records as evidence supporting his A. The Relevance of the ARTEC Records defense that Mary committed suicide. The court apparently excluded this evidence on Rule 401 of the Utah Rules of Evidence the basis that proof that a person attempted defines relevant evidence as “evidence suicide when she was a young, having any tendency to make the existence of “ungovernable” teenager is not probative of any fact that is of consequence to the whether this same person committed suicide determination of the action more probable or when she was nineteen years old. less probable than it would be without the We noted earlier that the standard for evidence.” Utah R. Evid. 401 (emphasis determining whether evidence is relevant is added). In other words, “[e]vidence that has very low. It is reasonable to believe that a even the slightest probative value” is relevant person who has attempted suicide in the past under the definition in rule 401.... may attempt suicide again. The flaw in the Professor John Barkai, U.H. Law School Page - 7 trial court's reasoning was its failure to recognize that while the remoteness of the evidence may reduce its probative value, rule 401 states that relevant evidence is evidence that has “any tendency to make the existence of any fact ... more probable or less probable,” Utah R. Evid. 401 (emphasis added), and the ARTEC records in this case met that standard. In sum, we conclude that the trial court erred in holding that the ARTEC records were irrelevant. These records might have aided the jury in determining whether Mary's death was a homicide or a suicide. Thus this evidence was relevant under rule 401 and was not excludable under rule 402.... We affirm Jaeger's conviction and sentence. Although the court erred in excluding the ARTEC records as irrelevant, we conclude that such error was harmless.... Professor John Barkai, U.H. Law School Page - 8 STATE v. ARLT R 401, 403 9 Haw. App. 263, 833 P.2d 902 (1992) Defendant was convicted before the First Circuit thereafter and arrested Defendant and Charles. Court, Honolulu County, of first-degree robbery, and After the boys were handcuffed, the police had he appealed. The Intermediate Court of Appeals, them sit on the ground while awaiting transportation Watanabe, J., held that: (1) testimony that defendant, to the station. One of the officers remarked that there after he was arrested, attempted to “lick the blood” appeared to be blood on the shirts of all three boys. off his shirt was relevant and admissible; Defendant apparently overheard this statement and tried to “lick the blood” off his shirt. Defendant was OPINION OF COURT: ordered to stop and he did.... In February 1990, Defendant, who had recently On April 24, 1990, Defendant was indicted on the turned eighteen, and his two friends, Charles and charge of Robbery in the First Degree, a violation of Chance Dunn, came to Hawaii from California for a Hawaii Revised Statutes (HRS) s 708- 840(1)(b)(i) two-week vacation. On the evening of February 28, (1985). After a jury trial in the First Circuit Court, 1990, after consuming several drinks at a luau, Defendant was convicted as charged. Defendant was Defendant and his friends decided to cap off the subsequently sentenced to eight years' incarceration evening with beer and tequila. The trio wandered as a youthful offender and ordered to pay $1,871.21 into the Beach Market superette on Ena Road in in restitution. Waikiki to purchase the liquor. When owner Suk Joo Defendant timely appealed, contending that the Kim (Kim) refused to sell the boys the liquor without trial court committed reversible error in three proper identification, Defendant grabbed the bottle of respects.... Finally, Defendant argues that the trial tequila he had placed on the cash register counter and court should not have allowed the “blood-sucking” fled the store. Kim then pressed a silent alarm button incident to be presented to the jury because such and told the Dunn brothers to wait until the police evidence was both prejudicial and irrelevant. arrived. The brothers, however, walked out of the DISCUSSION store shortly thereafter. Kim then changed from I. slippers to sneakers, locked the store, and went  Addressing, first, the admission of the looking for the boys. Eventually, he caught up with blood-sucking evidence, we note initially that it is a the two brothers in a parking lot about 100 meters well-settled rule that the trial court is vested with from the store and asked them to sit down and wait discretion regarding the admissibility of evidence at on the sidewalk area. Charles Dunn remained seated, trial and such a decision will not be reversed absent but Chance Dunn managed to run away. an abuse....  Reviewed against this standard, we conclude Chance then found Defendant, and the two that the trial court did not abuse its discretion by returned to Kim. Chance took the bottle from admitting testimony about the blood-sucking incident. Defendant and placed it on a newspaper stand. When The evidence was relevant to indicate Defendant's Kim asked for the bottle, Defendant picked up the consciousness of his actions and his attempts to get bottle and held it out to Kim saying, “here is your rid of evidence that might link him to a crime. Any bottle.” A “very angry” Kim extended his hand to prejudicial effect that such testimony may engender receive the bottle and said, “give me.” ... At that point, does not, in our view, outweigh the relevancy of the Defendant thought that Kim was going to hit him. testimony. Defendant claims that he then swung the bottle in an [JB: conviction vacated on other grounds] attempt to deflect Kim's arm. However, Kim ducked and the bottle struck him on the head. The bottle broke, either when it struck Kim's head or when it fell to the ground after the blow. The boys then fled in a panic and quickly hailed and jumped into a taxi. Subsequently, Kim caught up with the cab and jumped in front of it to block the boys' escape. The police arrived immediately Professor John Barkai, U.H. Law School Page - 9 STATE v. JOHNSON Defendant contends that Mrs. 3 Haw.App. 472, 653 P.2d 428 (1982) Peacock's testimony regarding the movement of the car, except for the The defendant was convicted of ... time from and after the stoplight, was Negligent Homicide in the Second too remote from the moment of impact Degree, HRS s 707-704. to be relevant... *** ... In the early morning of August 31, The evidence was illustrative of the 1978, defendant left his home in Kula, manner in which defendant was driving Maui, [and] drove his wife's yellow his vehicle prior to the accident. The Datsun station wagon... along prosecutor was entitled to prove this as Kamehameha Highway and entered evidence of defendant's conduct and onto Hana Highway. While travelling whether, under all of the circumstances, along Hana Highway, defendant's auto he should have perceived a risk crossed over the centerline and struck resulting from his conduct. an oncoming car, fatally injuring a passenger therein. The manner in which defendant's car was being driven was a factor which Defendant contends that it was error the jury could have considered in for the court to allow Mrs. Peacock to determining whether defendant was testify as to her observations of a negligent and, therefore, was relevant. yellow car earlier than the period The court did not err. immediately prior to the accident. Peacock testified that she saw a small yellow vehicle pass her a few minutes before the accident and proceed to make three to four quick lane changes in traffic. She testified that her thought at that time was, “There is a dangerous driver,” and that he was breaking the law. She later caught up with the same car at a stoplight. As they proceeded after stopping for the light, the small yellow car suddenly veered across the centerline and collided with the oncoming car. Professor John Barkai, U.H. Law School Page - 10 STATE v. Palisbo R 401 Unpublished opinion, 122 Hawai'i 546, 229 P.3d 364, 2010 WL 1617684 (Hawai'i App.) Defendant-Appellant Palisbo was convicted of (1) Unauthorized Possession of Confidential Personal Information, (2) Forgery in the Second Degree, (3) Credit Card Theft, and (4) Identity Theft in the Third Degree. [FN The Honorable Richard W. Pollack presided.] On appeal, Palisbo asserts that the circuit court reversibly erred by admitting “irrelevant and prejudicial evidence,” “failing to give a timely and adequate limiting instruction” on the prejudicial evidence, and [other issues]. As explained below, we affirm the circuit court's judgment. On May 18, 2007 Palisbo and an unidentified female companion entered the Codi Club, a Waikiki clothing accessories store, and attempted to purchase $175.85 worth of merchandise. When asked for payment, Palisbo took a credit card from his back pocket and gave it to the companion who handed it to the store clerk. The clerk noted that the credit card was issued to Renee Nakama (Nakama), so she asked Palisbo and his companion for identification to determine the credit card's owner. Neither Palisbo, nor his companion responded to the request. After the clerk's third request, Palisbo and his companion simultaneously stated “that's mine.” The companion explained that her identification was “in the car,” while Palisbo said that the credit card belonged to his ex-wife, whom he could call at anytime. When asked, Palisbo was unable to recite his ex-wife's last name. The clerk and her supervisor processed the transaction to see if the signature on the credit card and the signature on the receipt would match. After the credit card was accepted electronically and a receipt printed, Palisbo signed the receipt on the signature line above Nakama's name. Palisbo's signature did not match the signature on the back of the credit card. The clerk voided the sale and told Palisbo that she could not return the credit card to him. Palisbo responded that he “wanted his card back.” The clerk explained that, unless Palisbo produced identification which confirmed that the credit card was his, she could not give the credit card back to him. The clerk asked Palisbo to leave the store and called the police…. During trial, Nakama testified that her car had been broken into on the morning of May 18, 2007, and that her schoolbag, containing her wallet, books, and a thumbdrive had been stolen. Nakama explained that her wallet contained credit cards, gift cards, cash, checks, and identification, and that one of the credit cards was the credit card produced by Palisbo at Codi Club later that day. At the close of the direct examination, and following defense counsel's election to ask no questions of Nakama, the circuit court gave the following limiting instruction: “Members of the jury, you have heard the evidence that Miss Nakama's car was broken into. You are not to consider or to speculate as to who the person was who committed that offense.”… Palisbo argues that “[t]he circuit court erred in admitting irrelevant and prejudicial evidence regarding the break-in of Nakama's vehicle because such evidence was inadmissible under Rules 401, 402, and 403 of the [ HRE] .” Additionally, Palisbo contends that “[t]he circuit court reversibly erred in failing to give a timely and adequate limiting instruction.” Specifically, Palisbo argues that “[a]lthough the circuit court gave a limiting instruction, it did so only after the State introduced the incompetent evidence[,]” and that Professor John Barkai, U.H. Law School Page - 11 “the circuit court should have instructed the jury prior to the introduction of the evidence and during the charge to the jury. In addition, the limiting instruction failed to adequately instruct the jury as to the proper and improper use of the evidence.”… Here, the break-in evidence was relevant to show, among other things, the absence of mistake or consent on the part of Nakama. The absence of consent is a necessary element for the charges in Counts I and III. See Haw.Rev.Stat. § 708-839.55(1) (“[a] person commits the offense of unauthorized possession of confidential personal information if that person intentionally or knowingly possesses, without authorization, any confidential personal information of another”) (emphasis added); and Haw.Rev.Stat. § 708-8102(1) (“[a] person who takes a credit card from the person, possession, custody, or control of another without the cardholder's consent or who, with knowledge that it has been so taken, receives the credit card with intent to use it”) (emphasis added). Ultimately, the break-in evidence was relevant because it made the fact that the credit card in question was used and possessed by Palisbo without Nakama's consent more probable than it would have been without the evidence. Accordingly, the circuit court correctly found that the evidence was relevant. Here, evidence of the break-in was necessary to establish when Nakama's credit card was taken, that it was taken without her consent, and a lack of mistake by Palisbo, in order to satisfy the elements of Counts I and III. In addition, the circuit court was concerned that if the jury was not informed as to the circumstances of how Nakama was dispossessed of her credit card, “the jury might speculate that somebody actually broke into her house[,]” and thus unwarrantedly attribute further bad acts to Palisbo. Although Palisbo offered to stipulate that the credit card was taken, the prosecution is under no obligation to accept such a stipulation. United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir.1990) (court did not abuse its discretion in allowing evidence over defendant's offer to stipulate). In addition, the offer to stipulate that the card “was taken” did not address the State's need to establish that the card was taken without consent or mistake, or the circuit court's concern that, without some explanation of the circumstances, the jury might be misled into speculating about the methodology. Moreover, because the proffered evidence dealt with a crime for which Palisbo was not charged, the danger of overriding prejudice was substantially decreased. See State v. Cordeiro, 99 Hawai‘i 390, 418, 56 P.3d 692, 720 (2002) (the danger of unfair prejudice was significantly diminished because the evidence related to a dissimilar crime). Any prejudicial effect of admitting the break-in evidence was mitigated by the circuit court's limiting instruction that the jurors were “not to consider or to speculate as to who the person was who committed that offense.” See State v. Jhun, 83 Hawai‘i 472, 482, 927 P.2d 1355, 1365 (1996) (stating that “[a]s a rule, we presume that the jury followed all of the trial court's instructions”). Therefore, we conclude that the circuit court did not abuse its discretion in finding that the probative value of the evidence surrounding the loss of Nakama's credit card was not substantially outweighed by its prejudicial effect. See Richie, 88 Hawai‘i at 37, 960 P.2d at 1245 (holding that the abuse of discretion standard is used when balancing probative value and prejudicial effect of evidence). …In light of the overwhelming evidence showing that Palisbo was guilty of the charged offenses Professor John Barkai, U.H. Law School Page - 12 beyond a reasonable doubt, any error in admitting the evidence was harmless. The record shows that Palisbo had possession of Nakama's stolen credit card without her consent, that he attempted to use it to purchase merchandise without authorization, that when questioned he stated that the credit card was his, and that he signed the receipt above Nakama's name without her permission. Moreover, the disputed break-in evidence was of an offense for which Palisbo was not charged with, and the jury was specifically instructed not to speculate that Palisbo was the one who committed the offense. When examined in light of the entire proceedings, and giving the disputed break-in evidence the effect to which the whole record shows it is entitled, it cannot be said that there was a reasonable possibility that the introduction of the break-in evidence contributed to Palisbo's conviction. See Pauline, 100 Hawai‘i at 378, 60 P.3d 306, 328 (2002) (stating the harmless error standard). The evidence of Palisbo's guilt in this case was overwhelming; accordingly, the circuit court did not commit reversible error in admitting the break-in evidence. Following introduction of the break-in evidence and the theft of the credit card, the circuit court admonished the jury that they were “not to consider or to speculate as to who the person was who committed that offense.” Palisbo asserts that the limiting instruction “was plainly erroneous,” specifically that the circuit court's limiting instruction “should have been given prior to the introduction of the evidence and during the charge to the jury[,]” and that it “failed to adequately inform the jury on the proper and limited use of the evidence.” A limiting instruction must be given upon request if evidence is admissible as to one party or for one purpose, but not as to another party or another purpose, or if the evidence was admitted to show character, other crimes, wrongs or acts. Haw. R. Evid. 105, 404. Palisbo, however, did not request a limiting instruction, and the evidence was admitted for a specific purpose unrelated to HRE Rule 404. See, supra, n.3. Nevertheless, a limiting instruction “may also be necessary to prevent potential prejudice to a defendant.” State v. Murray, 116 Hawai‘i 3, 18-19, 169 P.3d 955, 970-71 (2007) (citing State v. Konohia, 106 Hawai‘i 517, 528, 107 P.3d 1190, 1201 (App.2005). While the circuit court's decision to provide a limiting instruction was appropriate under the circumstances, the assertion of error is without merit because we conclude that the limiting instruction was both timely and adequate. The Judgment of Conviction and Sentence entered in the circuit court is affirmed. Professor John Barkai, U.H. Law School Page - 13 STATE v. ALSTON 75 Haw. 517, 865 P.2d 157, 168 (1994) [Defendant was convicted before the First Circuit Court, City and County of Honolulu, of one count of intimidating a witness and one count of terroristic threatening in the second degree, and he appealed. ... Affirmed] ... “[D]ifferent standards of review must be applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue.” Kealoha v. County of Hawai'i, 74 Haw. 308, 319, 844 P.2d 670, 676, recon. denied, 74 Haw. ----, 847 P.2d 263 (1993). Trial court determinations made pursuant to HRE 401 are reviewed under the right/wrong standard of review. Id. On the other hand, decisions made under evidentiary rules requiring a “judgment call” are reviewed for abuse of discretion. Id. at 319-20, 844 P.2d at 676. Specifically, the abuse of discretion standard applies to a trial court's resolution of a HRE 403 objection. Id. at 323, 844 P.2d at 677. Likewise, HRE 404 “represents a particularized application of the principle of [HRE] 403” (see Commentary to HRE 404), and we will employ the same abuse of discretion standard of review. A BARKAI NOTE: Sometimes it seems like everything is relevant by the Rule 401 standard. SO WHAT IS NOT RELEVANT? Remember, says Professor Barkai, to determine relevancy, one must look to the substantive law the governs the parties' dispute. On the next two pages there are a few examples of what was not relevant. Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook Rule 103(b) Offer of proof—Form. R103(b) accords the trial judge discretion as to the form of an offer of proof. A formal offer, in question-and-answer form, is a more reliable method. A question-and-answer offer eliminates doubt as to the harm caused by the exclusion, and may encourage the trial judge to reconsider the ruling. An opponent may request that the court direct the question-and-answer form in order to "call the bluff' of a proponent whose avowal may be optimistic. Example. "To answer the standard of review, we must first determine whether Silver Mountain made the requisite offer of proof. An offer of proof is necessary to permit the trial judge to make an informed evidentiary ruling as well as `to create a clear record that an appellate court can review to "determine whether there was reversible error in excluding the [testimony]." ' But ' "merely telling the court of the content of * * * proposed testimony" is not an offer of proof.' Instead, the proponent must `describe the evidence and what it tends to show and * * * identify the grounds for admitting the evidence.' Where both proper and improper purposes for proffered evidence exist, the offer of proof must rule out the improper purposes because the trial judge is not required to 'imagine some admissible purpose.' Finally, Rule 103 does not require any specific form for offers of proof. Instead the trial judge has discretion to shape the manner and form of the offer of proof. We agree the district court did not err in excluding the evidence. While given ample opportunity, Silver Mountain failed to make an adequate offer of proof concerning the content and admissibility of the August 2005 cell phone payment, so plain error review governs." Perkins v. Silver Mt. Sports Club & Spa, LLC, 557 F.3d 1141, 1147-49 (10th Cir.2009) (citations omitted). R104 The most common example of a situation of "conditional relevancy" is authentication or identification. The authentication of a document or an item of real evidence requires evidence sufficient to support a jury finding that the offered item is what its proponent claims. The function of the judge is merely to determine whether a prima facie case has been presented, not to decide the actual issue of genuineness. This traditional doctrine is codified not only in Rule 104(b), but also in Rule 901(a). Ricketts v. City of Hartford, 74 F.3d 1397, 1409-11 (2d Cir.1996). Example—Admissible. "The district court's determination that it 'was not satisfied that the voice on the tape was that of Davis' * * * is inconsistent with these principles. So long as a jury is entitled to reach a contrary conclusion, it must be given the opportunity to do so. * * * [Title district court erred in excluding the tape on authentication grounds without making a finding that no rational juror could have concluded that Davis made the statement at issue." Ricketts v. City of Hartford, supra, 74 F.3d at 1411. Professor John Barkai, U.H. Law School Page - 14 EVIDENCE IRRELEVANT UNDER RULE 401 From, Hawaii Revised Statutes State v. Ortiz, 93 Haw. 399 (2000) (events occurring after prison escape were not relevant to prove that the escape was the product of duress). State v. Moore, 82 Haw.202, 921 P.2d 122 (1996) (gunshot victim's statement to police were erroneously admitted to reflect her state of mind because victim's “emotional and mental condition were not facts of consequence to the determination of Moore's guilt.”) State v. Fukusaku, 85 Haw. 462 (1997) (defendant's use of homicide victim's credit card, months before the killing, offered to prove lack of finances and motive to kill for nonpayment of debt, was not relevant). Kealoha v. County of Hawaii, 74 Haw. 308 (1993) (because motorcyclists have no duty to wear helmets in Hawaii, evidence that plaintiff did not wear a helmet was not admissible to reduce damages). State v. Sanchez, 82 Haw. 517 (1996) (defendant's inmate status and violation of four-hour job search pass were not relevant to prove intent in terroristic threatening cases). Expert medical testimony that “permanent, serious disfigurement” would have resulted absent medical attention irrelevant where that result was an element of the charged offense. State v. Malufau, 80 H. 126, 906 P.2d 612 (1995). Trial court did not err in ruling that evidence of motorcyclist's nonuse of helmet was not relevant under this rule, and thus, not admissible under rule 402. Kealoha v. County of Hawaii, 74 H. 308, 844 P.2d 670 (1993). Evidence that victim had $2,300 in cash on person after the shooting irrelevant where fact of consequence was defendant's state of mind at the time of shooting and reasonableness of that state of mind. State v. Kupihea, 80 H. 307, 909 P.2d 1122 (1996). Defendant's failure to proclaim defendant's innocence to cellmate was irrelevant under this rule and, thus, not admissible by virtue of rule 402. State v. McCrory, 104 H. 203, 87 P.3d 275 (2004). Testimony by defendant's cellmate that defendant desired a reduction of the murder charge to manslaughter was irrelevant under this rule under the circumstances of the case; defendant's reference to a reduction of the charges against defendant did not make the existence of any fact regarding whether defendant committed the murder “more or less probable than it would be without” this testimony. State v. McCrory, 104 H. 203, 87 P.3d 275 (2004). The fact that defendant purchased bras for daughter and complaining witness and the allegation that the girls had been sitting at table in their underwear “a couple of days” before the incident were not relevant to any of the events which occurred on date of incident, where, inter alia, the purchase of bras by defendant would not tend to make more probable any fact relating to the elements of sexual contact by defendant. State v. Toro, 77 H. 340, 884 P.2d 403 (1994). Professor John Barkai, U.H. Law School Page - 15 EVIDENCE IRRELEVANT UNDER RULE 401 From, Courtroom Evidence Handbook by Steven Goode & Olin Guy Welborn (2006-2007) Fact of consequence is determined by substantive law. “Whether a proposition is of consequence to the determination of the action is a question that is governed by the substantive law.” United States v. Hall, 653 F.2d 1002, 1005 (5th Cir. 1981). Example - Inadmissible. “Long’s out-of-court statements are probative of why Deputy Needham went to the mobile home. However, his reasons for going there are not of consequence to the determination of the action, i.e., they do not bear on any issue involving the elements of the charged offense.” United States v. Dean, 980 F.2d 1286, 1288 (9th Cir. 1992). Example - Inadmissible. In a prosecution for throwing blood and ashes on the walls of the Pentagon, evidence that United States nuclear weapons policies violate international law was properly excluded. United States v. Cassidy, 616 F.2d 101 (4th Cir. 1979). Example - Inadmissible. In a prosecution for making false statements on a tax return, evidence offered by taxpayer that he actually overpaid his taxes by failure to take permissible deductions was properly excluded. United States v. Johnson, 558 F.2d 744 (5th Cir. 1977). Example - Inadmissible. Since the issue in an insurance bad faith case is whether the company had a reasonable basis for denying the claim, the company’s subsequent litigation tactics and strategy are seldom relevant. Timberlake Construction Co. v. U.S. Fidelity & Guaranty Co., 71 F.3d 335, 340-41 (10th Cir. 1995). Example - Inadmissible. “The fact of consequence in this case was whether Hawkins possessed the gun, and the ammunition found in the upper unit has nothing to do with possession. While the ammunition may be relevant to probing ownership of the gun, owner ship is not relevant to the offense in question.” United States v. Hawkins, 215 F.3d 858 (8th Cir.2000). Professor John Barkai, U.H. Law School Page - 16 Practice Case A - Civil THE NUMBERING OF PROBLEMS IN MY HANDOUTS Numbered problems with an “A” or “B” (e.g. 1A) refer to Practice Cases A and B, whose general facts appear on this and the next page. “A” is a civil case, “Look Before You Wheely” and “B” is a criminal case called “A Night at the Ace Bar and Grill.” Numbered problems without an A or B use different facts. “LOOK BEFORE YOU WHEELY” Robert Jones, an employee of the Owens Construction Co., while driving a company car and accompanied by his secretary, Mary Jackson, was involved in an accident with a bicycle ridden by Billy Boy Green and a truck driven by Sam Smith. Sam Smith was accompanied by his two children, Sally Smith and Harry Smith. The accident occurred at the corner of First and Main at 4:30 p.m. on October 26. First is a north-south street while Main runs east-west. Both First and Main are four-lane roads. Sam Smith was driving his truck west on Main, approaching the intersection of Main and First. Robert Jones was approaching the same intersection in his company car heading east on Main. When Smith reached the intersection he signaled for a left turn into the westernmost southbound lane of First. At this moment Smith says that Jones was at least 500 feet from the intersection. As Smith proceeded to make his left turn on the yellow light, he states that Billy Boy, age 7, riding a ten-speed bicycle east on the south sidewalk of Main, did a wheely, onto First street. When Sam Smith saw the boy heading in front of him, he says, he hit his brakes. The truck came to a halt with its front bumper about five feet south of the crosswalk. The Smith truck hit Billy Boy, and Billy Boy was thrown onto the hood of the truck. Moments later Robert Jones, who claims to have applied his brakes when he saw Sam Smith's truck heading into the intersection, hit the side of the Smith truck, spinning it around. The boy was thrown off the hood onto the ground. Billy Boy denies that he did a wheely onto the street. He contends that he was walking his bicycle in the crosswalk at the time of the accident. The accident was also observed by Barbara Green, who is Billy Boy's mother, Margaret Boyd, a school crossing guard, and Tim Brown, owner of the Texaco station located at the intersection. Professor John Barkai, U.H. Law School Page - 17 Practice Case B - Criminal “A NIGHT AT THE ACE BAR AND GRILL” July 8 is a warm night in the city. The Ace Bar and Grill, 505 West Delaware Avenue, is packed to the ceiling. It is 10:00 p.m. and Harry and Mike, the owners, are behind the bar. Mabel and Charlie are in a booth. Sheila, a prostitute, is on a bar stool. Pete, a wino, is outside in the back. Albert, a junkie, is in the men's room. At 10:15 Big Ed arrives at the bar. He moves immediately over to the booth where Mabel and Charlie are seated. Charlie gets up. A fight ensues. Big Ed is stabbed. Harry jumps out from behind the bar and hits Charlie over the head with a beer bottle. The police arrive and Charlie, Big Ed and Harry are arrested. Charlie tells the police he acted in self-defense. Big Ed is taken to a hospital in an ambulance. At 11:30 p.m. Albert buys some drugs. At 1:00 a.m. Wayne, an undercover policeman, pulls a bar stool next to Sheila, sits down, and asks her what she's drinking. At 2:00 a.m., two men, Bob and Ray, enter the Ace Bar and Grill. Bob has a pistol. Ray is carrying a shot gun. Bob hands Mike, the bartender, a plastic bag and tells him to empty the cash register. Mike does so. Bob fires a shot from the pistol into the ceiling. Bob and Ray make their escape in a waiting car. At 2:30 a.m., Sheila is arrested for solicitation. At 3:00 a.m., Albert is arrested for possession and sale of cocaine. On July 10, Bob is arrested in his apartment. A search of the apartment reveals the money taken from the Ace Bar and Grill. The pistol used in the robbery is discovered in a garbage can located outside Bob's apartment. Sally, who lives in the apartment with Bob and Ray, is Ray's sister and Bob's girlfriend. Professor John Barkai, U.H. Law School Page - 18 401 RELEVANCY PROBLEMS Discuss whether the following items of evidence are relevant or irrelevant: 1A Testimony that Billy Boy was doing a wheely on the street when he was hit by the truck. 2A Testimony that Billy Boy did a series of wheelies on the sidewalk on the south side of Main Street as he approached the intersection of Main and First. 2.5 Testimony that most of the children Billy Boy's age do a series of wheelies on the sidewalk on the south side of Main Street when they approach the intersection of Main and First. 3A Testimony that Billy Boy was awarded first prize the previous month in a wheely contest. 4A Testimony that Billy Boy's bicycle did not have a rear reflector. 5A Testimony that Sam Smith had driven on Main at 60 mph in a 30 mph zone one mile prior to reaching the intersection of Main and First. 6A Testimony that Robert Jones is covered by $200,000 in automobile liability insurance. 8A Testimony that Tim Brown, who testified at trial, did not have his eyeglasses on when he witnessed the accident. 9A Testimony that Harry Smith and Sally Smith were fighting in the bed of the truck as it approached the intersection. 10B Testimony that Mabel, a witness called by the government, is the living with Big Ed, the complaining witness. 11B Testimony that Harry told Charlie, the criminal defendant, that Big Ed was out to get him. 12 A civil rights case brought by the survivors of Lucien Sherrod, a robbery suspect who was killed by the police. The police officers stopped a car occupied by two suspects and ordered them out of the car at gunpoint. The suspects at first refused to follow police commands to raise their hands. One of the officers testified that Sherrod made a “quick movement with his hand into his coat ...[as if] he was going to reach for a weapon.” At that point, the officer fired his revolver at Sherrod, killing him instantly. The plaintiff wants to introduce evidence that a search of the deceased Sherrod found that he was unarmed. What are the arguments for and against admission? Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988)(en banc). (Park 72). Professor John Barkai, U.H. Law School Page - 19 UNITED STATES v. NORIEGA, 117 F.3d 1206 (1997) KRAVITCH, Senior Circuit Judge: On February 4, 1988, a federal grand jury Following extensive pre-trial proceedings for the Southern District of Florida indicted and a lengthy trial, a jury found Noriega guilty Manuel Antonio Noriega on drug-related of eight counts in the indictment and not guilty charges. At that time, Noriega served as of the remaining two counts. The district commander of the Panamanian Defense court entered judgments of conviction against Forces in the Republic of Panama. [The Noriega upon the jury's verdict and sentenced indictment charged that Noriega had used his him to consecutive imprisonment terms of 20, position of authority to help Columbian drug 15 and five years, respectively.... traffickers smuggle cocaine through Panama [Before trial,] Noriega gave notice of his and into the United States.] Shortly thereafter, intent to use classified information regarding Panama's president, Eric Arturo Delvalle, his intelligence work for the United States to formally discharged Noriega from his military rebut the government's assertion that he had post, but Noriega refused to accept the unexplained wealth. The government dismissal. Panama's legislature then ousted objected to any disclosure of the purposes for Delvalle from power. The United States, which the United States had paid Noriega. In however, continued to acknowledge Delvalle pre-trial proceedings, the government offered as the constitutional leader of Panama. Later, to stipulate that Noriega had received after a disputed presidential election in approximately $320,000 from the United Panama, the United States recognized States Army and the Central Intelligence Guillermo Endara as Panama's legitimate head Agency. Noriega insisted that the actual of state. figure approached $10,000,000, and that he On December 15, 1989, Noriega publicly should be allowed to disclose the tasks he had declared that a state of war existed between performed for the United States. Panama and the United States. Within days of The district court held that information this announcement by Noriega, President about the content of the discrete operations in George Bush directed United States armed which Noriega had engaged in exchange for forces into combat in Panama for the stated the alleged payments was irrelevant to his purposes of “safeguard[ing] American lives, defense. Alternatively, it ruled that the restor [ing] democracy, preserv[ing] the tendency of such evidence to confuse the Panama Canal treaties, and seiz[ing] Noriega issues before the jury substantially to face federal drug charges in the United outweighed any probative value it might have States.” United States v. Noriega, 746 F.Supp. had. The district court's...ruling, however, 1506, 1511 (S.D.Fla.1990). The ensuing left Noriega free to present evidence of the military conflagration resulted in significant fact, amounts, time, source and method of casualties and property loss among conveyance of money he alleged he had Panamanian civilians. Noriega lost his received from the United States. At trial, effective control over Panama during this Noriega declined to submit evidence armed conflict, and he surrendered to United regarding monies he allegedly received from States military officials on January 3, 1990. the United States, because, he now contends, Noriega then was brought to Miami to face the it would not have appeared credible to the pending federal charges. jury absent the excluded details regarding the Professor John Barkai, U.H. Law School Page - 20 actual services he had performed.... Our review leads us to conclude that information regarding the purposes for which the United States previously paid Noriega potentially had some probative value. Specifically, had Noriega testified that he had received $10,000,000 from the United States, and had the government then rebutted that testimony by presenting evidence that it had paid Noriega $320,000, evidence regarding what Noriega did for the United States might have helped the jury determine which of the two payment totals was more credible. To the extent that the proffered evidence on the intelligence operations showed that the United States had engaged Noriega to carry out significant duties, the jury might have inferred that he had received the higher figure, rather than the lower sum. Thus, the district court may have overstated the case when it declared evidence of the purposes for which the United States allegedly paid Noriega wholly irrelevant to his defense. The potential probative value of this material, however, was relatively marginal. Evidence of the purposes for which monies allegedly are given does not aid significantly in the determination of the fact and amount of such purported payments. Further, and more importantly, the district court correctly recognized that the admission of evidence regarding the nature of Noriega's assistance to the United States would have shifted unduly the focus of the trial from allegations of drug trafficking to matters of geo-political intrigue. Accordingly, we cannot conclude that the district court abused its discretion when it determined that the probative value of the proffered material was outweighed substantially by the confusion of issues its admission would have caused. See Fed.R.Evid. 403. ...Noriega's convictions are AFFIRMED, and the district court's order denying Noriega's motion for a new trial is AFFIRMED. Professor John Barkai, U.H. Law School Page - 21 STATE v. KLAFTA R 403 73 Haw. 109, 831 P.2d 512 (1992) Before LUM, C.J., and PADGETT, Heather was found. HAYASHI, WAKATSUKI and MOON, JJ. The State also produced several witnesses PADGETT, Justice writes the opinion who were involved in finding Heather on the steep embankment next to the reservoir, and ... Sometime after noon on Saturday, April 21, observed her condition at that time. Two of 1990, Heather Klafta, an infant, some 16 months these people were police officers, one of whom old, was found lying face-down on the steep recovered maggots from Heather's diaper, put bank of Lake Wilson, dehydrated, dirty, with dirt them in a preservative container and turned in her mouth, numerous bruises, and infested them over to the entomologist who testified. In with maggots which were eating her. When the addition, the State produced another officer who police were able to find out who she probably went over the area the day following, and was, they went to the nearby home of appellant, observed a mongoose some 50 feet from where her mother, to inquire. The divorced father, who Heather was found. was there, informed them that the appellant had The State also produced evidence of Dr. told him that Heather had been taken away by Craig Thomas, the emergency room physician the social services, and the appellant said that who first treated Heather at the Wahiawa Heather had been kidnapped on the previous General Hospital; the testimony of Dr. Thursday, the 19th, by two black men. Frederick Burkle, Jr., the physician who treated It subsequently developed that Heather had Heather at Kapiolani Hospital, when she was in fact been abandoned by the appellant about transferred there following the emergency 2:00 a.m. on April 20th on a dirt mound between treatment at Wahiawa General; and Dr. Goff, an a road and the Wahiawa Reservoir. A entomologist who explained the life cycle of the 6-year-old sister was a witness to the maggots found on Heather and their significance abandonment, and had attempted unsuccessfully with respect to the time frame. to get her mother to go back for the child the In addition, the State produced photographs next day. Appellant told the sister to say that she, of Heather in the condition in which she was appellant, had given the child away to a social found. worker and later told the sister to say that At trial, appellant objected to all of this Heather had been kidnapped. When the testimony as being irrelevant and prejudicial. ex-husband and father of Heather returned to the She also objected to exhibits 8, 9, 10, 11, 15, and Wahiawa apartment of appellant on the evening 16; the testimony of Dr. Thomas; and the of the 20th, appellant told him Heather had been testimony of the neighbors Troutman, Perry, taken away by social services. Although there Villanueva, Casas, and Galban as cumulative, in was a medical opinion that Heather would not addition to being irrelevant and prejudicial. ... have survived another 24 hours, exposed as she The principal trial issue in this case was the was, she recovered, and appellant was appellant's intent in abandoning Heather and subsequently indicted, and ultimately convicted, leaving her abandoned until she was finally for attempted murder in the second degree. found. Framed in the statutory language, did At trial, the State elicited testimony from appellant, by abandoning Heather, intentionally six neighbors who had observed Heather's engage in conduct which was a substantial step physical condition in the days preceding the in a course of conduct intended or known by her abandonment, had observed appellant with to be such as to cause Heather's death. Heather, and some of whom had observed  The evidence of Heather's physical appellant after the abandonment, and before condition in the days immediately preceding the Professor John Barkai, U.H. Law School Page - 22 abandonment, appellant's conduct toward her, testimony with respect to the maggot infestation where and when Heather was found, her of Heather was unduly prejudicial, we again see condition at that time, and the period during no abuse of discretion. Probative evidence which she had been abandoned were all always “prejudices” the party against whom it is evidence which had the tendency to make the offered since it tends to prove the case against existence of the fact of intention to cause that person. Heather's death more probable than it would The jury, in determining the issue of have been without the evidence. Thus, all of that appellant's responsibility, as defined by the evidence was relevant under HRE 401 and statute, was entitled to know Heather's condition admissible under HRE 402. by the persons who found her, by the doctors The question then is whether the judge who then examined her, and by an expert on should have excluded some or all of it because entomology to explain the time-range and how of the danger of unfair prejudice or because it the infestation developed. It is true that the was a needless presentation of cumulative evidence of maggot infestation is revolting to a evidence. person of ordinary sensibilities, but the  As the Commentary to HRE 403 notes, testimony of even one witness as to Heather's we said in State v. Iaukea, 56 Haw. 343, 349, condition, when found, is just as revolting. 537 P.2d 724, 729 (1975): The responsibility for It is possible to conceive of a case where so maintaining the delicate balance between much cumulative evidence is admitted that its probative value and prejudicial effect lies total prejudicial affect demonstrates an abuse of largely within the discretion of the trial court. discretion by the trial judge, but this is not such Dealing first with the claims of error in a case. This is not a situation where the receiving cumulative evidence, that objection prosecution was piling Pelion on Ossa. Rather it was raised with respect to the testimony of Dr. is a case where the prosecution properly painted Thomas, the emergency room physician at a complete picture of Heather when found. As Wahiawa General Hospital to which Heather we have said, the evidence was relevant, and the was taken when found. Presumably, appellant's trial judge's determination that, in the objection is that both he and Dr. Burkle, the circumstances of this case, it was not unduly physician who examined Heather when she was prejudicial was not an abuse of discretion. ... then transferred to Kapiolani Hospital, observed many of the same things. Nevertheless we do WAKATSUKI, Justice, dissenting. not see how Dr. Thomas' testimony could be I respectfully dissent. considered cumulative. The admission of evidence regarding  The cumulative objection was also Heather Klafta's physical condition, specifically made with respect to exhibits 8, 9, 10, 11, 15, the maggot infestation of her vaginal area, was and 16, photographs of Heather's condition needlessly cumulative and highly prejudicial, when she was found. We see no abuse of thereby denying Sharon Klafta a fair trial. discretion in admitting those photographs. Cf. Further, the trial court erroneously excluded Robinson v. State, 342 So.2d 1331 (Ala.1977). testimony of Sharon Klafta's psychiatrist, Dr.  As to the testimony of five of the Cooper, regarding whether or not she possessed neighbors objected to as being cumulative, they the intent to kill at the time of abandonment. each observed many of the same things, but they Under Hawaii Rules of Evidence (HRE) also observed some things which were different Rule 403, “although relevant, evidence may be and, again, we find no abuse of discretion in the excluded if its probative value is substantially admission of their testimony. outweighed by the danger of unfair prejudice, ... As to the contention, strongly urged by or a needless presentation of cumulative appellant, that the photographs, exhibits and evidence.” (Emphasis added.) Professor John Barkai, U.H. Law School Page - 23 The State made its case against Sharon largely repetitive accounts of the maggots in Klafta by presenting evidence, which in the Heather's flesh by the two doctors, Dr. Craig majority's own words was “revolting to a person Thomas and Dr. Frederick Burkle, Jr., who of ordinary sensibilities.” While evidence of treated Heather. Further, each time one of these Heather's physical condition, resulting from the doctors testified the photographs of Heather's environment in which she was abandoned, may maggot eaten vaginal area were passed to the have been relevant to show whether or not her jury. mother intended to kill her by leaving her The unnecessary cumulativeness of this subject to such an environment, any probative evidence also substantially prejudiced Sharon value of the cumulativeness of the same Klafta's right to a fair trial. The majority seems evidence was substantially outweighed by the to rationalize that if the testimony by “even one danger of unfair prejudice. witness as to Heather's condition, when found” The graphic evidence of maggot infestation is “revolting”, then the effect of additional consisted of not just one color photograph, but similar testimony combined with the graphic several, depicting Heather's naked body eaten by color photographs and enlargened pictures from the maggots. State's exhibit 9, [FN1] displayed the slide show, could not have heightened baby Heather Klafta's lying on her back with her prejudice. However, upon repetition the very legs spread open to reveal the vaginal and inner nature of this evidence increases, rather than buttock area filled with open red sores created decreases, the sensitivities of the jurors. by the maggots that burrowed into her flesh. Obviously, this kind of presentation, could have State's exhibit 10 again showed baby Heather easily led the jurors to bypass the inquiry of Klafta lying on her back with her lower vaginal whether or not Sharon Klafta intended to kill her area exposed to reveal the red craters in her flesh child at the time of abandonment by improperly eaten by the maggots. State's exhibit 16 also focusing instead on what actually happened to shows the upper portion of baby Heather's the child as evidence of Sharon's intent to kill. ... vaginal area while she lying down and partly I would reverse the trial court's rulings and turned on her side. remand a new trial. FN1. The defendant also objected to State's exhibit 9 though the majority has not included this exhibit in its discussion. The State continued to offer evidence in this horrific manner with a slide show on the life cycle of a fly, presented by one of its experts. Projected onto a large screen before the jurors were color magnifications of the stages of the fly from a worm-like larva appearance to that of a fully mature fly. These slides also showed up-close the incisor like cutting edges in the mouth of the larva which it uses to burrow. Further, accompanying the slide show, the State introduced two vials of maggots and two slides containing maggots which were recovered from baby Heather Klafta. In addition, the State's evidence regarding the maggot infestation included the detailed and Professor John Barkai, U.H. Law School Page - 24 STATE v. EDWARDS R 401, 403 81 Hawai'i 293, 916 P.2d 703 (1996) [Defendant was convicted in the gruesomeness of the evidence were ground Second Circuit Court, Maui County, of for its exclusion, then it would have to be murder in the second degree, robbery in said that the more gruesome the crime, the the first degree, two counts of sexual greater the difficulty of the prosecution in assault in the first degree, kidnapping, and proving its case. ... In other words, the fact burglary in the first degree. The that a photograph may be considered prosecution introduced photographs of gruesome does not necessarily render the decedent's limbs, sexual parts, face, and photograph inadmissible. See e.g., State v. entire nude body.] Molina, 47 Haw. 391, 390 P.2d 132 (1964) (Although photograph showing the head of In this case, for instance, the the deceased with a twelve-centimeter photographs of the ligature marks on the sutured incision from a craniectomy may decedent's wrists and ankles corroborate be inherently gruesome or shocking, it is the coroner's testimony that the decedent admissible if it aids or clarifies the was bound by her assailant, rendering testimony of a medical witness.). The those photographs probative of the inescapable reality is that “[g]ruesome kidnapping charge. Similarly, and for crimes result in gruesome pictures.” obvious reasons, the photographs of the McCormick v. State, 845 P.2d 896, 898 injuries to decedent's face, sexual parts, (Okl.Crim.App.1993). and her entire body are probative of the charges of murder, robbery, and sexual Each photograph depicts injuries not assault.... visible in the other and are, thus, not *** cumulative. We therefore hold that the The question then narrows to whether trial court did not abuse its discretion in “the probative value [of the photographs admitting the photographs of the was] substantially outweighed by the decedent's sexual parts. danger of unfair prejudice.” ... We *** therefore examine each of the photographs admitted into evidence by the trial court. For the reasons discussed above, we *** hold that: (1) the trial court did not abuse We acknowledge that the photographs its discretion by admitting into evidence of the decedent's [sexual parts] may be photographs of the decedent's body.... We considered gruesome and that the therefore affirm Edwards's convictions. possibility of prejudice exists. However, [t]he possibility of prejudice is in itself insignificant; it is the danger of prejudice substantially outweighing the probative value of the proffered evidence that is determinative. Otherwise, [i]f the mere Professor John Barkai, U.H. Law School Page - 25 KAEO v. DAVIS R 401, 403 68 Haw. 447, 719 P.2d 387 (1986) Guardian of passenger injured when vehicle  Whether Alfred K. Davis operated the struck pole sued city and driver for damages. The errant vehicle while under the influence of First Circuit Court, City and County of Honolulu, intoxicating liquor or not undoubtedly was “an Ronald T.Y. Moon, J., adjudged city and driver important circumstance bearing on the issue of his jointly and severally liable. City appealed, and negligence.” Soriano v. Medina, 648 S.W.2d 426, guardian cross-appealed. The Supreme Court, 428 (Tex.Civ.App.--San Antonio 1983) (citation Nakamura, J., held that: (1) evidence of driver's omitted). “Our laws give a [party] the right to drinking was relevant and material, and its introduce evidence of those relevant and material exclusion was abuse of discretion amounting to facts which logically tend to prove the issues error; (2) exclusion of evidence of prior accidents, involved and which is not otherwise excluded.” when offered for purpose of establishing notice to State v. Smith, 59 Haw. 565, 567-68, 583 P.2d 347, city of potentially dangerous condition was error; 349-50 (1978); see Hawaii Rules of Evidence and (3) city's requested instruction to jury of (Haw.R.Evid.) 401 and 402. “The test of possible legal consequence of its verdict admissibility is not one of absolute proof of an apportioning negligence between city and driver ultimate fact in controversy.” Bonacon v. Wax, 37 as joint tort-feasors including explanation of Haw. 57, 61, reh'g denied, 37 Haw. 106 (1945); operation of doctrine of joint and several liability see also State v. Irebaria, 55 Haw. 353, 356, 519 should have been submitted to jury. P.2d 1246, 1248 (1974). For relevancy is not Judgment vacated; remanded for new trial. “dependent upon the conclusiveness of the testimony offered, but upon its legitimate Before LUM, C.J., and NAKAMURA, tendency to establish a controverted fact.” PADGETT, HAYASHI and WAKATSUKI, JJ. Bonacon v. Wax, 37 Haw. at 61. NAKAMURA, Justice (writes the opinion) [Plaintiff was a passenger in a single-car Here, the trial court ruled out all evidence of accident on a double curved section of 10th drinking by Davis, whatever its source, on grounds Avenue in Palolo Valley. Driver was drinking and that “you need other evidence besides a mere hit a utility pole. Driver was never seen again after consumption of alcohol to bring it into evidence” the accident. At trial the jury found the driver and “in today's society, any indication of 99% liable and the City and County 1% liable. drinking ... and driving can raise undue prejudice The City appealed because it was not allowed against [the driver].” [FN2] We think the to admit the evidence of the driver's drinking. The evidence of drinking and Davis' other conduct had plaintiff cross-appealed claiming error in that it a tendency to establish his negligence as the was not allowed to admit evidence of prior similar proximate cause of the harm that befell the accidents.] plaintiff. II. We begin our consideration of the appeal FN2. The court's oral ruling on this question from the judgment and the cross-appeal by was: addressing the City's claim that the trial court I don't believe that the alleged speeding as committed reversible error in excluding from trial described by Mr. Nakamoto in an area where “testimony, whether live or by deposition, and all the speed limit could be reasonably said to be other evidence from any other source which would 25 miles an hour is evidence of intoxication indicate that Defendant Alfred K. Davis had or being under the influence. I don't believe consumed alcohol prior to the accident in that reaching for cigarettes whether it be on question.” the back seat or on the dash itself is evidence A. of intoxication or being under the influence. I Professor John Barkai, U.H. Law School Page - 26 don't believe that another person saying that FN4. For example, in a pre-trial deposition we were feeling good and not the driver, Miss Kido described Davis as “feeling good” defendant saying that that feeling can be when they left Anna's Lounge. The term is a imputed to the driver and thus being under colloquialism describing the mild euphoria that the influence or intoxicated at that time, the often accompanies the consumption of alcohol. Court finds as a matter of law that the evidence which the City feels corroborates FN5. The trial judge's ruling was influenced, intoxication or being under the influence with we believe, by an offer of proof that Davis showed four beers in three and a half hours before the no outward sign of intoxication at the accident accident does not meet the requirement to scene. But alcohol “also impairs judgment and indicate that you need other evidence besides discrimination. In short, alcohol adversely affects a mere consumption of alcohol to bring it into the ability to perform accurately and reason evidence. clearly.” S. Brent and S. Stiller, Handling Drunk Driving Cases s 4.2, at 51 (1985). Furthermore I feel that in today's society, any indication of studies have indicated that relatively low doses of drinking, no matter what the amount, and alcohol may affect driving performance. See id., driving can raise undue prejudice against that s 4.5; Flanagan, Stride, Rigby, and Lockridge, person who has been said to be quote The Effects of Low Doses of Alcohol on Driving drinking and driving end quote. And so at Performance, 23 Med.Sci.Law 203, 206-08 least in this case I will not permit evidence to (1983). come in on the consumption of alcohol, and Anna's Lounge is dismissed from this lawsuit. B. There will be no reference to Anna's Lounge  The evidence, however, was also deemed because of the inference that may be drawn inadmissible on the ground that “in today's society, that there was drinking without explanation. any indication of drinking, no matter what the amount, and driving can raise undue prejudice “Had the manner in which the [Davis] car against that person who has been said to be was driven been wholly beyond criticism, the fact 'drinking and driving.' “ See supra note 2. of [Davis'] intoxication would have been wholly “Although relevant, evidence may be excluded if irrelevant,” McKenna v. Volkswagenwerk its probative value is substantially outweighed by Aktiengesellschaft, 57 Haw. 460, 467, 558 P.2d the danger of unfair prejudice....” Haw.R.Evid. 1018, 1023 (1977), and the trial court's ruling 403. Unfair prejudice “means an undue tendency would be beyond reproach. But such was not the to suggest decision on an improper basis, case; as the court noted in its oral ruling, there was commonly, though not necessarily, an emotional evidence of speeding and of the driver taking his one.” Advisory Committee's Note to Federal eyes off the road while attempting to round a curve. Rules of Evidence (Fed.R.Evid.) 403. “The See supra note 2. And there was more [FN4] from responsibility for maintaining the delicate balance which a jury could infer “four beers,” though between probative value and prejudicial effect,” insufficient to cause Davis to be intoxicated in a we have said, “lies largely within the discretion of strict penal sense, were “sufficient to impair his the trial court.” State v. Iaukea, 56 Haw. 343, 349, capacity to perceive the dangers with the clarity, 537 P.2d 724, 729 (1975) (citation omitted). make the decisions with the prudence, and operate “Nevertheless, discretion can be abused,” E. the vehicle with the skill and caution required by Cleary, McCormick on Evidence s 185, at 547 (3d law.” Simon v. Commonwealth, 220 Va. 412, ed. 1984), and in this instance we think it was. 419-20, 258 S.E.2d 567, 572-73 (1979). [FN5] Unquestionably, the evidence of drinking was Relevant evidence, as noted above, is not relevant and material. excludable under Haw.R.Evid. 403 unless its probative value is substantially outweighed by the danger of unfair prejudice. “Analyzing and Professor John Barkai, U.H. Law School Page - 27 weighing the pertinent costs and benefits is no Hawaii, Inc., 67 Haw. 219, 686 P.2d 1 (1984); trivial task.... Even the same item of evidence may Warshaw v. Rockresorts, Inc., 57 Haw. 645, 562 fare differently from one case to the next, P.2d 428 (1977). The plaintiff urges the trial depending on the relationship to the other judge's exclusion of accident reports containing evidence in the cases and the importance of the evidence of several prior accidents occurring near issues on which it bears.” Id., at 546 (footnote the site of the mishap in which she suffered omitted). A ruling of inadmissibility premised injuries was error, and we agree. merely upon an impression that “any indication of A. drinking” by a party is fraught with “the danger of Evidence of other accidents may be “highly unfair prejudice” cannot be one that “satisf[ies] probative on material issues of a negligence the cost-benefit calculus” demanded by action.” Simon v. Town of Kennebunkport, 417 Haw.R.Evid. 403. Id. at 548. A.2d 982, 985 (Maine 1980). “[E]vidence of other Granted, the evidence of drinking was similar accidents or occurrences may be relevant prejudicial. Still, evidence with a capacity for circumstantially to show a defective or dangerous unfair prejudice cannot be equated with testimony condition, notice thereof or causation on the simply adverse to the opposing party; for occasion in question.” Id. at 984-85. But “the evidence is only material if it is prejudicial in introduction of other-accident evidence may carry some relevant respect. 1 J. Weinstein and M. with it the problems associated with inquiry into Berger, Evidence P 403 (1985) (citation collateral matters....” Id. at 985. To minimize omitted). We are not willing to assume “any these problems we have cautioned our trial courts indication of drinking” is so unfair to the drinking that: [b]efore evidence of previous ... [accidents] driver that the opposing party must be denied his may be admitted on the issue of whether or not the right to have relevant and material evidence condition as it existed was in fact a dangerous one, considered by the trier of fact. Nor are we willing it must first be shown [by the proponent of the to concede that trial juries, with guidance from the evidence] that the conditions under which the trial court, are incapable of rendering objective alleged previous accidents occurred were the same fact determinations in trials of negligence actions or substantially similar to the one in question. in which drinking is involved. Warshaw v. Rockresorts, Inc., 57 Haw. at 652, 562 The judge's ruling of inadmissibility, it P.2d at 434 (quoting Laird v. T.W. Mather, Inc., appears, was influenced by representations that in 51 Cal.2d 210, 220, 331 P.2d 617, 623 (1958) pre-trial depositions Miss Kido and Samuel Taupo (modifications in original)). But we recognize that testified Davis was sober prior to the accident and “when the purpose of the offered evidence is to the investigating officer detected none of the show notice,” the required similarity in tell-tale signs of drunkenness when he questioned circumstances is considerably less than that Davis at the accident scene. These, however, were demanded when the object is to show a defective matters that could have been offered instead for or dangerous condition or causation, “since all that assessment by the trier of fact along with the is required here is that the previous ... [accident] evidence of drinking by the driver. The trial should be such as to attract the defendant's judge's decision not to permit the jury to hear such attention to the dangerous situation which resulted evidence was an abuse of discretion amounting to in the litigated accident.” Id. error, and we cannot say it had no effect upon the Yet “even when sufficient similarity is shown, outcome of the trial. Since our conclusion the admission of evidence of prior similar compels a retrial of the action, we proceed to the accidents is [still] within the discretion of a trial issue raised by the plaintiff in her cross-appeal. court.” Id. (citations omitted). The evidence, of III. course, “may be excluded if the danger of unfair The issue is whether evidence of other surprise, prejudice, confusion of the issues or the accidents is admissible in the trial of a negligence consideration of undue consumption of time is action, one we have encountered before. See disproportionate to [its] value.” Id. at 652, 562 American Broadcasting Cos. v. Kenai Air of P.2d at 434 (citations omitted); see Haw.R.Evid. Professor John Barkai, U.H. Law School Page - 28 403. since the reports were prepared by officers of the B. Honolulu Police Department. Nor can we say its  The plaintiff offered the evidence of admission would have caused confusion of the prior accidents, consisting of four accident reports, issues, for the jury could have been properly to show the existence of a dangerous condition, instructed that the reports were admitted for the the City's knowledge of the condition, and as a limited purpose of showing notice. See foundation for testimony by her expert witness. Haw.R.Evid. 105; Low v. Honolulu Rapid Transit The purpose for which the evidence is offered “is Co., 50 Haw. 582, 585- 86, 445 P.2d 372, 376 important in determining whether the proof will be (1968). And we see no reason why the admitted and how strictly the requirement of introduction of the evidence would have similarity of conditions will be applied.” E. consumed an inordinate amount of time. Cleary, supra, s 200, at 587 (footnotes omitted). ... The evidence may be inadmissible for one purpose The judgment is vacated, and the case is yet admissible for another; as we have seen, “[t]he remanded for a new trial. strictness of [the] requirement of similarity of conditions is 'much relaxed, however, when the purpose of the offered evidence is to show notice....' “ Warshaw v. Rockresorts, Inc., 57 Haw. at 652, 562 P.2d at 434 (quoting Laird v. T.W. Mather, Inc., 51 Cal.2d 210, 220, 331 P.2d 617, 623 (1958)). From an examination of what was proffered, we are not convinced that it met the test of admissibility to establish the existence of a dangerous condition or causation. A perusal of the police reports of four prior accidents offered as evidence reveals the accidents happened over a span of six years and at spots in the double-curved section of the road in the proximity of but not at the very site of the accident in question. The record also indicates there were subsequent modifications of roadway signs and markers along that section of the road. Since it was incumbent upon the proponent of the evidence to show “that the conditions [of] the alleged previous accidents were the same or substantially similar to the one in question,” Warshaw v. Rockresorts, Inc., 57 Haw. at 652, 562 P.2d at 434, we cannot say it was error for the trial judge not to admit the evidence for purposes of proving the existence of a dangerous condition or causation. But we think the proffered evidence met the “much relaxed” standard applicable when admission is sought on the ground that the prior accidents should have attracted the City's attention to a potentially dangerous condition. Moreover, the introduction of this evidence would not have resulted in unfair surprise or prejudice to the City Professor John Barkai, U.H. Law School Page - 29 EVIDENCE IRRELEVANT UNDER RULE 403 From, Hawaii Revised Statutes Trial court erred in excluding, as cumulative under this rule, the playing of the 911 tape, as defendant had the right to have the jury hear the best evidence of the complainant's demeanor -- the 911 tape -- and not rely on the opinions of other witnesses as to complainant's demeanor. State v. Marcos, 106 H. 116, 102 P.3d 360 (2004). Where seller's settlement offer did not contain any disclaimer of liability or releases from further claims against seller or broker, jury could have interpreted offer, despite cautionary instruction, as an admission of liability by seller; offer thus properly excluded. 84 H. 162 (App.), 931 P.2d 604. Where court failed to view otherwise relevant videotape before definitively ruling on its admissibility, exclusion of tape was abuse of discretion. Tabieros v. Clark Equipment Co., 85 H. 336, 944 P.2d 1279 (1997). Trial court did not abuse its discretion in refusing to admit evidence that motorcyclist did not have motorcycle license at time of accident. Kealoha v. County of Hawaii, 74 H. 308, 844 P.2d 670 (1993). From, Courtroom Evidence Handbook by Steven Goode & Olin Guy Welborn (2006-2007) “Unfair prejudice.” Rule 403 “does not offer protection against evidence that is merely prejudicial, in the sense of being detrimental to a party’s case. Rather, the rule only protects against evidence that is unfairly prejudicial. Evidence is unfairly prejudicial only if it has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Advisory Committee’s Note, F.R.Evid. 403. It is unfairly prejudicial if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case. ” Carter v. Hewitt, 617 F.2d 961, 972 (3rd Cir. 1980). Accord, Old Chief v. United States, 519 U.S. 172, 180. Evidence presenting dangers of unfair prejudice can often be dealt with by compromise on the part of the trial court. Example. In sexual harassment case, victim wanted to testify that she had heard that alleged harasser had severely beaten and injured his wife, to show why she so feared him. Trial court forbade account of the specifics but allowed her to testify that she had heard “something” that increased her fear. Held affirmed. “The compromise reached by the district court was a perfect example of a reasonable call that is not an abuse of discretion.” Gray v. Genlyte Group, Inc., 289 F.3d 128, 139 (1st Cir. 2002) Professor John Barkai, U.H. Law School Page - 30 “Confusion of the issues.” Evidence may be excluded as confusing the issues if it would tend to distract the jury from the proper issues. Example -Inadmissible. Criminal conviction of co-worker for state misdemeanor of “accosting” was properly excluded in sexual harassment case because of danger of confusion. The statute was applicable to conduct that would fall short of sexual harassment. Gray v. Genlyte Group. Inc., 289 F.3d 128, 140 (1st Cir. 2002). Example - Inadmissible. “Military specifications [for forklifts] would appear to carry the imprimatur of government sanction, and might therefore resemble in the jury’s mind something akin to actual regulations might have been put at issue by introducing the specifications themselves, resulting in confusion of the issues for the jury as well as in an unnecessary waste of the courts time.” McEuin v. Crown Equipment Corp., 328 F.3d 1028, 1034 (9th Cir. 2003). Example - Inadmissible. “The videotape improperly focused attention on what took place in International Falls on September 9, 1989 instead of what was actually said at the October 24, 1991 meeting in McGehee, Arkansas.” BE & K Construction CO. v. United Brotherhood of Carpenters & Joiners, 90 F.3d 1028, 1034 (9th Cir. 2003). Example - Inadmissible. Evidence that bank recovered its investment confused issue of intent to defraud. United States v. Tidwell, 559 F.2d 262, 266 (5th Cir. 1977). Example - Inadmissible. “The introduction of evidence about subsequent changes in the product or its design threatens to confuse the jury by diverting its attention from whether the product was defective at the relevant time to what was done later.” Grenada Steel Indus. v. Alabama Oxygen Co., 695 F.2d 883, 888 (5th Cir. 1983). “Misleading the jury.” Cases invoking the danger of misleading the jury often refer to the possibility that the jury might attach undue weight to the evidence. Example - Inadmissible. Government report on safety of tire excluded under Rule 403 because the “jury may have been influenced by the official character of the report to afford it greater weight than it was worth.” Bright v. Firestone Tire & Rubber Co., 756 F.2d 19, 23 (6th Cir. 1984). Example - Inadmissible. Doctors’ testimony regarding defendant’s impaired judgment was relevant to his state of mind in fraud prosecution but relevancy was outweighed by danger jury would be misled into thinking that the condition amounted to temporary insanity or ameliorated the offense. United States v. Schneider, 111 F.3d 197, 203 (1st Cir. 1997). Example -Inadmissible. Probable cause determination by EEOC. “A strong argument can be made that a jury would attach undue weight to this type of agency determination, viewing it as a finding of discrimination as the plaintiff himself suggests it should be viewed rather than as a mere finding of probable cause.” Williams v. Nashville Network, 132 F.3d 1123, 1129 (6th Cir. 1997). Professor John Barkai, U.H. Law School Page - 31 Example - Inadmissible. “There is also the danger that the jury may overvalue polygraph results as an indicator of truthfulness because of the polygraph’s scientific nature.” United States v. Call, 129 F.3d 1402, 1406 (10th Cir. 1997). Example - Inadmissible. Findings in a sanctions order from a previous trial. “A lay jury is quite likely to give special weight to judicial findings merely because they are judicial findings.” Faigin v. Kelly, 184 F.3d 67, 80 (1st Cir. 1999). Demonstrative evidence may be excluded as misleading if it distorts or misrepresents underlying evidence. Example - Inadmissible. In copyright infringement action against singer-composer Michael Jackson, trial court properly excluded plaintiff’s demonstrative tapes designed to compare plaintiff’s song “Dangerous” with defendant song of the same title; the tapes altered the tempo, changed the key, repeated musical phrases not repeated in the originals and spiced together portions not adjacent in the originals; “the changes made to the songs in these recordings were so significant that the tapes no longer represented the songs in question.” Cartier v. Jackson, 59 F.3d 1046, 1049 (10th Cir. 1995). “Undue delay, waste of time, or needless presentation of cumulative evidence.” “As a general rule, evidence may not be excluded solely to avoid delay. * * * Under Rule 403, the court should consider the probative value of the proffered evidence and balance it against the harm of delay.” General Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1509-10 (9th Cir. 1995). Evidence may be excluded on account of waste of time because it has scant probative value. Sztathos v. Bowden, 728 F.2d 15, 19 (1st Cir. 1984). “In the normal evidentiary sense cumulative evidence is excluded because it is repetitious.” International Minerals & Resources, S.A. v. Pappas, 96 F.3d 586, 596 (2nd Cir. 1996). Example - Inadmissible. “[E]vidence of the prior judgment was cumulative, because the Government had earlier introduced seven documents from Bejar’s earlier deportation that would strongly tend to prove that he was an alien.” United States v. Bejar-Matrecios, 618 F.2d 81, 84 (9th Cir. 1980). Professor John Barkai, U.H. Law School Page - 32 OLD CHIEF v. UNITED STATES 519 U.S. 172 (1997) SOUTER, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and THOMAS, JJ., joined. Subject to certain limitations, 18 U.S.C. § 922(g)(1) prohibits possession of a firearm by anyone with a prior felony conviction, which the government can prove by introducing a record of judgment or similar evidence identifying the previous offense. Fearing prejudice if the jury learns the nature of the earlier crime, defendants sometimes seek to avoid such an informative disclosure by offering to concede the fact of the prior conviction. The issue here is whether a district court abuses its discretion if it spurns such an offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction. We hold that it does. In 1993, petitioner, Old Chief, was arrested after a fracas involving at least one gunshot. The ensuing federal charges included [possession of a firearm by a convicted felon]....The earlier crime charged in the indictment against Old Chief was assault causing serious bodily injury. Before trial, he moved for an order requiring the government “to refrain from mentioning...the prior criminal convictions of the Defendant, except to state that the Defendant has been convicted of a crime punishable by imprisonment exceeding one (1) year.” ... The Assistant United States Attorney refused to join in a stipulation, insisting on his right to prove his case his own way, and the District Court agreed... We granted Old Chief's petition for writ of certiorari because the Courts of Appeals have divided sharply ...As a threshold matter, [the nature of the prior convcition is relevant]. A documentary record of the conviction for that named offense was thus relevant evidence in making Old Chief's § 922(g)(1) status more probable than it would have been without the evidence. .... The principal issue is the scope of a trial judge's discretion under Rule 403,...The term “unfair prejudice,” as to a criminal defendant, speaks to...undue tendency to suggest decision on an improper basis.... Advisory Committee's Notes on Fed. Rule Evid. 403... Such improper grounds certainly include the one that Old Chief points to here: generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged....There is, accordingly, no question that propensity would be an “improper basis” for conviction....[W]hen a court considers “whether to exclude on grounds of unfair prejudice,” the “availability of other means of proof may ... be an appropriate factor.” Advisory Committee's Notes on Fed. Rule Evid. 403.... Professor John Barkai, U.H. Law School Page - 33 ....Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious, and Old Chief sensibly worried that the prejudicial effect of his prior assault conviction, significant enough with respect to the current gun charges alone, would take on added weight from the related assault charge against him. ....In arguing that the stipulation or admission would not have carried equivalent value, the Government invokes the familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it.... This is unquestionably true as a general matter. The “fair and legitimate weight” of conventional evidence showing individual thoughts and acts amounting to a crime reflects the fact that making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness.... This recognition that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.... ....In this case,.. the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available. .... The judgment is reversed, and the case is remanded to the Ninth Circuit for further proceedings consistent with this opinion. Professor John Barkai, U.H. Law School Page - 34 STATE v. McNEELY, 8 P.3d 212 (Or.2000) VAN HOOMISSEN, J. [Defendant McNeely was convicted of aggravated murder. A fellow jail inmate, THompson, testified at trial about statement McNeely mad made to him.] Defendant contends...that the trial court erred in denying his motion to exclude Thompson's testimony, because Thompson was unable to identify defendant at trial as the man with whom he had spoken in jail....The state responds that Thompson's testimony was “conditionally relevant,” citing [Oregon Evidence Code] 104, and, thus, was properly admitted. Defendant's assignment of error presents a question of conditional relevancy....When dealing with a matter of conditional relevancy under OEC 104(2), the judge determines whether the foundation evidence is sufficient for the jury reasonably to find that the condition on which relevance depends has been fulfilled. If so, the evidence is admitted; if not, the evidence is not admitted. After the judge decides that the foundation evidence is sufficient for the jury reasonably to find the contested fact under OEC 104(2), either party may introduce evidence before the jury that is relevant to the weight and credibility of the evidence. At trial, Thompson testified that he had spoken with a man in jail who had admitted choking and killing the victim. If defendant were that man, then Thompson's testimony was relevant evidence. There also was evidence at trial that Thompson and defendant had met in jail in 1993. Thompson testified: “I spoke to somebody that represented himself as being [defendant] or was represented by somebody else as being [defendant].” Thompson related several incriminating conversations that he had had with that man. Moreover, there also was evidence that defendant had gained 25 pounds and had shaved off his moustache since the time when he and Thompson were in jail together. Despite Thompson's inability to identify defendant at trial, the trial court determined that a reasonable juror could find that defendant was the person with whom Thompson had spoken in jail. The record supports that conclusion. We agree with the trial court. Thompson's inability to identify defendant at trial went to the weight the jury might give to his testimony, not to its admissibility. It follows that the trial court did not err in leaving the matter to the jury. Professor John Barkai, U.H. Law School Page - 35 403 EXCLUSION OF RELEVANT EVIDENCE PROBLEMS State the ground or grounds for possible exclusion under Rule 403 and decide whether the evidence should be admitted or excluded. 1A Testimony that Robert Jones had earlier that morning reserved a room at a nearby motel for 4:00 p.m. 2A Testimony that Sam Smith had two beers at 1:00 p.m. 3A Testimony by four witnesses that Billy Boy won first prize at his school's wheely contest. 4A Three color photographs are offered showing Billy Boy lying on the ground next to the truck. Two color photographs are offered depicting Billy Boy's damaged bicycle. One photograph is offered showing Billy Boy in traction in the hospital. The defendants object to the introduction of all the photographs. They agree to stipulate that Billy Boy was struck by the truck and that his left leg was broken. 5B Evidence is offered at Sheila's trial for solicitation that she was previously arrested five times and convicted twice for solicitation. 6B At Sheila's trial, the prosecution wishes to introduce evidence that Sheila has two children and that Sheila has never been married. 7 In a rape prosecution, evidence is offered that the accused possessed one-half of an undated admission ticket to a motion picture theater showing only X-rated films. 8 The perpetrator of a bank robbery in New York was identified as having worn a blue and white jacket bearing the New York Yankees insignia. The accused was wearing such a jacket when she was arrested ten days after the robbery. The manufacturer of the jacket will testify that over 20,000 Yankee jackets were sold in New York during the last twelve months. 9 Suppose the prosecution in a murder case wishes to demonstrate motive by proving that the victim had assaulted the defendant's cousin. Defense counsel objects on grounds of relevance. How should the judge rule? Does it matter whether the judge believes (a) that the defendant knew about the assault, or (b) that the jury could reasonably conclude the defendant knew about the assault? (SKL-CH2). Professor John Barkai, U.H. Law School Page - 36 COMPETENCE Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook Courts have found R605 to be applicable: - Where the judge, in a suppression hearing, relied on his personal knowledge about the location of stop signs and speed limits. - Where the judge's comments about a witness's credibility, made during a suppression hearing, are read into evidence at trial. United States v. Blanchard, 542 F.3d 1133, 1144-49 (7th Cir. 2008). R606 - Inquiry into validity of verdict or indictment—Illustrative cases. Examples of the type of juror testimony and affidavits rendered inadmissible by Rule 606(b) include: Evidence regarding a juror's mental competency or fitness. E.g., Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed2d 90 (1987) (jurors consumed alcohol, marijuana and cocaine during the trial). That the jury reached a decision on an inappropriate basis. E.g., Multiflex, Inc. v. Samuel Moore & Co., 709 F.2d 980 (5th Cir.1983) (quotient verdict), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80 L.Ed.2d 126 (1984). That the jury misunderstood the jury instructions. E.g., United States v. Wickersham, 29 F.3d 191, 194 (5th Cir.1994). That jurors intimidated one another by screaming, name calling, obscene language and throwing chairs. Jacobson v. Henderson, 765 F.2d 12, 14 -15 (2d Cir.1985). That the jury considered defendant's failure to testify United States v. Kelley, 461 F.3d 817, 831-32 (6th Cir. 2006) (citing cases); United States v. Rutherford, 371 F.3d 634, 640 (9th Cir.2004). That one or more jurors expressed racial bias during deliberations. United States v. Benally, 546 st F,3d 1230, 1234-36 (10th Cir. 2008). But cf. United States v. Villar, 586 F.3d 76 (1 Cir. 2009) (agreeing that Rule 606(b) bars inquiry into juror's expressions of racial bias, but holding that Fifth and Sixth Amendments may mandate such an inquiry). Exception—Extraneous prejudicial information and outside influence. Rule 606(b) creates an exception that allows jurors to testify (or submit affidavits) that they were exposed to "extraneous prejudicial information" or that an "outside influence" was improperly brought to bear upon them. Although courts often fail to distinguish carefully between these two categories, "extraneous prejudicial information" generally refers to information about the case not admitted into evi dence, Hard v. Burlington Northern R.R., 812 F.2d 482, 486 (9th Cir.1987), while "outside influence" denotes improper exposure to third parties. United States v. Jones, 132 F.3d 232, 245 (5th Cir.1998), affd, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Thus, courts have received evidence that a juror: Consulted books or newspapers. E.g., Oliver v. Quarterman, 541 F.3d 329, 33640 (5th Cir. 2008) (Bible), 129 S.Ct. 1985, 173 L.Ed.2d 1084 (2009); United States v. Siegelman, 561 F.3d 1215, 1237-42 (11th Cir. 2009) (information on the Internet, superseded indictment); United States v. Bagnariol, 665 F.2d 877, 883-85 (9th Cir.1981) (business publications), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Conducted an experiment or investigation. E.g., In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983). Professor John Barkai, U.H. Law School Page - 37 STATE v. KELEKOLIO 74 Haw. 479, 849 P.2d 58 (1993) [Defendant was convicted of sexual assault in (Emphasis added.) second degree and kidnapping. Vacated and The DPA then began her direct examination of remanded.] the complainant. The complainant was unable to identify Kelekolio, who was present in the ... Kelekolio, a “Handi-van” driver, allegedly courtroom. She told the DPA that she was “very kidnapped his lone passenger (“the complainant”), scared.” The complainant eventually testified that drove the van he was operating into a parking lot, Kelekolio had forced her to the back of the and sexually assaulted her. The complainant, who Handi-van, penetrated her vagina with his penis, suffers from Down's Syndrome, is a mentally instructed her not to tell anyone, and drove her to retarded woman and functions at the cognitive work at the Helemano Plantation. On level of a four- to seven-year-old child. cross-examination, she was unable to explain the meaning of “kidnapping” and “rape”--words that During the prosecution's case in chief, James she had utilized in her testimony. Lomont, Ph.D (Lomont), a clinical psychologist Agmata failed to object at any time to the who had previously examined the complainant, complainant's competence to testify, and the trial was called to testify. Lomont opined that the court did not engage in an independent inquiry to complainant had an intelligence quotient (IQ) of establish competence. 43 and operated at the cognitive level of a four-to seven-year-old person. On cross-examination, C. The Complainant's Competency to Testify Lomont expressed opinions that the complainant  As an additional point of error on appeal, was intellectually capable of fantasizing, changing Kelekolio alleges that Agmata was ineffective for facts to avoid punishment, and augmenting and failing to move for a hearing to determine the omitting facts regarding an event she had complainant's competency to testify at trial on the experienced. ground that “there was clearly an issue as to The prosecution later called the complainant as whether [she] understood the duty to tell the a witness. Having established her diminished truth ... and was thus competent to testify under level of cognitive functioning through Lomont, the HRE 603.1.” ... DPA endeavored to lay a foundation for the Notwithstanding the foregoing and for the complainant's competency to testify via the reasons set forth below, we believe that the trial following exchange: court, sua sponte, should have conducted a competency hearing prior to exposing the Q. [By the DPA:] [Complainant], is telling the complainant's substantive testimony to the truth good or bad? A. [By the complainant:] Good. jury-- regardless of the trial tactics of the Q. Is telling a lie good or bad? Is telling a lie good parties--and that it was plain error for the court to or bad? A. Good. Q. Okay. [Complainant], do you have failed to do so. know you're testifying in court today. You know We begin our analysis with the dual you're talking to everybody here today, right? You propositions that “[e]very person is competent to have to tell the truth, okay. You understand that? be a witness except as otherwise provided in [the A. (Witness shakes head.) Q. You have to answer, HRE],” HRE 601, and that “[a] person is yes or no. You cannot nod your head, because this disqualified to be a witness if [s]he is ... incapable man that's sitting right here has to take down of understanding the duty of a witness to tell the everything that you say, okay. You know that you truth,” HRE 603.1. Not surprisingly, HRE 603.1 have to tell the truth today, [Complainant]? A. Yes. is “primarily applicable to youthful and mentally Professor John Barkai, U.H. Law School Page - 38 infirm witnesses.” Bowman, The Hawaii Rules of particular way. Thus, level of suggestibility is an Evidence, 2 U.Haw.L.Rev. 431, 453 (1981). In important factor. Particular kinds of testimony this regard, the commentary on HRE 603.1 (1985) may require further specific competencies. Most indicates that the rule was intended to codify notably, testimony by children on sexual abuse Hawaii's common law: The intent of this rule ... is may require verification of the child's to ... require disqualification of witnesses whose comprehension of the meaning of sexual terms incapacity ... to understand the truthtelling and behavior. Melton, Children's Competency to obligation renders their testimony valueless. Testify, 5 Law & Human Behavior 73, 75 (1981). Under this rule the competency of a witness is a Melton's article summarizes the psychological matter for determination by the court.... This rule research on memory, cognition, moral generally restates existing Hawaii law ... [and development, and suggestibility of children. He reflects] a liberalization of the competency concludes that “the available research in sum standard for children. In Republic v. Ah Wong, 10 suggests that liberal use of children's testimony is Haw. 524, 525 (1896), the court said: “There is no well founded.” Id. at 81. The best approach in precise age within which children are excluded borderline cases is to admit the testimony, rely on from testifying. Their competency is to be adversary presentation and cross- examination, determined, not by their age, but by the degree of and exercise judicial control in testing the their knowledge and understanding.” In Territory sufficiency of the evidence. Hawaii Rules of v. Titcomb, 34 Haw. 499, 502 (1938), the court Evidence Manual s 603.1-2A, at 214 (emphasis announced that “the proper test must always be, added). does the lunatic understand what he is saying, and The relevant legislative history “makes clear does he understand the obligation of an oath? ... [that] [R]ule 603.1 is not a discretionary [I]f he can understand the test proposed, the jury disqualification.” Hawaii Rules of Evidence must determine all the rest.” Rule 603.1 is Manual s 603.1-2, at 213; see also HRE 104(a) consistent with the Ah Wong and Titcomb (1985) (“Preliminary questions concerning the decisions. (Emphasis added.) qualification of a person to be a witness ... shall be In light of the uncontroverted testimony that the determined by the court....”) (emphasis added). complainant functions at the cognitive level of a And “the legislative intent and the language of the four- to seven-year-old child, Professor Bowman's rule contemplate a single “right/wrong” review observations regarding “factors peculiar to young standard....” Hawaii Rules of Evidence Manual, s children” are particularly enlightening: There is ... 603.1-2B, at 215. Rule 603.1 disqualifies anyone a necessity that the child have cognitive skills incapable of expressing himself or unable to tell adequate to comprehend the event he or she the truth from being a witness. The language of witnessed and to communicate memories of the S.B. No. 1827-80, S.D. 1, H.D. 1 made it event in response to questions at trial. If a child's discretionary upon the court to qualify or view of the truth bears little resemblance to reality, disqualify a witness for such reasons. We have it will also have little value to the trier of fact. concluded that the mandatory language previously Thus, competency to testify implies some measure found in S.B. No. 1827-80, S.D. 1 is more of competency at the time of the event witnessed appropriate. By such reversion in language, it is as well as at the time of the trial. The child must the intent that when the question is properly be able to organize the experience cognitively and appealed, the appellate court should review the to differentiate it from his or her other thoughts record to determine whether the trial court has and fantasies. Furthermore, the child must be able erred in its determination and that the question so to maintain these skills under psychological stress raised on appeal should not be determined based and under pressure, real or perceived, from adult on whether the trial court had abused its discretion. authority figures to shape his or her responses in a It was concluded that a witness is either qualified Professor John Barkai, U.H. Law School Page - 39 or disqualified, and it is not a matter of degrees. The question thus arises as to whether the trial Sen.Conf.Comm.Rep. No. 80-80, in 1980 Senate court's plain error was harmless. In order to Journal, at 996 (emphasis added). We therefore answer in the affirmative, we would have to review the trial court's failure in the present case to conclude beyond a reasonable doubt that conduct a competency hearing as to the Kelekolio's inculpatory statements were such that complainant, pursuant to HRE 603.1, under the the complainant's testimony could not have “right/wrong” standard. affected the jury's verdicts. See Russo, 67 Haw. at 138-39, 681 P.2d at 562-63. Inasmuch as, In the present case, the trial court either made standing alone, the jury may have given little no finding of competency or adjudged the weight and effect to Kelekolio's inculpatory complainant to be competent sub silentio. statements (the only other direct evidence of his However, our de novo review of the record guilt) in light of the totality of the circumstances persuades us that there was an inadequate showing under which they were obtained, we cannot. of competency for the following reasons: (1) III. CONCLUSION when asked whether lying was good or bad, the Because we hold that the trial court committed complainant responded, “Good”; (2) the plain error in failing to make an express complainant was unable to identify Kelekolio, determination of the complainant's competence to who was present in court, although she repeatedly testify, and because we are not convinced beyond referred to him in her testimony by name; and (3) a reasonable doubt that the error was harmless, we the complainant did not appear to understand the vacate Kelekolio's convictions and remand for a meaning of particular sexual and other terms (i.e., new trial. “ rape” and “kidnap”) that she employed in her testimony. We recognize that it is by no means certain that a competency determination by the trial court, pursuant to HRE 603.1, would result in the COMPETENCY OF CHILDREN complainant's disqualification to testify. For example, the court in State v. Gonsalves, 5 The following proposed legislation did not Haw.App. 659, 706 P.2d 1333 (1985), although pass the Hawaii Legislature in prior years. utilizing an improper standard of review, held that it was not error to allow a mentally retarded twenty-eight year-old sex assault complainant, Competency of child victims who had an IQ of 40 and functioned cognitively at (a) Any child who is a victim of an offense the level of a three to four year-old child, to testify. under chapter 707 or chapter 709 shall be Id. at 666, 706 P.2d at 1339. Therefore, the competent to testify without prior qualification. question of testimonial competency must be The trier of fact shall be permitted to determined on a case by case basis. We merely determine the weight and credibility to be hold, on the record before us, that (1) the issue of given to the testimony. the complainant's competency to testify was (b) In charging the jury at the completion of reasonably called into question; and (2) the trial any trial in which a child victim has testified, court committed plain error in failing to engage in the court shall issue no cautionary instruction an independent inquiry and make an express to the jury that children may be less credible finding as to whether the complainant was than other witnesses. competent to testify before allowing her substantive testimony to be exposed to the jury. Professor John Barkai, U.H. Law School Page - 40 STATE V. MORENO Hypnotized witness (rape victim) 68 Haw. 233, 709 P.2d 103 (1985) [Defendant was convicted of rape in the first degree. The Supreme Court, Padgett, J., held that sexual assault victim's testimony that defendant had sexual intercourse with her was inadmissible where such testimony was an hypnotically induced recollection. Reversed and remanded.] The admissibility of hypnotically refreshed memory testimony by prosecution witnesses has been the subject of much legal debate. ... At least four rules, however, have been laid down in other states. (1) Some states have ruled that the testimony is admissible, with the weight for the trier of the facts. (Md 1968 since overruled). (2) In New Jersey, a variant rule was adopted, under which the testimony was admissible provided that certain stringent criteria laid down by the court were met. State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981). ... (3) The courts in certain states have permitted the witness to testify as to those facts which can be shown to have been recalled prior to hypnosis. (... N.Y. Mass. Ariz...) (4) Finally, certain courts have ruled a witness incompetent to testify as to any matters covered during the hypnotic sessions regardless of prior recorded memory with respect thereto. People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982). It would serve no point for this court, inexpert as it is, to enter into a long discussion on the subject of the reliability of hypnotically induced testimony. Suffice it to say, the consensus of modern opinion is that such testimony is unreliable and, therefore, inadmissible. ... We are unwilling to follow Shirley, supra, and adopt a bright line rule, which would require either, that the victim of such a crime forego the use of hypnotherapy for therapeutic purposes until the trial, or, that the State abandon the use of the victim's testimony in attempting to prosecute the crime. As the New York court said in Hughes, supra: A criminal trial for rape or assault would present an odd spectacle if the victim was barred from saying anything, including the fact that the crime occurred, simply because he or she submitted to hypnosis sometime prior to trial to aid the investigation or obtain needed medical treatment. ... We have no trouble ... in affirming the refusal of the court below ... to hold that the victim was incompetent to testify as to all matters dealt with in the hypnotherapy sessions. However, it is apparent, in this case, that the victim's testimony that appellant had sexual intercourse with her, was an hypnotically induced recollection, and we therefore hold that that testimony was, per se, inadmissible.  We adopt the rule that a witness may testify as to matters which can be shown to have been recollected, by that witness, prior to hypnosis. ... Reversed and remanded. Professor John Barkai, U.H. Law School Page - 41 ROCK v. ARKANSAS, 483 U.S. 44, 107 S.Ct. 2704 (1987) Justice BLACKMUN delivered the opinion of constitutional right to testify in her own defense. the Court. At this point in the development of our adversary system, it cannot be doubted that a Petitioner Vickie Lorene Rock was charged defendant in a criminal case has the right to take with manslaughter in the death of her husband, the witness stand and to testify in his or her own Frank Rock, on July 2, 1983. A dispute had defense. This, of course, is a change from the been simmering about Frank's wish to move historic common-law view, which was that all from the couple's small apartment adjacent to parties to litigation, including criminal Vickie's beauty parlor to a trailer she owned defendants, were disqualified from testifying outside town. That night a fight erupted when because of their interest in the outcome of the Frank refused to let petitioner eat some pizza trial.... and prevented her from leaving the apartment to get something else to eat.... When police arrived ... The necessary ingredients of the Fourteenth on the scene they found Frank on the floor with Amendment's guarantee that no one shall be a bullet wound in his chest. Petitioner urged the deprived of liberty without due process of law officers to help her husband, Tr. 230, and cried include a right to be heard and to offer to a sergeant who took her in charge, “please testimony: save him” and “don't let him die.”... “A person's right to reasonable notice of a Because petitioner could not remember the charge against him, and an opportunity to be precise details of the shooting, her attorney heard in his defense--a right to his day in suggested that she submit to hypnosis in order to court--are basic in our system of jurisprudence; refresh her memory. Petitioner was hypnotized and these rights include, as a minimum, a twice by Doctor Bettye Back, a licensed right to examine the witnesses against him, to neuropsychologist with training in the field of offer testimony, and to be represented by hypnosis.... counsel.” (Emphasis added.) ... When the prosecutor learned of the hypnosis The right to testify is also found in the sessions, he filed a motion to exclude Compulsory Process Clause of the Sixth petitioner's testimony. The trial judge held a Amendment, which grants a defendant the right pretrial hearing on the motion and concluded to call “witnesses in his favor,” a right that is that no hypnotically refreshed testimony would guaranteed in the criminal courts of the States by be admitted.... the Fourteenth Amendment.... Logically included in the accused's right to call witnesses On appeal, the Supreme Court of Arkansas whose testimony is “material and favorable to rejected petitioner's claim that the limitations on his defense,” ... is a right to testify himself, her testimony violated her right to present her should he decide it is in his favor to do so. In defense. fact, the most important witness for the defense in many criminal cases is the defendant Petitioner's claim that her testimony was impermissibly excluded is bottomed on her The Arkansas rule enunciated by the state Professor John Barkai, U.H. Law School Page - 42 courts does not allow a trial court to consider the phenomenon and of the means to control the whether posthypnosis testimony may be effects of hypnosis is still in its infancy. admissible in a particular case; it is a per se rule Arkansas, however, has not justified the prohibiting the admission at trial of any exclusion of all of a defendant's testimony that defendant's hypnotically refreshed testimony on the defendant is unable to prove to be the the ground that such testimony is always product of prehypnosis memory. A State's unreliable. Thus, in Arkansas, an accused's legitimate interest in barring unreliable evidence testimony is limited to matters that he or she can does not extend to per se exclusions that may be prove were remembered before hypnosis. This reliable in an individual case. Wholesale rule operates to the detriment of any defendant inadmissibility of a defendant's testimony is an who undergoes hypnosis, without regard to the arbitrary restriction on the right to testify in the reasons for it, the circumstances under which it absence of clear evidence by the State took place, or any independent verification of repudiating the validity of all posthypnosis the information it recollections.... Responses of individuals to hypnosis vary In this case, [t]he tape recordings provided greatly. The popular belief that hypnosis some means to evaluate the hypnosis and the guarantees the accuracy of recall is as yet trial judge concluded that Doctor Back did not without established foundation and, in fact, suggest responses with leading questions.... hypnosis often has no effect at all on memory. Those circumstances present an argument for The most common response to hypnosis, admissibility of petitioner's testimony in this however, appears to be an increase in both particular case, an argument that must be correct and incorrect recollections. Three considered by the trial court. Arkansas' per se general characteristics of hypnosis may lead to rule excluding all posthypnosis testimony the introduction of inaccurate memories: the infringes impermissibly on the right of a subject becomes “suggestible” and may try to defendant to testify on his own behalf. please the hypnotist with answers the subject thinks will be met with approval; the subject is The judgment of the Supreme Court of likely to “confabulate,” that is, to fill in details Arkansas is vacated, and the case is remanded to from the imagination in order to make an answer that court for further proceedings not more coherent and complete; and, the subject inconsistent with this opinion. experiences “memory hardening,” which gives him great confidence in both true and false Chief Justice Rehnquist dissented and filed an memories, making effective cross-examination opinion in which Justice White, Justice more difficult.... Despite the unreliability that O'Connor, and Justice Scalia joined. hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence.... We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of Professor John Barkai, U.H. Law School Page - 43 TANNER v. U.S. 483 U.S. 107, 107 S.Ct. 2739 (1987) Petitioners William Conover and Anthony Tanner “flying.” were convicted of conspiring to defraud the United States in violation of 18 U.S.C. s 371, and of committing The District Court ... denied petitioners' motion for a mail fraud... new trial.... The Court of Appeals for the Eleventh Circuit affirmed.... We granted certiorari, 479 U.S. 929, The day before petitioners were scheduled to be 107 S.Ct. 397, 93 L.Ed.2d 351 (1986), to consider sentenced, Tanner filed a motion [which included an] whether the District Court was required to hold an affidavit [from] Tanner's attorney [describing] an evidentiary hearing, including juror testimony, on juror unsolicited telephone call from one of the trial jurors alcohol and drug use during the trial, and to consider [who alleged] that several of the jurors consumed [other evidentiary issues]. alcohol during the lunch breaks at various times throughout the trial, causing them to sleep through the ... Petitioners assert that... juror testimony on afternoons.... The District Court concluded that juror ingestion of drugs or alcohol during the trial is not testimony on intoxication was inadmissible under barred by Federal Rule of Evidence 606(b). Moreover, Federal Rule of Evidence 606(b) to impeach the jury's petitioners argue that whether or not authorized by Rule verdict. The District Court invited petitioners to call any 606(b), an evidentiary hearing including juror testimony nonjuror witnesses, such as courtroom personnel, in on drug and alcohol use is compelled by their Sixth support of the motion for new trial. Tanner's counsel ... Amendment right to trial by a competent jury. testified that he had observed one of the jurors “in a sort of giggly mood” [and] the judge referred to a[n earlier] By the beginning of this century, if not earlier, the conversation between defense counsel and the judge near-universal and firmly established common-law rule during the trial on the possibility that jurors were in the United States flatly prohibited the admission of sometimes falling asleep. juror testimony to impeach a jury verdict.... *** While the appeal of this case was pending before the Exceptions to the common-law rule were recognized Eleventh Circuit, petitioners filed another new trial only in situations in which an “extraneous influence,” motion based on additional evidence of jury misconduct. Mattox v. United States, 146 U.S. 140, 149 (1892), was In another affidavit, Tanner's attorney stated that he alleged to have affected the jury. In Mattox, this Court received an unsolicited visit at his residence from a held admissible the testimony of jurors describing how second juror [who] ... stated that he “felt like ... the jury they heard and read prejudicial information not admitted was on one big party.” [The juror] indicated that seven into evidence. The Court allowed juror testimony on of the jurors drank alcohol during the noon recess. Four influence by outsiders in Parker v. Gladden, 385 U.S. jurors ... consumed between them “a pitcher to three 363, 365 (1966) (bailiff's comments on defendant), and pitchers” of beer during various recesses.... Of the three Remmer v. United States, 347 U.S. 227, 228-230 (1954) other jurors who were alleged to have consumed (bribe offered to juror). See also Smith v. Phillips, 455 alcohol, ... on several occasions he observed two jurors U.S. 209 (1982) (juror in criminal trial had submitted an having one or two mixed drinks during the lunch recess, application for employment at the District Attorney's and one other juror, who was also the foreperson, having office). In situations that did not fall into this exception a liter of wine on each of three occasions. [The juror] for external influence, however, the Court adhered to the also stated that he and three other jurors smoked common-law rule against admitting juror testimony to marijuana quite regularly during the trial.... Moreover, ... impeach a verdict. McDonald v. Pless, 238 U.S. 264 he observed one juror ingest cocaine five times and (1915); Hyde v. United States, 225 U.S. 347, 384 another juror ingest cocaine two or three times. One (1912). juror sold a quarter pound of marijuana to another juror during the trial, and took marijuana, cocaine, and drug Lower courts used this external/internal distinction paraphernalia into the courthouse. [The juror] noted to identify those instances in which juror testimony that some of the jurors were falling asleep during the impeaching a verdict would be admissible. The trial, and that one of the jurors described himself ... as distinction was not based on whether the juror was Professor John Barkai, U.H. Law School Page - 44 literally inside or outside the jury room when the alleged “[L]et it once be established that verdicts solemnly irregularity took place; rather, the distinction was based made and publicly returned into court can be on the nature of the allegation. Clearly a rigid attacked and set aside on the testimony of those who distinction based only on whether the event took place took part in their publication and all verdicts could inside or outside the jury room would have been quite be, and many would be, followed by an inquiry in the unhelpful. For example, under a distinction based on hope of discovering something which might location a juror could not testify concerning a invalidate the finding. Jurors would be harassed and newspaper read inside the jury room. Instead, of course, beset by the defeated party in an effort to secure from this has been considered an external influence about them evidence of facts which might establish which juror testimony is admissible.... Similarly, under misconduct sufficient to set aside a verdict. If a rigid locational distinction jurors could be regularly evidence thus secured could be thus used, the result required to testify after the verdict as to whether they would be to make what was intended to be a private heard and comprehended the judge's instructions, since deliberation, the constant subject of public the charge to the jury takes place outside the jury room. investigation--to the destruction of all frankness and Courts wisely have treated allegations of a juror's freedom of discussion and conference.” McDonald inability to hear or comprehend at trial as an internal v. Pless, 238 U.S., at 267-268... matter.... There is little doubt that postverdict investigation Most significant for the present case, however, is the into juror misconduct would in some instances lead to fact that lower federal courts treated allegations of the the invalidation of verdicts reached after irresponsible or physical or mental incompetence of a juror as “internal” improper juror behavior. It is not at all clear, however, rather than “external” matters. In United States v. that the jury system could survive such efforts to perfect Dioguardi, 492 F.2d 70 (CA2 1974), the defendant it. Allegations of juror misconduct, incompetency, or Dioguardi received a letter from one of the jurors soon inattentiveness, raised for the first time days, weeks, or after the trial in which the juror explained that she had months after the verdict, seriously disrupt the finality of “eyes and ears that ... see things before [they] happen,” the process.... Moreover, full and frank discussion in the but that her eyes “are only partly open” because “a curse jury room, jurors' willingness to return an unpopular was put upon them some years ago.” Armed with this verdict, and the community's trust in a system that relies letter and the opinions of seven psychiatrists that the on the decisions of laypeople would all be undermined letter suggested that the juror was suffering from a by a barrage of postverdict scrutiny of juror conduct. psychological disorder, Dioguardi sought a new trial or See Note, Public Disclosures of Jury Deliberations, 96 in the alternative an evidentiary hearing on the juror's Harv.L.Rev. 886, 888-892 (1983). competence. The District Court denied the motion and the Court of Appeals affirmed. The Court of Appeals Federal Rule of Evidence 606(b) is grounded in the noted “[t]he strong policy against any post-verdict common-law rule against admission of jury testimony to inquiry into a juror's state of mind,” id., at 79, and impeach a verdict and the exception for juror testimony observed: relating to extraneous influences.... “The quickness with which jury findings will be set [P]etitioners argue that substance abuse constitutes aside when there is proof of tampering or external an improper “outside influence” about which jurors may influence, ... parallel the reluctance of courts to testify under Rule 606(b). In our view the language of inquire into jury deliberations when a verdict is valid the Rule cannot easily be stretched to cover this on its face.... Such exceptions support rather than circumstance. However severe their effect and undermine the rationale of the rule that possible improper their use, drugs or alcohol voluntarily ingested internal abnormalities in a jury will not be inquired by a juror seems no more an “outside influence” than a into except 'in the gravest and most important cases.' virus, poorly prepared food, or a lack of sleep. In any case, whatever ambiguity might linger in the Substantial policy considerations support the language of Rule 606(b) as applied to juror intoxication common-law rule against the admission of jury is resolved by the legislative history of the Rule. * * * testimony to impeach a verdict. As early as 1915 this [The] legislative history demonstrates with Court explained the necessity of shielding jury uncommon clarity that Congress specifically understood, deliberations from public scrutiny: considered, and rejected a version of Rule 606(b) that Professor John Barkai, U.H. Law School Page - 45 would have allowed jurors to testify on juror conduct trial motion at which the judge invited petitioners to during deliberations, including juror intoxication. This introduce any admissible evidence in support of their legislative history provides strong support for the most allegations. At issue in this case is whether the reasonable reading of the language of Rule 606(b)-- that Constitution compelled the District Court to hold an juror intoxication is not an “outside influence” about additional evidentiary hearing including one particular which jurors may testify to impeach their verdict. kind of evidence inadmissible under the Federal Rules. Finally, even if Rule 606(b) is interpreted to retain As described above, long-recognized and very the common-law exception allowing postverdict inquiry substantial concerns support the protection of jury of juror incompetence in cases of “substantial if not deliberations from intrusive inquiry. Petitioners' Sixth wholly conclusive evidence of incompetency,” Amendment interests in an unimpaired jury, on the other Dioguardi, 492 F.2d, at 80, the showing made by hand, are protected by several aspects of the trial process. petitioners falls far short of this standard. The affidavits The suitability of an individual for the responsibility of and testimony presented in support of the first new trial jury service, of course, is examined during voir dire. motion suggested, at worst, that several of the jurors fell Moreover, during the trial the jury is observable by the asleep at times during the afternoons. The District Court court, by counsel, and by court personnel. See United Judge appropriately considered the fact that he had “an States v. Provenzano, 620 F.2d 985, 996-997 (CA3 unobstructed view” of the jury, and did not see any juror 1980) (marshal discovered sequestered juror smoking sleeping.... The juror affidavit submitted in support of marijuana during early morning hours). Moreover, the second new trial motion was obtained in clear jurors are observable by each other, and may report violation of the District Court's order and the court's inappropriate juror behavior to the court before they local rule against juror interviews, MD Fla.Rule 2.04(c); render a verdict. See Lee v. United States, 454 A.2d 770 on this basis alone the District Court would have been (DC App.1982), ... (on second day of deliberations, acting within its discretion in disregarding the affidavit. jurors sent judge a note suggesting that foreperson was In any case, although the affidavit of juror Hardy incapacitated). Finally, after the trial a party may seek to describes more dramatic instances of misconduct, impeach the verdict by nonjuror evidence of misconduct. Hardy's allegations of incompetence are meager. Hardy See United States v. Taliaferro, 558 F.2d 724, 725-726 stated that the alcohol consumption he engaged in with (CA4 1977) (court considered records of club where three other jurors did not leave any of them intoxicated. jurors dined, and testimony of marshal who App. to Pet. for Cert. 47 (“I told [the prosecutor] that we accompanied jurors, to determine whether jurors were would just go out and get us a pitcher of beer and drink intoxicated during deliberations). Indeed, in this case the it, but as far as us being drunk, no we wasn't”). The only District Court held an evidentiary hearing giving allegations concerning the jurors' ability to properly petitioners ample opportunity to produce nonjuror consider the evidence were Hardy's observations that evidence supporting their allegations. some jurors were “falling asleep all the time during the In light of these other sources of protection of trial,” and that his own reasoning ability was affected on petitioners' right to a competent jury, we conclude that one day of the trial. App. to Pet. for Cert. 46, 55. These the District Court did not err in deciding, based on the allegations would not suffice to bring this case under the inadmissibility of juror testimony and the clear common-law exception allowing post-verdict inquiry insufficiency of the nonjuror evidence offered by when an extremely strong showing of incompetency has petitioners, that an additional post-verdict evidentiary been made. hearing was unnecessary.... Petitioners also argue that the refusal to hold an additional evidentiary hearing at which jurors would [Omitted is the dissent of four Justices] testify as to their conduct “violates the sixth amendment's guarantee to a fair trial before an impartial and competent jury.” (emphasis in original). This Court has recognized that a defendant has a right to “a tribunal both impartial and mentally competent to afford a hearing.” Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038 (1912). In this case the District Court held an evidentiary hearing in response to petitioners' first new Professor John Barkai, U.H. Law School Page - 46 State v. Furutani 76 Hawai'i 172, 873 P.2d 51 (1994) FACTS: After trial a juror told the court that she had voted to convict only because she was pressured to do so by other jurors who wanted to go home for the weekend. Later the same day, she also represented to defense counsel that she had voted to convict on the counts as to which Furutani's signatures on checks and tax returns were material only because another juror had opined during deliberations that if the signatures were not Furutani's, he would have taken the stand and said so. ... “The general question, therefore, becomes whether the defendant has been substantially prejudiced by particular comments or statements made by jurors during deliberations regarding his or her failure to testify. See Lopez v. Sears, Roebuck and Co., 70 Haw. 562, 563-64, 777 P.2d 715, 716 (1989); Williamson, 72 Haw. at 102, 807 P.2d at 596. The difficulty in showing prejudice arising from jury misconduct [during deliberations] is that [u]nder [Hawai'i Rules of Evidence (HRE) ] 606(b) ..., we cannot consider ... jurors' testimony as to the effect of the improper statement[s] upon them. We can only consider whether such ... statement[s] [were] made ..., and whether, given [those] statement[s], we can say that [the defendant] had a trial before an impartial jury. ... “[R]ecogniz[ing] the difficulty in making a showing of prejudice under these constraints,” id., we hold that when a criminal defendant makes a prima facie showing that improper juror comments during deliberations have been “used as a circumstance against” him or her, see Carrillo, 566 S.W.2d at 914, “there is a presumption of prejudice and the verdict will be set aside unless it is clearly shown that the juror's [comments] could not have affected the verdict.” Sears, Roebuck and Co., 70 Haw. at 564, 777 P.2d at 717 (citations omitted). And consistent with our case law, the burden is on the prosecution to make such a “clear showing” beyond a reasonable doubt. Williamson, 72 Haw. at 102, 807 P.2d at 596; Larue, 68 Haw. at 578, 722 P.2d at 1042; Amorin, 58 Haw. at 630, 574 P.2d at 900. ... We hold that the circuit court's COL that juror “misconduct during deliberations deprived [Furutani] of a trial by twelve fair and impartial jurors” was not clearly erroneous. ... IV. CONCLUSION Inasmuch as the circuit court's FOFs [Finding of Facts] and COL [Conclusions of Law] were not clearly erroneous, we hold that the circuit court did not commit an abuse of discretion in granting Furutani's motion for new trial. ... Affirmed. Professor John Barkai, U.H. Law School Page - 47 STATE v. YAMADA 108 Hawai'i 474, 122 P.3d 254 (2005) SLEEPING JUROR? Background: Defendant was convicted of robbery and assault, but trial court granted a new trial because juror was sleeping during defense counsel's closing argument. Prosecution appealed. Holding: The Supreme Court, Moon, C.J., held that juror's misconduct was not prejudicial. Vacated and remanded. Acoba and Duffy, filed dissenting opinions. Opinion of the Court by MOON, C.J. Plaintiff-appellant State of Hawai i [hereinafter, the prosecution] appeals ... findings of fact, conclusions of law and order of the Circuit Court of the First Circuit, granting a new trial to defendant-appellee Kaleokalani Yamada, who had been convicted of two counts of robbery in the first degree. ... On appeal, the prosecution contends that the trial court abused its discretion in granting Yamada's motion for new trial inasmuch as the court based its decision on the sole ground that a juror slept through twelve minutes of defense counsel's one-hour long closing argument, “without a showing of actual prejudice from the defense or a finding of prejudice by the circuit court, and where the record as a whole evinced no prejudice to defendant.” For the following reasons, we vacate the circuit court's March 15, 2004 order and remand this case for sentencing.... At trial, the prosecution presented two witnesses who positively identified Yamada in a police lineup. Yamada presented one alibi witness who testified that she was with him at her house on the night of the incident and that Yamada had remained with her until the next afternoon. Additionally, Yamada's then-employer testified for the defense as to Yamada's physical appearance and pertinent company policies regarding physical appearance to contradict the prosecution witnesses' physical descriptions of the perpetrator.... The next morning, outside of the jury's presence, defense counsel moved for a mistrial on the following grounds: (1) several jurors “seemed sleepy [during defense counsel's closing argument] and did not consider the closing argument”... After the court denied Yamada's motion, the jury returned a unanimous verdict finding Yamada guilty as charged on all counts. The court then dismissed the jury, except for the three jurors, who were believed to be sleeping during closing arguments. The court then proceeded to voir dire...the three jurors, only Saka admitted to sleeping during the parties' closing arguments.... THE COURT: [Saka], it's the procedure if someone-if a juror is perceived to maybe have closed their eyes or gone to sleep during-not the trial but closing, did at anytime during closing arguments when [the prosecution] or [defense counsel] were arguing the case, did you go to sleep? [Saka]: I may have passed out a couple of seconds, but I did notice on the Power Point, I think it was during [the prosecution's closing argument] and when I did open them, it came back up, it was pretty much on the same bullet point... The court summarized the jurors' statements: It sounds to me like [the foreperson], even though her eyes were closed, was able to hear. She may have been a little drowsy, so to speak, but Professor John Barkai, U.H. Law School Page - 48 people get drowsy. Mr. Gomez clearly was wide awake. [Saka] said he was asleep for ten to 15 seconds, but he doesn't know. He may have missed as much as 20 percent of the defense closing... On March 14, 2004, the court entered an order granting Yamada's motion for new trial, finding and concluding as follows:...3. The Court granted the Motion on the sole basis that a juror was asleep for about twenty per cent (20%) of defense counsel's closing argument, that was approximately one hour long, thus the juror was asleep for about twelve (12) minutes. III. DISCUSSION On appeal, the prosecution argues that the trial court abused its discretion by granting Yamada's motion for new trial based on a juror sleeping during defense counsel's closing argument, “without a showing of actual prejudice from the defense or a finding of prejudice by the circuit court, and where the record as a whole evinces no prejudice to [Yamada].” Specifically, the prosecution asserts that finding that a juror was sleeping, without more, does not demonstrate prejudice and that any misconduct on Saka's part was harmless because (1) he did not sleep through any testimony, evidence, or jury instructions and (2) the portion of the argument allegedly missed was not significant. Moreover, the prosecution points out that, if defense counsel believed Saka slept through significant portions of the proceedings, defense counsel was under the duty to bring the misconduct to the court's attention at that time for the court to correct the problem immediately. With respect to jury misconduct, this court has noted: The sixth amendment to the United States Constitution and article I, section 14 of the Hawai i Constitution guarantee the criminally accused a fair trial by an impartial jury...If any juror was not impartial, a new trial must be granted. However, “not all juror misconduct necessarily dictates the granting of a new trial. A new trial will not be granted if it can be shown that the jury could not have been influenced by the alleged misconduct.” Furutani, 76 Hawai i at 180, 873 P.2d at 59.... Where the trial court determines that the juror misconduct could substantially prejudice the defendant's right to a fair and impartial jury, a rebuttable presumption of prejudice is raised and the court must investigate the totality of circumstances to determine if the misconduct impacted the jury's impartiality...In order to overcome the rebuttable presumption, the prosecution must show that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt. Assuming that Saka's sleeping constituted misconduct, the trial court was under the duty to “determine whether the misconduct [was] of a nature which could substantially prejudice [Yamada]'s right to a fair trial.” Adams, 10 Haw.App. at 599, 880 P.2d at 232. The trial court did not expressly enter a finding of prejudice, but granted the motion for new trial “on the sole basis that a juror was asleep for about ... twelve (12) minutes.” Finding No. 3. Generally, courts have held that “the mere falling asleep for a short time, by a juror, during the argument of counsel for the defendant in a criminal cause, does not of itself constitute a sufficient cause for a new trial.” Professor John Barkai, U.H. Law School Page - 49 In U.S. v. Barrett, 703 F.2d 1076, as amended, (9th Cir.1982), the court followed the same test, noting: Even if the juror in the present case is found to have been asleep during portions of the trial, a new trial may not be required if he did not miss essential portions of the trial and was able fairly to consider the case... Thus, the dispositive question for us in this appeal is whether the prosecution has overcome the rebuttable presumption by showing that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt. We believe it has. Initially, as the prosecution points out, there is nothing in the record of the instant case to suggest that Saka slept through any of the evidence adduced at trial or any of the jury instructions that were given. There is also nothing in the record to suggest that he was unable to fully participate in jury deliberations... Even if Saka was sleeping and did not hear a portion of defense counsel's closing arguments, he was given the correct instruction, and we presume he followed it...We, therefore, believe, based on the totality of circumstances, that the prosecution has met its burden in establishing that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt... Although we do not condone jurors sleeping or being otherwise inattentive while court is in session, we recognize-as did the Supreme Court of California in Hasson v. Ford Motor Company, 32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P.2d 1171 (1982), that, at some point during a trial, even the most diligent jurors may be less than one hundred percent focused on the proceedings and may “reach the end of [their] attention span at some point during a trial and allow [their] mind[s] to wander temporarily from the matter at hand.”... Although the trial court in the instant case did not explicitly determine that the juror's sleeping constituted misconduct, we agree with its implicit finding that, by sleeping for twelve minutes, the juror breached his duty of attentiveness and that he was, therefore, guilty of juror misconduct. However, as emphasized by the court in Hasson and as this court has repeatedly stated, “not all juror misconduct necessarily dictates the granting of a new trial.”...As previously stated, once the trial court determines that juror misconduct could substantially prejudice the defendant's right to a fair and impartial jury, -which we believe was implicit in the trial court’ granting of a new trial,- a rebuttable presumption is raised, and the prosecution must then show that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt. And, as previously discussed, we agree with the prosecution that, based on the totality of circumstances, the juror misconduct in this case was harmless beyond a reasonable doubt. Finally, we emphasize, as the court did in Hasson, that: Retrials are to be avoided unless necessitated by a more substantial dereliction of jurors' duties than was evident in this case. “Society has a manifest interest in avoiding needless retrials: they cause hardship to the litigants, delay the administration of justice, and result in social and economic waste.” Accordingly, we hold that the trial court abused its discretion in granting a new trial. Professor John Barkai, U.H. Law School Page - 50 Dissenting Opinion by ACOBA, J. I respectfully disagree. A slumbering juror is not a competent one. While the prejudicial effect of such conduct may rest on the specific facts of a case, in light of our case law we ought not to establish the legal precedent in this jurisdiction that sleeping through twenty percent of a defendant's final argument, especially that pertaining to reasonable doubt, is legally sustainable. The juror here admitted to sleeping through “20% at the most” of defense counsel's closing argument and perhaps through 10-15 seconds of the prosecutor's closing argument... III. Here the court did everything it was supposed to do in making an inquiry into the juror misconduct. Under our case law, the court's decision is entitled to substantial deference by virtue of the abuse of discretion standard. Deference to the court is also compelled because here the trial judge has been engaged with the jurors in the trial of the case, questioned and instructed them, and observed them and attended to them over several days. Dissenting Opinion by DUFFY, J. I respectfully dissent. The record presented does not show that the circuit court abused its discretion in granting a new trial based on juror misconduct. As the dispute between the majority and dissenting opinion of Justice Acoba itself demonstrates, reasonable people can reasonably differ in their judgment as to whether the sleeping juror could have substantially prejudiced Yamada's right to a fair trial. Under the abuse of discretion standard, therefore, it cannot be said that the circuit court clearly exceeded the bounds of reason in ordering a new trial... In my view, where, as here, reasonable people can reasonably differ, reversal of the circuit court's decision constitutes an inappropriate intrusion on the province of the trial court to make determinations regarding the credibility of jurors and the effect of juror misconduct upon Yamada's right to a fair trial... Here, the circuit court was the trier of fact with respect to the motion for a new trial... Having heard the entire case, it conducted a voir dire of the allegedly sleeping jurors; evaluated their statements, demeanor, and conduct; and ultimately concluded that Yamada's right to a fair trial had been prejudiced. Under these facts, therefore, I am unable to conclude that the circuit court abused its discretion in granting a new trial based on juror misconduct. Accordingly, I would affirm the circuit court's order granting a new trial based on juror misconduct. Professor John Barkai, U.H. Law School Page - 51 State v. Bailey, 126 Haw. 383, 271 P.3d 1142 (2012) Juror Misconduct RECKTENWALD, C.J., NAKAYAMA, ACOBA, and DUFFY, JJ.; and Circuit Judge POLLACK, Assigned in Place of McKENNA, J., Recused. Opinion of the Court by RECKTENWALD, C.J. Peter Kalani Bailey was convicted on four counts of attempted sexual assault in the first degree; victim was twelve years old at the time. The ICA affirmed. … during the jury's deliberations, Juror Nine informed the other jurors that Bailey had previously been charged with and/or convicted of murder… A. Juror Nine's statements violated Bailey's right to a fair and impartial jury Bailey argues that the circuit court abused its discretion in denying his motion for new trial, which was made in relation to Juror Nine's statements, because (1) the evidence against Bailey was not overwhelming; (2) the circuit court was not permitted to consider the juror's responses during voir dire regarding how they were affected by the statements; (3) “it was unavoidable” that the statements would “rouse the jury to overmastering hostility”; and (4) the circuit court's instruction to disregard the statements was insufficient to cure any prejudice…. We hold that the circuit court abused its discretion in denying Bailey's motion for mistrial, because Juror Nine's statements regarding Bailey's prior murder charge and/or conviction were not harmless beyond a reasonable doubt. Accordingly, the circuit court's judgment of conviction and sentence must be vacated. … approximately 4 hours and 30 minutes into its deliberations, the jury sent its Communication # 1 to the circuit court, stating, “We would like to speak to Judge Hara regarding information that a juror has that has affected our deliberations.” ... The circuit court instructed the jury to suspend its deliberations. The circuit court then proceeded to voir dire each juror outside of the presence of the other jurors, beginning with the foreperson. …Juror Nine was then called and stated: I know what I did is wrong. Was just blurted out. And I wasn't using that to cloud anybody's mind. And it just came out and I'll admit what I did. .... Well I just—we were discussing—I don't know if I can say, we were discussing, um, basically a part of [ ] Bailey not knowing what had happened. And I was getting frustrated because everybody's focus point was on that. And what I did say was that, “Maybe he does know what he's doing or not because he's been through that process before.” That's what I said. .... And I said, “He's been in trouble before.” And then they questioned me again, “with what?” And I said, “From what I know, it was on a murder charge.” And then they asked me, you know, well what do I—what do I know—if I know where he stands now. I said, “That I'm not sure.” And I know I was wrong for saying that. .... Most jurors… stated that they could still be fair and impartial. Professor John Barkai, U.H. Law School Page - 52 The State conceded that Juror Nine's statements were prejudicial. However, the State argued that “the [c]ourt's voir dire of the other eleven jurors did indicate that they could still render a fair and impartial verdict.” The circuit court denied Bailey's motion for mistrial… The circuit court dismissed Juror Nine and seated an alternate juror in her place. … This court has articulated the following "conceptual framework" for analyzing a claim that juror 19 misconduct prejudiced a defendant's right to a fair trial : [W]hen a defendant in a criminal case claims a deprivation of the right to a fair trial by an impartial jury, the initial step for the trial court to take is to determine whether the nature of the alleged deprivation rises to the level of being substantially prejudicial. If it does not rise to such a level, the trial court is under no duty to interrogate the jury. And whether it does rise to the level of substantial prejudice is ordinarily a question committed to the trial court's discretion. Where the trial court does determine that such alleged deprivation is of a nature which could substantially prejudice the defendant's right to a fair trial, a rebuttable presumption of prejudice is raised. The trial judge is then duty bound to further investigate the totality of circumstances surrounding the alleged deprivation to determine its impact on jury impartiality. The standard to be applied in overcoming such a presumption is that the alleged deprivation must be proved harmless beyond a reasonable doubt. The defendant bears the initial burden of making a prima facie showing of a deprivation that could substantially prejudice his or her right to a fair trial by an impartial jury. But once a rebuttable presumption of prejudice is raised, the burden of proving harmlessness falls squarely on the prosecution. Furutani, 76 Hawai`i at 180-81, 873 P.2d at 59-60 (formatting altered) (citations, ellipses, internal quotation marks and brackets omitted). In the instant case, Bailey met his burden of "making a prima facie showing of a deprivation that could substantially prejudice his or her right to a fair trial by an impartial jury." See id. The voir dire of Juror Nine indicates that her statements led to a brief discussion by the jurors concerning Bailey's prior criminal record, which had been excluded from the evidence pursuant to Bailey's motion in limine. For example, Juror Nine testified that, when she stated Bailey had "been in trouble before," other jurors asked her "with what?" and whether she knew where Bailey "stands now." In addition, Juror Nine's testimony indicates that her statements were used as a circumstance against Bailey. Specifically, Juror Nine told the other jurors that she did not believe 19 Although this framework has been utilized in cases in which the court was advised of alleged juror misconduct after the jury had returned its verdict, see, e.g., Furutani, 76 Hawai`i at 177, 873 P.2d at 56, it is equally applicable in the circumstances of the instant case, where the issue of juror misconduct was raised during jury deliberations. Professor John Barkai, U.H. Law School Page - 53 Bailey's statement to Detective Artienda that he did not know what had happened, since he had "been in trouble before." See id. at 185, 873 P.2d at 64 (noting that a legal presumption of prejudice does not arise from a juror's "mere verbalization of or casual reference to" a defendant's failure to testify and that, in order to constitute substantial prejudice, such statements "must amount to a discussion by the jurors or be used as a circumstance against the accused"). Accordingly, the circuit court's decision to investigate the impact of Juror Nine's statements on juror impartiality was proper. See id. at 181, 873 P.2d at 60; see also State v. Keliiholokai, 58 Haw. 356, 357-60, 569 P.2d 891, 893-96 (1977) (citation omitted) (noting that evidence of the defendant's prior convictions for robbery would not have been admissible at trial due to its prejudicial nature, and that the circuit court accordingly erred in failing to voir dire the jury regarding whether they had read a newspaper article that discussed the convictions). Upon its investigation, the circuit court concluded that Juror Nine's statements were harmless beyond a reasonable doubt. However, for the reasons set forth below, we conclude the State did not meet its burden of proving harmlessness. See Furutani, 76 Hawai`i at 185, 873 P.2d at 64. The determination of whether Juror Nine's statements were harmless beyond a reasonable doubt "requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." See State v. Tuua, 125 Hawai`i 10, 13, 250 P.3d 273, 276 (2011) (citation and quotation marks omitted) (defining the harmless beyond a reasonable doubt standard). In circumstances involving an alleged deprivation of the right to an impartial jury, we consider the "totality of the circumstances surrounding the alleged deprivation to determine its impact on jury impartiality." Furutani, 76 Hawai`i at 181, 873 P.2d at 60 (citation omitted). Juror Nine's comment that she did not believe Bailey's statement to Detective Artienda due to his criminal record indicates that Juror Nine was prejudiced against Bailey and could not continue as a fair and impartial juror. Juror Nine's statements were also highly prejudicial and inflammatory in nature, and were therefore likely to impact the impartiality of the remaining jurors. First, Juror Nine's statements indicated that, because of his criminal record, Bailey was not credible in stating to Detective Artienda that he did not recall what happened with MM. In addition, Juror Nine's statements indicated that Bailey had been charged with and/or convicted of murder. This court has recognized in other contexts that inadvertent and inadmissible statements concerning prior murder offenses can be "so prejudicial as to deprive the defendant of his constitutional right to a fair trial." … **** Although this court has held that the erroneous admission of prior criminal conduct may be harmless if the trial court gives a cautionary instruction and the evidence against the defendant is overwhelming, see, e.g., State v. Loa, 83 Hawai`i 335, 354, 926 P.2d 1258, 1277 (1996), this court has also recognized that such an instruction may be insufficient to cure the effect of improper evidence that is highly prejudicial, Hamala, 73 Haw. at 291-92, 834 P.2d at 276 (recounting this court's prior unpublished memorandum opinion, which vacated the defendant's conviction on second degree murder due to prejudicial testimony concerning previous murders allegedly committed by the defendant, and noting that "the testimony regarding prior bad acts Professor John Barkai, U.H. Law School Page - 54 elicited by the prosecutor was highly prejudicial and that no curative instruction could suffice"). In the instant case, although there was substantial evidence to support Bailey's conviction, there were also inconsistencies in the testimony of MM, KM, and Uncle, and arguable inconsistencies between the testimony of MM and the physical evidence. See infra Part III. C. Accordingly, the evidence was not strong enough to overcome the substantial prejudice created by Juror Nine's statements, even though the circuit court advised the remaining jurors to disregard Juror Nine's statements in resuming their deliberations. … In addition, the voir dire indicates that Juror Nine's statements had an effect on several of the remaining jurors. For example, Juror Four initially stated that he was "not sure" whether he could disregard what Juror Nine said. And Juror Twelve stated that he "can't say [he] didn't hear it and [it] didn't make an effect on [him.]" Although each of the jurors ultimately stated that they could remain fair and impartial, their initial reactions reflect the highly prejudicial nature of Juror Nine's statements. Moreover, Juror Six recalled that Juror Nine stated, "I've got some inside information that you guys don't have and that you should know about." The nature of this statement may have led the other jurors to believe the information Juror Nine possessed was particularly credible or reliable. Cases from other jurisdictions further support the conclusion that the circuit court abused its discretion in denying Bailey's motion for new trial. **** In sum, Juror Nine's statements concerned a highly inflammatory and prejudicial prior crime that had been ruled inadmissible. Each of the jurors admitted to hearing at least part of Juror Nine's statements. Their responses during voir dire indicated that several of the jurors initially viewed the statement as so prejudicial as to affect their impartiality. And, although the circuit court instructed the jury to disregard the statements, the evidence here was not so overwhelming as to outweigh the prejudice of Juror Nine's statements. When viewed alongside the nature of the evidence presented at trial and the statements of some of the jurors during voir dire, Juror Nine's statements were insurmountably prejudicial. We conclude, based on the totality of the circumstances, that there is a "reasonable possibility" that Juror Nine's statements contributed to Bailey's conviction. …Accordingly, Juror Nine's statements were not harmless beyond a reasonable doubt. See id. (holding that, once a rebuttable presumption of prejudice is raised, the prosecution bears the burden of showing the alleged deprivation was harmless beyond a reasonable doubt). Therefore, the circuit court abused its discretion in denying Bailey's motion for a new trial. … **** IV. Conclusion Based on the foregoing, we vacate the judgment of the ICA and the circuit court's judgment of conviction and sentence, and remand to the circuit court for a new trial. Professor John Barkai, U.H. Law School Page - 55 COMPETENCY PROBLEMS 1. An eye-witness to an automobile accident needs glasses for driving. He did not have his glasses on at the time he says he observed the accident. Is the witness competent to testify to what he saw? 2. Three years before seeing the accident, a witness to the accident suffered from chronic alcoholism requiring hospitalization for six months. The witness began drinking after his conviction for perjury stemming from an investigation of the witness's income tax returns for the preceding five years. During hospitalization, the witness had difficulty recalling events. Is the witness competent to testify at the trial about the accident? 3. When called to testify at trial, a witness states that religious beliefs preclude him from taking an oath, but that the witness will say “I promise to tell the truth.” May the witness testify? 4A. A witness testifies that although he was talking to a customer at the time of the accident, he thought he saw Billy Boy get off his bicycle at the corner of the intersection of Main & First Streets and walk his bike across the street. But, the witness is not positive that Billy walked the bike. Is the witness' testimony partially or entirely admissible? 5. An eight-year-old child saw an automobile accident. When the child was called to testify at the trial, a voir dire examination (preliminary questioning about whether the child was competent to testify) on the question of competency reveals that the child does not attend religious services, and does not believe in God. When asked what happens when you tell a lie, the child states, “Nothing happens. Most of the time everyone thinks it's true. When I get caught lying nothing happens.” The child tells the court that he will testify truthfully. At the time of trial, the child is 11 years old, but reads at a first grade level. Is the child a competent witness? 6. A witness is interviewed by the plaintiff's lawyer a few weeks after an accident. Nobody else was present at the interview. At trial, the witness' testimony is inconsistent with what plaintiff's lawyer was told by the witness during the interview. May plaintiff's lawyer testify about the inconsistent statement which the witness gave him at the interview? Professor John Barkai, U.H. Law School Page - 56 WITNESS EXAMINATION and TRIAL Professor John Barkai, U.H. Law School Page - 57 STATE v. KASSEBEER , 118 Hawai'i 493, 193 P.3d 409 (2008) Motion To Strike Should Be Made To Nonresponsive Answer Background: Defendant was convicted of sexual assault in the first degree and kidnapping with intent to terrorize in connection with incidents involving wife. The Intermediate Court of Appeals, affirmed. Holdings: Granting certiorari, the Supreme Court, Levinson, J., held that: (1) testimony about handgun that defendant brought to marital residence had significant probative value as to state of mind that outweighed danger of undue process on kidnapping charge; (2) evidence of defendant's alleged physical abuse of wife during early morning incident that took place approximately ten hours before charged offenses was admissible;… (6) erroneous ruling that sustained objection to defense counsel's question to alleged victim affected defendant's substantial right to confrontation and thus constituted reversible error; and (7) references by prosecution witnesses to defendant's alleged prior abuse of wife did not require mistrial. Judgments vacated and matter remanded for new trial. **** Kassebeer further complains that the trial court erred by subsequently “allowing [the complainant] to engage in [a] long, non-responsive, sympathy rendering[ ] narrative over defense objection A trial court's decision to admit testimony over an objection based on nonresponsiveness requires a “ ‘judgment call’ “ and is reviewed for abuse of discretion. Strictly speaking, it appears that the complainant's answer was nonresponsive to Kassebeer's question, however inartfully posed, which asked whether the complainant recalled responding to Detective Kim. This court stated in State v. Hashimoto, 46 Haw. 183, 195, 377 P.2d 728, 736 (1962), that, “[w]hen an unresponsive or improper answer is given to a proper question, the remedy is a motion to strike,” and that, “[a]bsent such motion, the answer will generally not be considered when urged on appeal as prejudicial.” (Citation omitted); see also Steffani v. State, 45 Ariz. 210, 42 P.2d 615, 617 (1935) (explaining that motion to strike should be made to nonresponsive answer in order to preserve the right to claim error). … Kassebeer failed to move to strike the complainant's nonresponsive answer…. We also note that “responsiveness is not the ultimate test of admissibility” and that, “[i]f an unresponsive answer contains pertinent facts, it is nonetheless admissible; it is only when the unresponsive answer produces irrelevant, incompetent or otherwise inadmissible information that it should be stricken Here, the complainant's response further clarifies the conversation that occurred at the door of the residence between Hashimoto-Matautia and the complainant following the alleged sexual assault, the details of which Kassebeer had called into question in the context of whether the complainant had told Hashimoto-Matautia that she had been beaten or raped. The response was not irrelevant, incompetent, or otherwise inadmissible. Nevertheless, inasmuch as the circuit court impaired Kassebeer's right to confront the complainant and abused its discretion by sustaining the prosecution's “asked-and-answered” objection, the ICA erred in affirming the circuit court's judgment…. we vacate the ICA's and remand this matter for a new trial on the first degree sexual assault and kidnapping counts. Professor John Barkai, U.H. Law School Page - 58 STATE V. MARSH 68 Haw. 659, 728 P.2d 1301 (1986) [Robbery trial. The State's case rested primarily (1980). on the testimony of the victim, Leroy Ing. Marsh denied committing the robbery and asserted an alibi The rationale for the rule is that “[e]xpressions defense.] of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit During summation regarding Marsh's guilt, the the influence of the prosecutor's office and prosecutor repeatedly stated her personal opinion: undermine the objective detachment that should separate a lawyer from the cause being argued.” “Ladies and gentlemen, I feel it is very clear and I hope you are convinced, too, that the person ... Since defense counsel did not object to the who committed this crime was none other than prosecutor's remarks, we must determine whether Christina Marsh.” the prosecutor's misconduct constituted plain error which affected substantial rights of the defendant. And later: “I'm sure she committed the crime.” Hawaii Rules of Penal Procedure, Rule 52(b). Referring to Marsh's testimony, the prosecutor stated: “Use your common sense, ladies and We think the prosecutor's improper comments, gentlemen. That is not true. It's another lie. It's taken as a whole, substantially prejudiced Marsh's a lie, ladies and gentlemen, an out-and-out lie.” right to a fair trial. The pivotal issue was the credibility of the witnesses. The jury had to decide whether to believe the victim or the alibi witnesses. Regarding the alibi witnesses' credibility, the We cannot conclude beyond a reasonable doubt prosecutor said: “You should entirely disregard that the prosecutor's remarks had little likelihood of their testimony because, if you will remember, influencing this critical choice. ... every one of them lied on the stand.... I sincerely doubt if she [witness] had seen  We cannot accept the State's argument that Christina Marsh there.” the prejudicial impact of the remarks was rendered harmless by the trial court's instructions to the jury. Of another witness' testimony, the prosecutor The effect of the prosecutor's prejudicial conduct stated: “I find that awfully hard to believe.” here overcomes the presumption that the court's The prosecutor expressed on at least nine instructions to the jury rendered it harmless. Cf. occasions her belief that defense witnesses had State v. Kahalewai, 55 Haw. 127, 129, 516 P.2d 336, lied. 338 (1973). The trial court instructed the jurors several times that the arguments of counsel are not  Hawaii Code of Professional Responsibility evidence. However, the court was not requested to DR 7-106(C)(4) provides in part: In appearing in his and did not issue a specific instruction concerning professional capacity before a tribunal, a lawyer the prosecutor's closing comments. shall not ... [a]ssert his personal opinion as to the justness of a cause, as to the credibility of a In light of the inconclusive evidence against witness, ... or as to the guilt or innocence of an Marsh, the particularly egregious misconduct of the accused; but he may argue, on his analysis of the prosecutor in presenting her personal views on the evidence, for any position or conclusion with dispositive issues, and the lack of a prompt jury respect to the matters stated herein. Prosecutors are instruction specifically directed to the prosecutor's similarly bound to refrain from expressing their closing remarks, we hold that the prosecutor's personal views as to a defendant's guilt or credibility conduct so prejudiced Marsh's right to a fair trial as of witnesses. United States v. Young, 470 U.S. 1, to amount to “plain error.” The conviction is 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); ABA reversed and the case is remanded for a new trial. Standards for Criminal Justice, Standard 3-5.8 Professor John Barkai, U.H. Law School Page - 59 STATE V. RULONA 71 Haw. 127, 785 P.2d 615 (1990) [JB: The form of the cross examination questions used by the prosecutor in examining a defense witness about a conversation between the prosecutor and the witness outside of court, made those questions an assertion of the prosecutor's personal knowledge of the facts in issue with respect to that conversation. It was error for the judge to refuse to stop this line of questioning. Reversed and remanded.] The prosecutrix was permitted, over objection, to in a peculiar and very definite sense the servant of the conduct a lengthy cross-examination as to an alleged law, the twofold aim of which is that guilt shall not conversation between herself and [a defense] witness. escape or innocence suffer. He may prosecute with Q. Okay. And do you remember indicating to me that earnestness and vigor-- indeed, he should do so. But, it was a difficult situation-- while he may strike hard blows, he is not at liberty to A. What's that? strike foul ones. It is as much his duty to refrain from Q. Isn't it true that you did indicate to me that it was a improper methods calculated to produce a wrongful difficult situation, that it was hard? conviction as it is to use every legitimate means to bring A. I can't remember. about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these By asking the questions in this form, the prosecutrix put obligations, which so plainly rest upon the prosecuting before the jury her version of what was said in that attorney, will be faithfully observed. Consequently, conversation. ... improper suggestions, insinuations, and especially, Disciplinary Rule (DR) 7-106(C)(3) provides: (C) assertions of personal knowledge are apt to carry much In appearing in his professional capacity before a weight against the accused when they should properly tribunal, a lawyer shall not: .... (3) Assert his personal carry none. It was error for the court below to refuse to knowledge of the facts in issue, except when testifying stop the prejudicial line of examination concerning the as a witness. out-of-court conversation between the prosecut[or] and As is stated in Ethical Consideration (EC) 7-13: The the [defense] witness ... responsibility of a public prosecutor differs from that of Because of the errors below, the appellant simply did the usual advocate; his duty is to seek justice, not not receive a fair trial, and the judgment entered must be merely to convict. Over 50 years ago in Berger v. reversed and a new trial held. Reversed and remanded. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Supreme Court of the United States, faced HAWAII RULES OF PROFESSIONAL with a claim of error resulting from a similar line of CONDUCT (1994) questioning, stated: That the United States prosecuting RULE 3.7 LAWYER AS WITNESS attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such (a) A lawyer shall not act as advocate at a trial an officer in the prosecution of a criminal offense is in which the lawyer is likely to be a necessary clearly shown by the record. He was guilty of ... witness except where: suggesting by his questions that statements had been (1) the testimony relates to an uncontested made to him personally out of court, in respect of which issue; no proof was offered. ... (2) the testimony relates to the nature and value of legal services rendered in the case; or The Supreme Court went on to state in that case: (3) disqualification of the lawyer would work The United States Attorney is the representative not of substantial hardship on the client. an ordinary party to a controversy, but of a sovereignty (b) A lawyer may act as advocate in a trial in whose obligation to govern impartially is as compelling which another lawyer in the lawyer's firm is likely as its obligation to govern at all; and whose interest, to be called as a witness unless precluded from therefore, in a criminal prosecution is not that it shall doing so by Rule 1.7 or Rule 1.9. win a case, but that justice shall be done. As such, he is Professor John Barkai, U.H. Law School Page - 60 RULE 606. COMPETENCY OF JUROR AS WITNESS HAWAII FEDERAL – Before “restyled” FRE 606(b) was amended in 2006 (a) At the trial. A member of the jury may not testify as a witness before (a) At the trial. A member of the jury may not testify as a witness that jury in the trial of the case in which the member is sitting as a juror. before that jury in the trial of the case in which the juror is sitting. If the [similar] juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. [similar] (b) Inquiry into validity of verdict or indictment. Upon an inquiry into (b) Inquiry into validity of verdict or indictment. Upon an inquiry the validity of a verdict or indictment, a juror may not testify into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to concerning the EFFECT of anything upon the juror's or any other juror's the effect of anything upon that or any other juror's mind or emotions mind or emotions as influencing the juror to assent to or dissent from the as influencing the juror to assent to or dissent from the verdict or verdict or indictment or indictment or concerning the juror's mental processes in connection therewith. concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether EXTRANEOUS PREJUDICIAL INFORMATION was improperly brought to the jury's attention, (2) whether any OUTSIDE INFLUENCE was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. Nor may the juror's affidavit or evidence of any statement by the juror A juror's affidavit or evidence of any statement by the juror may not indicating an effect of this kind be received. be received on a matter about which the juror would be precluded from testifying. Professor John Barkai, U.H. Law School Page - 61 BAKER V. STATE, 35 Md.App. 593, 371 A.2d 699 (1977) REFRESHING RECOLLECTION This appeal addresses the intriguing question of appellant's counsel sought to use the report primarily to what latitude a judge should permit counsel when a refresh the recollection of Officer Bolton and that he witness takes the stand and says, “I don't remember.” was consistently and effectively thwarted in that What are the available keys that may unlock the attempt: testimonial treasure vaults of the subconscious? What BY MR. HARLAN: are the brush strokes that may be employed “to retouch Q. Do you have the report filed by Officer Hucke the fading daguerreotype of memory?” The subject is and Officer Saclolo or Saclolo? that of Present Recollection Revived. A. Right, I have copies. Q. Okay. MR. DOORY: I would object to that, The appellant, Teretha McNeil Baker, was Your Honor. convicted by a Baltimore City jury of both murder in THE COURT: I will sustain the objection. This is the first degree and robbery. Although she raises two not his report. appellate contentions, the only one which we find it BY MR. HARLAN: necessary to consider is her claim that the trial judge Q. Can you look at this report and refresh your erroneously refused her the opportunity to refresh the recollection as to whether or not you ever had the present recollection of a police witness by showing victim in a confrontation with Mrs. Baker? him a report written by a fellow officer. MR. DOORY: Objection, Your Honor. MR. HARLAN: He can refresh- The ultimate source of most of the evidence THE COURT: Well, he can refresh his recollection implicating the appellant was the robbery and murder as to his personal knowledge. That's all right. victim himself, Gaither Martin, a now-dead declarant A. That is what I am saying, I don't know who it who spoke to the jury through the hearsay conduit of was that we confronted really. Officer Bolton. When Officer Bolton arrived at the BY MR. HARLAN: crime scene, the victim told him that he had “picked Q. All right. Would you consult your report and these three ladies up . . . at the New Deal Bar; that maybe it will refresh your recollection. when he took them to their stated destination, a man THE COURT: I think the response is he doesn't walked up to the car and pulled him out; that “the other know who- three got out and proceeded to kick him and beat him.” MR. HARLAN: He can refresh his recollection if It was the assertion made by the victim to the officer he looks at the report. that established that his money, wallet and keys had THE COURT: He can't refresh his recollection been taken. The critical impasse, for present purposes, from someone else's report, Mr. Harlan. occurred when the officer was questioned, on MR. HARLAN: I would object, Your Honor. cross- examination, about what happened en route to Absolutely he can. the hospital. The officer had received a call from THE COURT: You might object, but- Officer Hucke, of the Western District, apparently to MR. HARLAN: You are not going to permit the the effect that a suspect had been picked up. Before officer to refresh his recollection from the police proceeding to the hospital, Officer Bolton took the report? victim to the place where Officer Hucke was holding THE COURT: No. It is not his report. the appellant. The appellant, as part of this MR. HARLAN: Your Honor, I think I am cross-examination, sought to elicit from the officer the absolutely within my rights to have a police officer fact that the crime victim confronted the appellant and read a report which mentions his name in it to see if stated that the appellant was not one of those persons it refreshes his recollection. If it doesn't refresh his who had attacked and robbed him. To stimulate the recollection, then fine. present memory of Officer Bolton, appellant's counsel THE COURT: Well, he did that. attempted to show him the police report relating to that MR. HARLAN: You have not afforded him the confrontating and prepared by Officer Hucke. opportunity to do that yet, Your Honor. THE COURT: He says he does not know who it The record establishes loudly and clearly that was before. So, he can't refresh his recollection if Professor John Barkai, U.H. Law School Page - 62 he does not know simply because someone else put prepared by Officer Bolton himself or had been read some name in there. by him and that he can now say that at that time he MR. HARLAN: He has to read it to see if it knew it was correct. Absent such a showing, the trial refreshes his recollection, Your Honor. judge would have been correct in declining to receive THE COURT: We are reading from a report made it in evidence. by two other officers which is not the personal knowledge of this officer. When dealing with an instance of Past Recollection MR. HARLAN: I don't want him to read from that Recorded, the reason for the rigorous standards of report. I want him to read it and see if it refreshes admissibility is quite clear. Those standards exist to his recollection.” test the competence of the report or document in question. Since the piece of paper itself, in effect, On so critical an issue as possible exculpation from speaks to the jury, the piece of paper must pass muster the very lips of the crime victim, appellant was entitled in terms of its evidentiary competence. to try to refresh the memory of the key police witness. She was erroneously and prejudicially denied that Not so with Present Recollection Revived! By opportunity. The reason for the error is transparent. marked contrast to Past Recollection Recorded, no Because they both arise from the common seedbed of such testimonial competence is demanded of a mere failed memory and because of their hauntingly parallel stimulus to present recollection, for the stimulus itself verbal rhythms and grammatical structures, there is a is never evidence. Notwithstanding the surface beguiling temptation to overanalogize Present similarity between the two phenomena, the difference Recollection Revived and Past Recollection Recorded. between them could not be more basic. It is the It is a temptation, however, that must be resisted. The difference between evidence and non -evidence. Of trial judge in this case erroneously measured the such mere stimuli or memory-prods, McCormick says, legitimacy of the effort to revive present recollection at 18, “(T)he cardinal rule is that they are not evidence, against the more rigorous standards for the but only aids in the giving of evidence.” When we are admissibility of a recordation of past memory. dealing with an instance of Present Recollection Revived, the only source of evidence is the testimony It is, of course, hornbook law that when a party of the witness himself. The stimulus may have jogged seeks to introduce a record of past recollection, he the witness's dormant memory, but the stimulus itself is must establish 1) that the record was made by or not received in evidence. Dean McCormick makes it adopted by the witness at a time when the witness did clear that even when the stimulus is a writing, when the have a recollection of the event and 2) that the witness witness 'speaks from a memory thus revived, his can presently vouch for the fact that when the record testimony is what he says, not the writing.” Id., at 15. was made or adopted by him, he knew that it was McCormick describes the psychologists phenomenon accurate... McCormick, Law of Evidence (1st Ed., in the following terms: 1954), describes the criteria, at 15: It is abundantly clear from every-day observation Appropriate safeguarding rules have been that the latent memory of an experience may be developed for this latter kind of memoranda, revived by an image seen, or a statement read or requiring that they must have been written by the heard. It is a part of the group of phenomena which witness or examined and found correct by him, and the classical psychologists have called the law of that they must have been prepared so promptly after association. The recall of any part of a past the events recorded that these must have been fresh experience tends to bring with it the other parts that in the mind of the witness when the record was were in the same field of awareness, and a new made or examined and verified by him. We have experience tends to stimulate the recall of other like treated such memoranda separately, as an exception experiences.' Id., at 14. to the hearsay rule. The psychological community is in full agreement Had the appellant herein sought to offer the police with the legal community in assessing the mental report as a record of past recollection on the part of phenomenon. See Cairn, Law and the Social Sciences Officer Bolton, it is elementary that she would have 200 (1935): had to show, inter alia, that the report had either been In permitting a witness to refresh his recollection by Professor John Barkai, U.H. Law School Page - 63 consulting a memorandum, the courts are in accord contemporaneously with or shortly after the incident in with present psychological knowledge. A question, and need not even be necessarily accurate. distinction is drawn, in the analysis of the memory The competence of the writing is not in issue for the process, between recall, which is the reproduction writing is not offered as evidence but is only used as a of what has been learned, and recognition, which is memory aid.... recall with a time-factor added, or an awareness that the recall relates to past experience. It is with When the writing in question is to be utilized recognition that the law is principally concerned in simply “to awaken a slumbering recollection of an permitting a witness to revive his recollection. The event” in the mind of the witness, the writing may be psychological evidence is clear that in thus a memorandum made by the witness himself, 1) even if allowing to be brought to mind what has been it was not made immediately after the event, 2) even if forgotten, the law is following sound psychological it was not made of firsthand knowledge and 3) even if procedure.'... the witness cannot now vouch for the fact that it was accurate when made. It was be a memorandum made The catalytic agent or memory stimulator is put by one other than the witness, even if never before read aside, once it has worked its psychological magic, and by the witness or vouched for by him. It may be an the witness then testifies on the basis of the Associated Press account. It may be a highly selective now-refreshed memory. The opposing party, of course, version of the incident at the hands of a Hemingway or has the right to inspect the memory aid, be it a writing an Eliot. All that is required is that it ignite the flash or otherwise, and even to show it to the jury. This of accurate recall-that it accomplish the revival which examination, however, is not for the purpose of testing is sought. the competence of the memory aid (for competence is immaterial where the thing in question is not evidence) McCormick wrote to just such effect: “[I]t is but only to test whether the witness's memory has in probable that most courts today when faced with the truth been refreshed. As McCormick warns, “But the clear distinction between the two uses of the witness must swear that he is genuinely refreshed. . . . memoranda, will adhere to the “classical” view that And he cannot be allowed to read the writing in the any memorandum or other object may be used as a guise of refreshment, as a cloak for getting in evidence stimulus to present memory, without restriction by rule an inadmissible document.” One of the most thorough as to authorship, guaranty of correctness, or time of reviews of this aspect of evidence law is found in making.” United States v. Riccardi, 174 F.2d 883 (3rd Cir., 1949), where the court said at 888: The Texas dean is in good company, for no less In the case of present recollection revived, the eminent an authority than Lord Ellenborough said in witness, by hypothesis, relates his present Henry v. Lee, 2 Chitty 124, 125 (1810): recollection, and under oath and subject to If upon looking at any document he can so far cross- examination asserts that it is true; his refresh his memory as to recollect a circumstance, capacities for memory and perception may be it is sufficient; and it makes no difference that the attacked and tested; his determination to tell the memorandum is not written by himself, for it is not truth investigated and revealed; protestations of the memorandum that is the evidence but the lack of memory, which escape criticism and indeed recollection of the witness.' constitute a refuge in the situation of past recollection recorded, merely undermine the Not only may the writing to be used as a memory probative worth of his testimony. aid fall short of the rigorous standards of competence required of a record of past recollection, the memory In solid accord with both the psychological aid itself need not even be a writing. What may it be? sciences and the general common law of evidence, It may be anything. It may be a line from Kipling or Maryland has long established it that even when a the dolorous refrain of “The Tennessee Waltz”; a whiff writing of some sort is the implement used to stir the of hickory smoke; the running of the fingers across a embers of cooling memory, the writing need not be that swatch of corduroy; the sweet carbonation of a of the forgetful witness himself, need not have been chocolate soda; the sight of a faded snapshot in a adopted by him, need not have been made long-neglected album. All that is required is that it Professor John Barkai, U.H. Law School Page - 64 may trigger the Proustian moment. It may be anything phenomenon unto itself but only an instance of a far which produces the desired testimonial prelude, “It all broader phenomenon. In a more conventional mode, comes back to me now.” the process might proceed, “Your Honor, I am about to show the witness a written report, ask him to read it and Of just such possibilities did Learned Hand speak then inquire if he can now testify from his own memory in United States v. Rappy, 157 F.2d 964, 967 (2d Cir. thus refreshed.” In a far less conventional mode, the 1946): process could just as well proceed, “Your Honor, I am Anything may in fact revive a memory: a song, a pleased to present to the court Miss Rosa Ponselle who scent, a photograph, an allusion, even a past will now sing “Celeste Aida” for the witness, for that is statement known to be false. what was playing on the night the burglar came through the window.” Whether by conventional or The United States Court of Appeals for the Ninth unconventional means, precisely the same end is Circuit addressed the same issue in Jewett v. United sought. One is looking for the effective elixir to States, 15 F.2d 955 (1926), and concluded, at 956: revitalize dimming memory and make it live again in [I]t is quite immaterial by what means the memory the service of the search for truth. is quickened; it may be a song, or a face, or a newspaper item, or a writing of some character. It Even in the more conventional mode, it is quite is sufficient that by some material operation, clear that in this case the appropriate effort of the however mysterious, the memory is stimulated to appellant to jog the arguably dormant memory of the recall the event, for when so set in motion it key police witness on a vital issue was unduly and functions quite independently of the actuating prejudicially restricted. cause.' Reversed; Remanded Jerome Frank in Fanelli v. United States Gypsum Co., 141 F.2d 216, 217 (2d Cir. 1944), put it in these terms: Common experience, the work of Proust and other keenly observant literary men, and recondite psychological research, all teach us that memory of things long past can be accurately restored in all sorts of ways. The creaking of a hinge, the whistling of a tune, the small of seaweed, the sight of an old photograph, the taste of nutmeg, the touch of a piece of canvas, may bring vividly to the foreground (of) consciousness the recollection of events that happened years ago and which would otherwise have been forgotten. . . . The memory-prodder may itself lack meaning to other persons as a symbol of the past event, as everyone knows who has ever used a knot in his handkerchief as a reminder. Since the workings of the human memory still remain a major mystery after centuries of study, courts should hesitate before they glibly contrive dogmatic rules concerning the reliability of the ways of provoking it.' Although the use of a memorandum of some sort will continue quantitatively to dominate the field of refreshing recollection, we are better able to grasp the process conceptually if we appreciate that the use of a memorandum as a memory aid is not a legal Professor John Barkai, U.H. Law School Page - 65 State v. DiBenedetto, 80 Hawai'i 138, 906 P.2d 624 (1995) HRE 612 Defendant was convicted in the Circuit Court of the First Circuit, City and County of Honolulu, of driving under influence of intoxicating liquor and with noncompliance with speed limit. During cross-examination, Officer Hite testified, in part, as follows: Q. [ (Defense counsel) ] ... earlier you testified that you don't remember all the particulars of this field sobriety test that you refreshed your memory ... using this sheet and the other sheets that you filled out? A. [ (Officer Hite) ] Yes. .... Q. ... how big [was] the gap [between Defendant's heel and toe] on that fourth step ... [in the “horizontal walk and turn”]? A. I don't recall exactly the distance of the gap, no. Q. You don't recall the distance of the gap so you are basically testifying to that distance on that gap from ... this sheet of paper.... A. Yes. Q. Without memory of what actually happened? A. Yes. .... Q. ... is it fair to say that your memory as to what the actual events are is pretty cloudy ... what you have is memory of your recently reviewing this field sobriety test [document]? A. Yes. (Emphases added.) Defense counsel argued that the officer was not testifying from his “independent recollection” but “testifying off of the written [police] report” and moved to strike the officer's testimony. The court ruled that the matter was for the jury to determine. [Defense counsel]: Your Honor, it seems that he's not testify [sic] of his independent recollection of the night in question and I move to strike all of his testimony since he's not able to remember. He's just testifying off of the written report which I don't think satisfies the standard of admissible [sic] for evidence in the trial. [Deputy Prosecutor]: The State would argue that he said on the field sobriety test, he doesn't have a clear memory of all the facts of the field sobriety test and he says he does not [sic] have an independent recollection of the arrest of the speeding as well as talking to the defendant. THE COURT: All right. I note the objection for the record. It's for the jury to make a determination on that basis. I think that's entirely appropriate for the jury to determine this initial testimony. … On appeal, Defendant contends as error that (1) the arresting police officer lacked a present recollection “as to material matters” in his testimony… Although defense counsel incorrectly asked the officer if he had an “independent recollection” of the field test rather than “a present recollection” of the test, the officer's candid testimony leads us to the conclusion that the officer did not have a “present recollection” of the test at the time he testified. Professor John Barkai, U.H. Law School Page - 66 As set forth supra, the officer indicated that his testimony was based on what he had recently read in his report. Thus, we are left with the question of whether the court erred in failing to strike Officer Hite's testimony regarding the field sobriety test. [Focusing on HRE 612]… When used to refresh the witness's present recollection, a writing is solely employed to jog the memory of the testifying witness... Accordingly, when a writing is used to refresh a witness's recollection, the witness should testify from “a memory thus revived,” resulting in testimony from present recollection, not a memory of the writing itself. Id. “A witness'[s] recollection must be revived after he [or she] consults the particular writing or object offered as a stimulus so that ... [the] resulting testimony relates to a present recollection.” …If the writing fails to rekindle the witness's memory, the witness cannot be permitted to testify as to the contents of the writing unless the writing is otherwise admitted into evidence. …[citing various sources] On redirect examination, the State did not attempt to establish that Officer Hite was in fact testifying from present recollection. But the court declined to rule on Defendant's motion to strike, treating the issue as one for the jury to determine. The question of whether Officer Hite was properly allowed to testify about the field sobriety test was not a question of credibility for the jury to decide, as the State maintains, but one of admissibility for the judge to determine. HRE Rule 104 mandates that “[p]reliminary questions concerning the qualification of a person to be a witness ... or the admissibility of evidence shall be determined by the court [.]” (Emphasis added.) HRE Rule 601 provides that “[e]very person is competent to be a witness except as otherwise provided in [the HRE].” In that connection, HRE Rule 602 declares that a “witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may ... consist of the witness's own testimony....” “Personal knowledge” of a witness, under HRE Rule 602, “means that the witness perceived the event about which [the witness] testifies and [the witness] has a present recollection of that perception.” Commentary to HRE Rule 602 (1993) (emphasis added). Thus, the question of whether the evidence was sufficient to support a finding that Officer Hite had a present recollection of the field sobriety test was to be determined by the court as a question of the officer's qualifications to testify as a witness on that matter. The standard of review on appeals from evidentiary rulings depends on the particular rule of evidence at issue. …. Errors on evidentiary rulings are subject to the abuse of discretion standard unless the application of the rule can produce only one correct answer, in which case, then, the review falls under a “right/wrong standard.”… Because a witness cannot be permitted to testify if the witness has no present recollection, there can be only one correct answer to the question of whether the witness had a present recollection of the material events after reviewing the writing and setting it aside. Consequently, we apply the “right/wrong” standard in determining the correctness of a ruling that the witness's attempt to refresh his or her memory resulted in a present recollection of the subject events. Based on our review of the officer's testimony, we conclude that the court's ruling was wrong, and the officer's testimony relating to the field sobriety test should have been stricken and the jury instructed to disregard such testimony. … As the foregoing indicates, Officer Hite's testimony about the field sobriety test should not have been considered in determining guilt [but the case was affirmed for other reasons]. Professor John Barkai, U.H. Law School Page - 67 TOLEDO v. LAM 67 Haw. 20, 675 P.2d 773 (1984) R 612 The petitioner was the defendant in a preliminary hearing on a charge of murder. ... Petitioner's third claim is that her counsel was denied the right to cross- examine effectively Detective Yamashita who testified during the preliminary hearing with respect to a lengthy recorded statement of the defendant taken by him. On cross-examination, Yamashita stated that he had used that statement, which had been transcribed, to refresh his recollection before testifying. Counsel for petitioner then asked for the statement to be produced and the court denied that request.  In State v. Faafiti, 54 Haw. 637, 513 P.2d 697 (1973), in a footnote, we advised district judges to permit counsel for the defendant at a preliminary hearing to cross-examine fully and thoroughly the State's witnesses. Normally, a cross-examination cannot be full and thorough unless counsel is permitted access to the witness' previous statements on the matters on which the witness is testifying and the documents which the witness has used to refresh his or her memory before testifying. Compare HRE Rule 612.  We are not here dealing with discovery pursuant to HRPP Rule 16, which can commence only upon the filing in the circuit court of an indictment or a complaint. We are instead dealing with the defendant's right to have his or her counsel effectively cross-examine the State's witnesses. The matter is one within the discretion of the district judge, and there may arise instances in which, in the district judge's discretion, disclosure of such matters is not required. Normally, however, such disclosure will be necessary to the exercise of the right of effective cross-examination. Moreover, since such disclosure will usually have to be made by the State under HRPP Rule 16 once an indictment or a complaint has been filed in circuit court, the prejudice to the State's position by disclosure **776 at the preliminary hearing appears either minimal or non-existent. Indeed, the withholding of such matters by the State *23 may well prevent its later use of the witness' preliminary hearing testimony if the witness is unavailable at trial.  In our view, therefore, the refusal to require the disclosure of the petitioner's statement given to the police, which the witness used to refresh his recollection, was wrong. While we decline to issue an extraordinary writ in this case, we trust that on a resumption of the preliminary hearing, the district judge will take into account the views we have here expressed. Petition dismissed. The Jencks Act 18 U.S.C. § 3500 “In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.” Professor John Barkai, U.H. Law School Page - 68 STATE V. LEONG 51 Haw. 581, 465 P.2d 560 (1970) pre R 615 ABE, Justice. and drilling or rehearsing them; or by informing a On July 26, 1968, two police officers saw defendant witness as to testimony of other witnesses by notes, tape Emmett Leong get into a car driven by Eugene Kim and recording or other means. when the car stopped at an intersection, the police The Hawaii Constitution, Art. I, s 11, provides that: immediately pulled up behind to arrest defendant under 'In all criminal prosecutions, the accused shall enjoy the warrants of arrest. As one of the officers alighted from right * * * to have compulsory process for obtaining the police car, he saw defendant move his right hand, witnesses in his favor * * *.'[FN2] What right of an then saw an object fall through the window on the side accused is protected by the provision? To hold that the where defendant was sitting. Defendant was arrested. provision merely gives an accused the right to the The object, when recovered, was found to be a piece issuance of subpoenas to compel attendance of of rubber with three gelatin capsules containing heroin. witnesses who may testify in his favor, but that it does Both defendant and Kim, known by the police as users not entitle an accused to the testimony of witnesses so of heroin, were charged with unlawful possession of subpoenaed because of their actions or behavior in court, narcotics. Later, Kim was released for lack of evidence. we believe, would make this right hollow and During defendant's trial before a jury, the court worthless.... refused to allow defense witness Edmund Conchee to  The general principle of law is that in construing testify. Defendant was found guilty of the offense of constitutional provisions guaranteeing fundamental unlawful possession of narcotics and was sentenced to rights, they are to be liberally construed so that the 10 years' imprisonment. Defendant appealed. purpose to be attained, or the evil to be remedied, is Defendant contends that the trial court's refusal to accomplished. allow defense witness Edmund Conchee to testify ... because of his presence in the courtroom during the trial  We have no doubt that the compulsory process was prejudicial error. provision in the Hawaii Constitution, Art. I, s 11, was The record shows that at the inception of the trial the intended to guarantee an accused the right to have court ordered that: '* * * any person in the courtroom witnesses testify in his favor. Thus, we hold that the trial who may be a witness in this case must leave the court erred in refusing to permit a defense witness to courtroom and wait outside until called to testify. If he testify, under an order excluding witnesses from the stays in the courtroom, then he will not be permitted to courtroom, because by so doing it denied defendant this testify later on.' constitutional right to have witnesses testify in his favor. After defendant had testified, his counsel called In People v. Duane, 21 Cal.2d 71, 130 P.2d 123 Edmund Conchee to testify. The State objected on the (1942), the California Supreme Court at page 128 said: ground that Conchee had been in the courtroom and had 'There can be no doubt that the court committed error in heard the testimony of other witnesses. The trial court refusing to permit Mrs. Leep to testify. The violation by sustained the objection and refused to permit Conchee to a witness of an order excluding witnesses from the testify, invoking the above- mentioned order. courtroom does not make such witness incompetent nor I. Order Excluding Witness furnish grounds for a refusal to permit him to testify.  The purpose for the order excluding a witness The proper recourse is contempt proceedings against the from a courtroom is to prevent him from listening to witness.' testimony of other witnesses and then 'shaping' or  We agree with the California court that the proper fabricating his testimony accordingly...It would appear recourse against a witness who violates an order that this may not be a very sound reason because there excluding witnesses should be by contempt proceeding are other ways in which testimonies may be 'shaped' or for such conduct. Also, that such conduct of a witness fabricated.[FN1] However, even accepting the affects his credibility, but it should not be used to soundness of the reason for the rule on its face value, we disqualify him as a witness for a defendant in a criminal hold that the trial court erred in invoking the order to case because as we stated above an accused has the prevent a defense witness from testifying in this case. constitutional right to have witnesses testify in his favor. *** FN1. E. g., by getting all witnesses together Reversed and remanded for a new trial. Professor John Barkai, U.H. Law School Page - 69 STATE V. ELMALEH 7 Haw.App. 488, 782 P.2d 886 (1989) R 615 Defendant was convicted of robbery in the second degree. Defendant appealed. The Intermediate Court of Appeals, Tanaka, J., held that: (1) violation of a sequestration of witnesses order committed by the State was harmless ... Affirmed. Before BURNS, C.J., and HEEN and TANAKA, JJ. TANAKA, Judge. Defendant Judah Elmaleh (Defendant) appeals his conviction by a jury of Robbery. Defendant contends that (1) the trial court abused its discretion in denying his motion for mistrial or to strike the testimony of the complaining witness, Mia Marie Reuther (Reuther), because the State of Hawaii (State) violated the witness exclusion or sequestration rule... We affirm. [FACTS: during a recess in the arresting officer's testimony (between direct and cross examination) the prosecutor talked with the officer in the presence of the complaining witness who had not yet testified. It was not clear from the trial record whether R 615 had been invoked.] ... Honolulu Police Officer Robert Hoopii, Jr. (Officer Hoopii) arrested Defendant for robbery after Reuther informed him that Defendant had forcibly taken $155 from her. On the first day of the jury trial, the State completed its direct examination of Officer Hoopii. The next morning, after completion of Officer Hoopii's testimony, the State called Reuther as a witness. During her cross-examination, Reuther stated that before the court session began that morning she met the prosecuting attorney and Officer Hoopii in the witness room. Reuther testified as follows: Q. [By defense counsel] [Y]ou're telling me that you were sitting in a room with Officer Hoopii and Ms. Tamashiro [the deputy prosecuting attorney] and you were discussing Officer Hoopii's testimony? A. Miss Tamashiro was reviewing with [O]fficer Hoopii and asking him some questions to get I guess her fresh on what he was saying or whatever. And I had a word or two. Q. But you heard the whole conversation between Ms. Tamashiro and [O]fficer Hoopii? A. While they were in the room, I heard the whole conversation. Q. She didn't ask you to leave? A. No. At this point, Defendant did not raise any objection of a possible violation of a witness exclusion or sequestration order. However, on the next day after both parties had rested and jury instructions had been settled in chambers, Defendant moved for a mistrial on the ground that the prosecuting attorney's discussion with Officer Hoopii concerning his testimony in the presence of Reuther violated “the spirit and intent” of the witness exclusion rule. After the motion was denied, Defendant moved to strike Reuther's testimony. The motion to strike was also denied. After the jury returned a guilty verdict, Defendant filed a motion for a new trial and a motion for judgment of acquittal. Both motions were denied. Defendant's timely appeal followed his sentencing. Hawaii Rules of Evidence (HRE) Rule 615 provides in relevant part that “[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion.” HRE Rule 615 is identical with Rule 615 of the Federal Rules of Evidence. Therefore, we will refer to federal case law for assistance in the construction and application of our Rule 615. Professor John Barkai, U.H. Law School Page - 70 Under HRE Rule 615, a witness sequestration order will issue upon a request of a party, which is “a matter of right.” The rule also allows the court to make an exclusion order on its own motion. Thus, the record of a case should reflect whether a party or the court invoked the rule. The record of this case, however, is silent regarding the invocation of the rule. There is no indication as to whether the State, Defendant, or the trial court invoked the rule and, if so, when it was invoked and what FN2 instructions the court gave the witnesses and the attorneys. The trial transcript indicates, however, that the parties and the trial court proceeded on the basis that HRE Rule 615 had been invoked. Consequently, we will consider the appeal on that basis. FN2. At the time Defendant moved for a mistrial, his attorney stated, “I believe that the exclusionary rule was invoked by this Court.” May 26, 1988 Transcript at 26. The trial transcript begins with the State's opening statement. Thus, if the trial court issued a witness exclusion order before the State's opening statement, it is not included in the record. Hereafter, if an issue on appeal involves HRE Rule 615 and the record on appeal does not include the facts as to who invoked the rule, when it was invoked, and what orders or instructions the trial court gave regarding witness sequestration, we will disregard that issue. B. The purpose of HRE Rule 615 is “to prevent the shaping of testimony by one witness to match that of another, and to discourage fabrication and collusion.”... Although the explicit wording of the rule provides for a court order merely excluding prospective witnesses from the courtroom, the federal courts have not countenanced the circumvention of the rule. [cites cases where (a prosecution witness spoke to two other witnesses about their testimony); (before testifying a government witness read the testimony of another witness from a prior mistrial); (an expert witness was provided with a transcript of another witness' prior testimony); (the prosecution's second witness discussed the first witness' testimony with him). Moreover, in United States v. Buchanan, supra, the court stated: A failure to instruct the witnesses fully after the Rule is invoked may cause reversal. The witnesses should be clearly directed, when the Rule is invoked, that they must all leave the courtroom (with the exceptions the Rule permits), and that they are not to discuss the case or what their testimony has been or would be or what occurs in the courtroom with anyone other than counsel for either side. See 3 Weinstein's Evidence 615-13. Counsel know, and are responsible to the court, not to cause any indirect violation of the Rule by themselves discussing what occurred in the courtroom with the witnesses. 787 F.2d at 485. Our trial courts should give the Buchanan instruction to witnesses when HRE Rule 615 is invoked and admonish counsel of their responsibilities thereunder. We disagree with the State's assertion that “there was no violation of the exclusionary [sic] rule,” and hold that what occurred in this case was a clear circumvention of HRE Rule 615. There was nothing wrong with the prosecuting attorney conferring with Officer Hoopii before the commencement of his cross-examination. However, Reuther should not have been permitted to be present at the conference where she overheard the entire conversation between the prosecuting attorney and Officer Hoopii and she “had a word or two.” C. Defendant claims that the State's violation of the HRE Rule 615 sequestration order required the trial court to declare a mistrial or strike Reuther's testimony. We disagree. The rule is silent regarding the appropriate penalty in case of noncompliance with a sequestration order. Professor John Barkai, U.H. Law School Page - 71 See Commentary to HRE Rule 615. However, the supreme court has stated that “the sanctions which a court chooses to attach to the violation of its [sequestration] order is a matter within the discretion of the court.” The general rule is that noncompliance with a sequestration order under HRE Rule 615 does not require a new trial “unless the court's decision to allow the allegedly tainted testimony was an abuse of discretion or resulted in prejudice to the defendant.” The defendant has the burden of proving that “there was either prejudice or an abuse of discretion.” Here, Defendant has failed to show that he was prejudiced or that the trial court abused its discretion. A review of the record discloses that Reuther did not shape her testimony to conform to that of Officer Hoopii. The inconsistencies in the testimony of those two witnesses which defense counsel highlighted to the jury in his opening statement remained after both witnesses testified. The jurors heard Reuther's testimony on cross-examination about the conference between the prosecuting attorney and Officer Hoopii in the presence of Reuther. Also, although the closing arguments to the jury were not transcribed, we may reasonably presume that defense counsel discussed the alleged connivance of the prosecuting attorney and the State witnesses which he unveiled through cross-examination. Accordingly, we hold that the violation of the sequestration order under HRE Rule 615 was harmless and the trial court did not abuse its discretion in denying Defendant's motion for mistrial and motion to strike Reuther's testimony.... Affirmed. Professor John Barkai, U.H. Law School Page - 72 WITNESS EXAMINATION PROBLEMS 1A Margaret Boyd, the school crossing guard, is asked, “Tell us whether or not the truck was going 40 m.p.h, at the time it turned left onto First.” Should an objection for a leading question be sustained? Why or why not? 2A After testifying that the truck was turning left when Billy Boy entered the crosswalk, Margaret Boyd is now asked, “What was the color of the traffic light controlling traffic on Main when Billy Boy entered the crosswalk?” Should an objection for a leading question be sustained? 3B When Charlie testifies in his own defense, his lawyer asks: “Charlie, you have lived in this community for ten years, right? Charlie says “Yes.” Then the lawyer asks, “You are currently employed at Institute Publishing Company in the shipping department, isn't that correct?' Should an objection for a leading question be sustained to either question? 4B Charlie calls Mabel to the witness stand. Three months after the fight at the Ace Bar and Grill, Mable moved in with Big Ed. They are still living together at the time of trial. Charlie's counsel begins his examination of Mabel with pointed leading questions. The attorney for the government objects. Discuss how this situation should be handled. 5B On cross-examination of Mabel, when the government lawyer asks a leading question, Charlie objects. Discuss how this objection should be handled. 6A When Billy Boy is asked on direct examination about the time of day of the accident, he states that it was 1:00 p.m. (instead of 4:00 p.m). As counsel for Billy Boy, what options are available to you to correct this error? 7. In the Hawaii Liquor Commission we used for witness examination, refresh Officer Bier's memory from his report, assuming that Bier forgets that Watkins stumbled crossing 7th Street. Prepare questions to refresh the memory in class. Is this a hearsay problem? You probably don't know yet. But it's not hearsay!! I'll explain why. 8B The government calls Harry the bartender. When asked to describe the events leading up to the stabbing, Harry states, “I can't remember. All I know is Big Ed was stabbed. I don't know nothing else.” A police report prepared by the arresting officer on the scene contains a statement that Harry told the officer he (Harry) saw Charlie stab Big Ed. As counsel for the government, attempt to refresh Harry's recollection. Prepare questions to refresh the memory in class. 9B Sheila is a prosecution witness against Charlie. Although she was present on the first day of trial when the judge told all witnesses to remain in the hall until called to testify, she forgot and sat in the courtroom on the morning of the second day of the trial. Her presence was not discovered by a lawyer for either side until she was called to testify that afternoon. Charlie now objects to Sheila testifying at all. As the trial judge, discuss your options for this situation and give us your most thoughtful ruling. Professor John Barkai, U.H. Law School Page - 73 WITNESS EXAMINATION SIMULATION Professor John Barkai, U.H. Law School Page - 74 DIRECT EXAMINATION The purpose of direct examination is to prove all of the necessary factual elements to establish a prima facie case for your client's claim. This is done by presenting the relevant witness testimony and exhibits favorable to your theory of the case. If you can't prove a prima facie case, the trial judge can direct a verdict against your client. HELPFUL SUGGESTIONS FOR DIRECT EXAMINATION -Prepare an outline of the key facts each witness will testify to. Organize the key facts in a logical, coherent manner either chronologically or topically in a narrative form. Organize your direct examination so it is brief and simple. Questions you ask of any witness should be short, clear and direct. Use short, simple action words in your questions. Use language that can be understood by any person. The witness is there to tell a specific story, so use open-ended questions to allow the witness to freely tell the facts in their own words. Emphasize the details of critical and crucial testimony. Control the pace of the testimony. Sometimes you will use many minutes of testimony to cover just a few seconds of real-time action. Move the direct examination along at a brisk pace. When you come to the point of critical testimony, slow down the tempo so that important details and facts are clearly and directly understood in the witness testimony. Use topical sentences to announce the transition of the testimony to another topic, (i.e. “Let me now ask you some questions about what happened inside the store.”) Listen to the witness' answer. Don't be reading your next question when you should be listening. Whenever possible, use diagrams, charts, exhibits, or any other visual evidence to tie in with the witness's testimony. When it is appropriate and relevant, bring out any harmful matter on direct examination. Minimize your weaknesses before the cross examiner exposes them. Professor John Barkai, U.H. Law School Page - 75 If a witness can't recall important facts, help to refresh the witness's memory with supporting documentary evidence to recall those facts. Or, ask a leading question, but expect the witness' credibility to slip. End strong. Plan the conclusion of each witness's testimony to end with an important question and answer. When you are through with the witness, STOP. (i.e. “I have no further questions.”) If you have no further questions and opposing counsel has finished with cross examination, excuse the witness. If there is a real need for redirect examination, be brief. The primary purpose of redirect examination is to rehabilitate the witness by allowing the witness to clarify or explain any inconsistent matters raised by cross examination. If you can't hear a witness, ask the witness to talk loudly and clearly so that the jurors can hear the testimony. THE DON'Ts Don't ask leading questions on direct. (Do ask leading questions on cross). Don't start your questions with distracting mannerisms such as “I see,” “OK,” etc. Don't use complex, technical, or overly formal language. Make your questions understandable. Use “after,” not “subsequent.” Use “got out of your car,” not “exited your vehicle.” Don't interrupt the witness's answer to a question. Allow the witness to finish answering the question before asking another. Don't ask irrelevant questions. Get to the point. A simple organization for direct examination is: Who am I? When did I know what I know? Where was I when I first knew of it? How or why do I know what I know? What do I know? Conclusion Another approach: Who am I? When did it happen? Where did it happen? Where was I when it happened? What happened? How did it happen? Conclusion Professor John Barkai, U.H. Law School Page - 76 CROSS EXAMINATION First ask yourself whether you should cross examine a particular witness or not. Consider the goal to be accomplished by your cross examination. Affirmative purposes of cross examination should be to elicit and stress by repetition the favorable portions of direct examination testimony or to develop new matters not covered on direct which are favorable to your theory of the case. A negative purpose is to meet unfavorable testimony and to conduct a destructive type cross examination to impeach the witness or show how the witness can be mistaken. Cross examination should accomplish either or both of these purposes. If it doesn't, why cross examine at all? Very often the best cross examination is no cross examination. In preparing for your cross examination, first make a list of the probable key facts you expect the witness to testify to. Next determine your purpose for cross examining each witness. Consider whether the witness is really all that important and relevant to the outcome of the case; whether the witness has substantially damaged your case and whether the witness's testimony is credible. Finally, you should assess your realistic expectations for your cross examination and what kinds of risk you need to take to achieve a successful cross examination of the witness. When you plan your cross, think about whether: 1. You have a prior statement from the witness which is favorable to your case. 2. The witness may testify on direct examination inconsistently with prior statements (oral or written statements, answers to interrogatories, depositions, or statements from another witness.) 3. You will have a more credible witness who will contradict this witness's testimony and present your theory of the case. 4. The testimony of this witness will not be consistent with common experience or with other external evidence presented. If you are going to confront unfavorable testimony by discrediting the witness, concentrate your questions on areas which will show that the witness may be mistaken, biased or prejudiced. If you are going to challenge a witness's testimony, ask questions that will demonstrate that the witness's testimony just doesn't make sense with common experience, is in conflict with other established facts of the case, or seems to be the produce of faulty perception, memory or communication. If you are going to impeach a witness, first get any favorable testimony that this witness can provide before going forward with your impeachment. Once you impeach, the witness will usually be hostile. Before impeaching the witness, have the witness repeat the inconsistent statements or testimony from the direct examination. You can repeat the answer in the very words the witness used to add dramatic effect. Then go forward with the impeachment questions. Once the witness has been impeached, STOP. Don't ask the witness if he or she is a liar. Professor Irving Younger in his lecture on “The Ten Commandments of Cross Examination” (available in the U.H. Law Library on video tape) suggests: Professor John Barkai, U.H. Law School Page - 77 1. Be brief. Don't try to make more than three points on cross examination. 2. Use short questions with plain words. 3. Never ask anything but leading and suggestive questions. 4. Never ask a question to which you don't know the answer. If you don't know, don't ask. 5. Listen to the answers given by the witness. 6. Don't quarrel with the witness. 7. Never permit the witness to repeat what was said on direct examination (unless you want it repeated). 8. Never permit the witness to explain anything away. 9. Avoid the “one too many” question. 10. Save the ultimate point for your closing argument. Note: In a civil case, the plaintiff can call an adverse party to the witness stand and ask leading questions like cross examination. Often the plaintiff will call the defendant. Professor John Barkai, U.H. Law School Page - 78 SOME COMMON LEGAL OBJECTIONS “Objection, your Honor,” Ambiguous Argumentative Assumes facts not in evidence Beyond the scope of direct examination Calls for a conclusion Calls for a narrative answer Calls for an opinion the witness is not qualified to give Confusing Cumulative Hearsay Immaterial. Incompetent Irrelevant Leading and suggestive of the answer Misleading Misstates the evidence Misstates the witness Multiple question No authentication No probative value No proper foundation Not the best evidence Not responsive to the question Prejudicial Privileged communication Repetitive Self-serving Speculative Vague and Ambiguous Professor John Barkai, U.H. Law School Page - 79 HAWAII LIQUOR COMMISSION v. JONES This case is a civil action brought by the Liquor Commission against Dan Jones and the Cut-Rate Liquor Store, for civil penalties, including possible revocation of Cut-Rate's liquor license. Investigator Bier is a typical investigator-police officer and has investigated many incidents. Bier's official report appears below. Dan Jones and the Cut-Rate Liquor Store deny that Watkins was intoxicated on the evening of April 5 when he was in their store. Jones says that Watkins did not appear to be intoxicated when he observed Watkins in the store. Watkins was convicted of public intoxication at a prior trial. Watkins is not present for this Cut-Rate case. 1. Prepare to do a direct examination of Officer Bier for the Corporation Counsel. 2. Prepare to do a cross examination of Officer Bier for the Defense. HAWAII LIQUOR COMMISSION OFFICIAL REPORT My partner Donald Smith and I are investigators for the Hawaii Liquor Commission. On the evening of April 5, at approximately 8:45 p.m., we were parked near the Cut-Rate Liquor Store when we observed an individual, later identified as Walter Watkins, attempting to cross 7th Street. Mr. Watkins was staggering and had great difficulty making it to the other side of the street. He stumbled and almost fell at the curb on the south side of 7th Street. He walked to the entrance of the Cut-Rate Liquor Store, and then paused for a few moments before he entered the store. The front of the store had a plate glass window with displays and advertising in it. From our car, we could see Mr. Watkins from the shoulders up through the window. We observed Mr. Watkins approach the counter and say a few words to the clerk, Dan Jones. A few minutes later, Watkins emerged from the store carrying a bottle of Thunderbird wine in a brown paper sack. I stopped Mr. Watkins as he exited the store. I detected the odor of alcohol and administered a field sobriety test. I then arrested Watkins and issued him a citation for public intoxication, seized the wine, and issued a citation to Dan Jones and the Cut-Rate Liquor store for violation of H.R.S. 281-78 which contains the following language: No licensee nor its employees shall sell or furnish any liquor to any person at the time under the influence of liquor. I have attached a diagram of the scene to this report. Date: April 5 Time: 22:15 (Signature) J. Bier Professor John Barkai, U.H. Law School Page - 80 Professor John Barkai, U.H. Law School Page - 81 HAWAII LIQUOR COMMISSION v. JONES* EVIDENTIARY PROBLEMS This assignment will focus on special evidentiary problems of witness examination, paying special attention to foundations, the introduction of exhibits, impeachment, and the use of prior statements. All this work will be done on the examination of Officer Bier from Hawaii Liquor Commission v. Jones. The facts are found in the prior one page handout. 1. On direct exam of Bier: a. Introduce the diagram from Bier's report. b. Introduce the bottle and bag seized from Watkins. c. Refresh Bier's memory from the report, assuming that Bier forgets that Watkins stumbled crossing 7th Street. Is this a hearsay problem? d. Assume that looking at the report does not refresh Bier's memory. Use the report to get the “stumbling” testimony into the trial. Is this a hearsay problem? e. Using a witness other than Bier, introduce the inventory records of Cut-Rate Liquor Store (witness to make up the necessary facts) which indicates that Cut-Rate had Thunderbird wine in the store inventory on March 31. f. Introduce a blackboard diagram of the scene similar to the diagram in Bier's report. g. Assuming the actual bottle was dropped and broken on the way to court, introduce a bottle similar to the one from Watkins. 2. On cross-exam of Bier by the attorney for Cute-Rate: a. Impeach Bier from the report, assuming Bier testified on direct exam: “I saw Watkins from the waist up inside the store.” b. Impeach Bier from the report, assuming Bier testified on direct exam: “As I was watching him inside the store, I saw that Watkins stumbled and almost fell as he approached the counter.” c. Impeach Bier, assuming that Bier was deposed under oath, and the deposition reads: Q: Now Officer Bier, how was Watkins walking when he was inside the store? A: I can't say for sure. I only saw him from the shoulders up when he was inside. d. Impeach Bier, assuming that although he testified on direct exam that “Watkins stumbled and almost fell inside the store,” he was overheard outside the courtroom to say that, “I never really saw Watkins stumble inside the store.” *The facts on this page should only be used for these evidentiary problems. DO NOT USE these facts when doing the direct and cross examination simulations. Professor John Barkai, U.H. Law School Page - 82 FOUNDATIONS AND IMPEACHMENT CLASS Here are some examples of foundations and impeachments. These should be useful when you do the small group exercises. Remember, these are just examples. Although you must comply with the rules of evidence when laying a foundation or impeaching, there are many different effective ways to accomplish these tasks. The lawyers teaching your small group sessions may have some other effective methods other than the ones presented in this handout. The point is not to just comply with the evidence rules. Lawyers want to be effective advocates and win cases. Many lawyers think that the best resource for foundations is the book Evidentiary Foundations by Edward Imwinkelried, (found in our library at KF 8935, Z9, I45). DIAGRAM Example (exhibit not to scale): Q. Mr. Doe, are you familiar with the intersection of North and Clark Streets? A. Yes, it’s a block from my house. Q. Are you familiar with that intersection as it looked on December 13 of last year? A. Yes. Step 1. Have exhibit marked. Step 2. Show exhibit to opposing counsel. Step 3. Ask permission to approach witness. Step 4. Show exhibit to witness. Step 5. Establish foundation: Q. I show you Plaintiff’s Exhibit #1 for identification purposes: Does that diagram fairly and accurately show the intersection of North and Clark Streets as it existed on December 13 of last year? A. Yes, sir. I’d say it does. Q. Would that diagram help you explain what happened? A. I think so. Step 6. Offer exhibit in evidence. Step 7. Have exhibit marked in evidence. Step 8. Have witness mark exhibit. Step 9. Ask permission to show exhibit to jury. Step 10. Show exhibit to jury. Professor John Barkai, U.H. Law School Page - 83 PHYSICAL EVIDENCE Q. Officer Wilson, I’m showing you what has been marked as State’s Exhibit #4 for identification purposes. Do you recognize it? A. Yes, I do. Q. What do you recognize it to be? A. That’s the gun I took from the defendant’s jacket pocket at the time I arrested him. Q. Officer Wilson, how do you know that’s the same gun? A. When I took the gun from the defendant, I scratched the date and my badge number on the handle. You can see the date 6/1 and my badge number 5627 on the wooden handle. In addition, I described the gun and recorded the serial number in my police report, and it matches this gun. Q. Is that gun, State’s Exhibit #4, in the same condition now as it was when you took it from the defendant? A. Yes. ******************* REFRESHING RECOLLECTION HRE 612 A police officer recovered a coat, shoes, and gun from the defendant’s house. These facts are all contained in his police report. Q. Did you remove anything from the defendant’s house? A. Yes, I did. Q. What items did you remove? A. Let’s see. . . . I got a coat from the closet and his shoes from a hallway. Q. Do you recall removing anything else? (The cue words.) A. No, that’s all I can remember. Q. Officer, would anything refresh your recollection? A. Yes. Q. What is that? A. I’m sure my report would. Q. Would the court clerk please mark this two-page report. (The court clerk marks report.) Q. I am now showing State Exhibit #1 to opposing counsel. (Shows report to defendant’s lawyer.) Q. Officer, I am handing you what has been marked State Exhibit #1, for identification purposes. Do you recognize it? A. Yes, that’s my report. Q. Please read it to yourself. (Witness reads report.) Q. Do you now remember the items you removed from the defendant’s house? A. Yes. I do. Q. May I have the report back, please. (Officer returns report.) Please tell us what those items were. A. Yes, sir. In addition to the coat and shoes, I recovered a revolver from a bedroom. Professor John Barkai, U.H. Law School Page - 84 PAST RECOLLECTION RECORDED HRE 802.1(4) Example: Witness has testified that he recorded the serial numbers of every automobile on a dealership lot on a certain date. Q. Mr. Doe, how many cars did you see on the lot that day? A. About 300. Q. Did each car have a serial number? A. Yes. Q. Can you tell the jury what the serial numbers on the cars were? A. No, sir. I can’t possibly remember them. Q. Did you make any record of those serial numbers? A. Yes, sir, I made a list. Q. When did you make that list? A. I made it at the time I was on the dealership lot. Q. Was the list you made accurate and complete? A. Yes, sir. Q. Mr. Doe, would that list refresh your recollection as to what those serial numbers were? A. No, I couldn’t possibly remember them, even if I reviewed the list. Step 1. Have exhibit marked. Step 2. Show exhibit to opposing counsel. Step 3. Ask permission to approach witness. Step 4. Show exhibit to witness. Step 5. Establish foundation: Q. I show you what has been marked Plaintiff’s Exhibit #1 for identification purposes. Do you recognize it? A. Yes. Q. What is it? A. That’s the list I made of the serial numbers on the cars I saw at the car dealership. Q. Is the record in the same condition now as when you made it? A. Yes, nothing on it has been changed. Step 6. Offer exhibit in evidence. Step 7. Have exhibit marked in evidence. Step 8. Have witness mark exhibit. Step 9. Ask permission to show/read exhibit to jury. Sept 10. Show/read exhibit to jury. Professor John Barkai, U.H. Law School Page - 85 BUSINESS RECORD Q. Mr. Doe, please state your occupation. A. I’m the records keeper of the XYZ Corporation. Q. What does your job involve? A. I collect, keep, and maintain all the company records according to our indexing system. Step 1. Have exhibit marked. Step 2. Show exhibit to opposing counsel. Step 3. Ask permission to approach witness. Step 4. Show exhibit to witness. Step 5. Establish foundation: Q. Mr. Doe, I am showing you what has been marked Plaintiff’s Exhibit #1 for identification purposes. Do you recognize it? A. Yes, it’s one of our records. Q. Was that record made by a person with knowledge of, or made from information transmitted by a person with knowledge of, the acts and events appearing on it? A. Yes. Q. Was the record made at or near the time of the acts and events appearing on it? A. Yes. Q. Is it the regular practice of the XYZ Corporation to make such a record? A. Yes. Q. Was that record kept in the course of a regularly conducted business activity? A. Yes. Step 6. Offer exhibit in evidence. Step 7. Have exhibit marked in evidence. Step 8. Have witness mark/explain exhibit. Step 9. Ask permission to show/read exhibit to jury. Step 10. Show/read exhibit to jury. Professor John Barkai, U.H. Law School Page - 86 IMPEACHMENT: PRIOR INCONSISTENT STATEMENT HRE 613 Written statements include statements in either narrative or question-and-answer form, and are written by the witness or signed by him. Although written statements are usually statements given to investigators or police officers, they can include any other writings such as letters and records. Example: Witness testifies in a criminal case that the person who robbed him was about 24 years old and 5 feet 11 inches tall. In a signed written statement to a police detective, he stated the robber was about 18 years old and 5 feet 7 inches tall. Q. Mr. Doe, you now say that the man who robbed you was about 24 years old and about 5 feet 11 inches tall? A. Yes. Q. You were face-to-face with him for perhaps two minutes, weren’t you? A. Yes. Q. There was plenty of light? A. Yes. Q. So you had an opportunity to see his face and gauge his height, didn’t you? A. Yes. Q. How tall are you, Mr. Doe? A. I’m 5 feet 8 inches. Q. So the robber was about 3 inches taller than you? A. Yes. Q. And he was about 24 years old? A. Yes, about that. Q. Your estimate of his age at 24 and his height at 5 feet 11 inches was based on your two-minute face-to-face confrontation, is that correct? A. Yes. Q. Mr. Doe, you made a written statement the same day of the robbery, didn’t you? A. Yes. Q. That was made to Detective Smith? A. Yes. Q. At the police station? A. Yes. Q. After he typed your statement he gave it to you, didn’t he? A. Yes. Q. He asked you to read it and make any corrections necessary, didn’t he? A. Yes. Professor John Barkai, U.H. Law School Page - 87 Q. You did that, didn’t you? A. Yes. Q. You wanted to be sure that your statement was accurate, didn’t you? A. Yes. Q. After making sure it was accurate, you signed the statement, isn’t that right? A. Yes. Q. (Have the statement marked as an exhibit, show it to opposing counsel, then to the witness.) Mr. Doe, I’m showing you a two-page document marked Defendant’s Exhibit #1 for identification purpose. That’s your signature at the bottom, isn’t it? A. Yes. Q. This is the signed statement you made for Detective Smith, isn’t it? A. Yes. Q. I’m going to read from your written statement page 1, counsel “The man looked about 18 years old. He was approximately 5 feet 7 inches tall”? That’s what your statement says, right? A. Yes. Professor John Barkai, U.H. Law School Page - 88 IMPEACHMENT: OMISSION Impeachment by omission is a common trial technique whenever a witness testifies who previously prepared a written report of his activities. While impeaching by omission can be powerful, don’t use it on inappropriate witnesses. Save it for witnesses who have been trained how to make and fill out reports and records and have control over what goes into them. Police officers and other investigators commonly fall into this category. Whenever such a witness testifies to any important fact that he failed to include in his report, he can be impeached by the omission of this fact from his report. The technique is the same as for impeachment with a prior written statement, only that the prior statement is nonexistent. The purpose is obvious: If what he is saying now was so significant, why didn’t he put it in his report? The buildup is critical. You must establish that the witness knows how to prepare good reports, because he knows when information is important enough that it would always be included. Once this has been driven home, force the witness to admit that the omitted fact is an important one that should always be included in a report. With this established, the conclusion is obvious: The claimed fact never actually occurred. Example: A police officer has testified that immediately after arresting the defendant, the defendant said, “I don’t know what got into me. It just happened.” That statement is not in his written report. Q. Officer Doe, right after you arrested Bobby you claim he said, “I don’t know what got into me. It just happened.” Is that what you’re telling us? A. Yes, sir. Q. You’re sure that’s what he said? A. Yes. Q. Officer Doe, you prepared a written report of this incident, didn’t you? A. Yes. Q. You received training on how to prepare such written reports at the police academy, didn’t you? A yes. Q. You were taught to prepare complete and accurate reports, right? A. Yes. Q. You were also taught to include everything about the incident that was important, right? A. Yes. Q. That’s because you, your commanding officer, and the county attorney all rely on that report to evaluate the case, don’t they? A. Yes. Q. One of the most important things to write down is what any person arrested says about Professor John Barkai, U.H. Law School Page - 89 the incident, right? A. Yes. Q. In fact, you’re taught to write down the actual words someone you arrest uses, aren’t you? A. Yes. Q. (Have the officer’s report marked as an exhibit, show it to opposing counsel, then to the witness.) I show you what has been marked Defendant’s Exhibit #1 for identification purposes. That’s your written report? A. Yes. Q. Your narrative of the incident covers the entire back side of the form, and is in single-spaced type? A. Yes. Q. After typing it you read it over? A. Yes. Q. You wanted to make sure it was complete and accurate, didn’t you? A. Yes. Q. And that it included everything that was important, right? A. Yes. Q. And that it included everything that was important, right? A. Yes. Q. After making sure it was complete and accurate, you signed that report, correct? A. Yes. Q. The purpose of the report is to have an accurate record of what you saw, heard, and did, correct? A. Yes. Q. You also use such a report to refresh your memory before testifying about the incident, isn’t that also correct? A. Yes. Q. That’s important, because everyone’s memory fades with time, doesn’t it? A. Yes. Q. In fact, you read this report today before testifying here, didn’t you? A. Yes. Q. Officer Doe, nowhere in this report that you prepared did you state Bobby said, “I don’t know what got into me. It just happened.” Isn’t that so? A. That’s not in the report. Q. In fact, your report says absolutely nothing about any statement, does it? A. No. While this is an effective approach, there are more persuasive techniques to expose an important omission. One way is to have the witness look over his report and attempt to find the absent information. Another is to give the witness a pen and ask him to circle the absent information. The witness’ obvious inability to do this effectively exposes the omission. Professor John Barkai, U.H. Law School Page - 90 AUTHENTICATION Professor John Barkai, U.H. Law School Page - 91 EXHIBITS STEPS IN INTRODUCING EXHIBITS 1. HISTORY Some testimony that the witness knows or is familiar with the evidence or scene. Seeing it once before or being there once before is enough. 2. LITANY (a ritualistic repetition of foundational questions) -Mark -Show opposing counsel -Ask permission to approach the bench - “I show you what has been marked as Plaintiff's (Prosecution) (Defense) Exhibit # x, for identification purposes and ask whether you can identify it?” - “What is it?” - “How do you know that?” 3. CONDITION or COMPARISON or ACCURACY Some comparison must be made between the item in court and the connection of the exhibit to the case. The following are typical questions, although generally only one such question is necessary. - “Is this in the same condition as when you...[first saw it...seized it...etc]?” - “Is this in the substantially the same condition....” - “Has it changed in any significant way?” - “How does it compare to the item you saw that day?” - “Is it a fair and accurate representation of the ... that day?” 4. MOVE or OFFER “Your honor, I offer the exhibit into evidence.” - or, “I move the exhibit into evidence.” The judge might ask the opponent if s/he has any objections. However, the opponent should simply object if an objection to the admissibility (not the weight) exists. The judge should allow “voir dire” (immediate cross examination limited to the foundation and the admissibility) by the opponent of the exhibit. MARKING EXHIBITS: “All exhibits ... shall be marked for identification at least one day prior to the trial.” Circuit Court Rule 18 “All exhibits ... shall be marked for identification prior to the trial.” District Court Rule 18 Professor John Barkai, U.H. Law School Page - 92 STATE V. SEQUIN 73 Haw. 331, 832 P.2d 269 (1992) Defendant-Appellant ... appeals his conviction by a circuit court jury of four counts of Promoting a Dangerous Drug in the Second Degree in violation of Hawaii Revised Statutes (HRS) s 712- 1242(1)(c). We affirm.... “Appellant urges ... the trial court abused its discretion when it denied Appellant's motions to admit into evidence defense proposed exhibit C, an aerial photograph, and excluded a defense expert who would have referred to the exhibit in his testimony. ... A. The Aerial Photograph Defendant argues that the trial court erred in excluding defense exhibit C, the aerial photograph of the area taken in December 1986, some six months following the undercover operation. The aerial photograph was crucial to the defense because it would illustrate the precise location of the cockfighting pit, with respect to the driveway, and would emphasize the discrepancies in Okata's testimony as to the location of the pit and the area where Appellant was parked. Defense expert Doug Mukai would utilize the exhibit to calculate the distances between certain points as depicted on the exhibit.  We review the trial court's exclusion of a photographic exhibit under the abuse of discretion standard. See generally State v. O'Daniel, 62 Haw. 518, 527, 616 P.2d 1383, 1390 (1980) (the trial court is vested with discretion in admitting evidence at trial and such a decision will not be reversed absent an abuse). As we have stated, “[t]he test determining whether photographs may be shown to the jury is not whether they are necessary, but whether their probative value outweighs their possible prejudicial effect.” ...  The trial court's exclusion of the photographic exhibit in the present case was based upon a determination that the photograph did not substantially depict the area as it existed in June 1986, and that the exhibit could thereby mislead the jury. In addition, there was another diagram admitted into evidence as defense exhibit A, which more clearly portrayed the area of the alleged offenses. We cannot disagree with the trial court's ruling based on the abuse of discretion test. Okata was unable to recognize the aerial photograph and did not “even see where Renton Road was on the photograph.” Makanani testified that he recognized the general area, the abutting streets and the cockfight area but he could not identify the cockfighting pit or the dirt pathway leading from Renton Road to the cockfighting area because of the overgrowth. Although Makanani agreed that otherwise the photograph fairly and accurately depicted the area as it looked in 1986, his testimony clearly showed that the photograph was not a fair and accurate representation of the cockfighting area as it looked in early June of 1986. We find that the aerial photograph was properly excluded because it did not subsequently depict the cockfighting pit and its immediate environs.... Affirmed. Professor John Barkai, U.H. Law School Page - 93 STATE V. VANCE 61 Haw. 291, 602 P.2d 933 (1979) The appellants next contend that the lower court erred in admitting into evidence ... the cocaine seized from John Vance, and ... the secobarbital seized from Michael Vance, where there had been no showing of the chain of custody from the time the evidence was received by the police chemists until the time it was received in evidence at trial. We find that the evidence was properly admitted.  In State v. Olivera, 57 Haw. 339, 344, 555 P.2d 1199, 1202 (1976), we noted that where an exhibit is a drug or chemical in the form of a powder or liquid which is readily susceptible of adulteration or substitution, courts tend to be strict in requiring that a chain of custody be established which minimizes the possibility of any tampering with the exhibit. The settled rule in other jurisdictions is that “a foundation must be laid connecting the exhibit with the defendant and showing the continuous whereabouts of the exhibit from the time it came into the possession of the police until it was laboratory tested. The purpose of the rule is to avoid any claim of substitution, *304 tampering or mistake.” ... Establishing the chain of custody is essential to show that the substance analyzed was the substance seized from the defendant. ... After chemical analysis, however, the substance itself is not vital evidence. ... Therefore, proof of chain of custody of the substance during the period after analysis until introduction into evidence at trial is not required absent a specific allegation of tampering.  Furthermore, we stated in State v. Olivera, supra, that it is not necessary to negate all possibilities of tampering with an exhibit. It is sufficient to establish that it is reasonably certain that no tampering took place, with any doubt going to the weight of the evidence. ...  In the instant case, the uncontradicted testimony of the police officers and crime lab analysts established the chain of custody of the evidence from the time the items were recovered by the police to the time the substances were tested. Moreover, the appellants have made no allegation of alteration or substitution. We find, therefore, that the admission into evidence of prosecution exhibits 1 and 2 was not in error. Professor John Barkai, U.H. Law School Page - 94 BRUTHER v. GENERAL ELECTRIC, 818 F.Supp 1238 (S.D. Ind. 1993) On January 31, 1989, Plaintiff was electrocuted while changing a light bulb at his place of employment, Rexnord, Inc., in Madison, Indiana. Rexnord is now known as Envirex, Inc. According to Plaintiff, when he attempted to unscrew the bulb from its socket, the glass envelope separated from the base, exposing his right hand to an electrical current. As a result of the ensuing shock, Plaintiff apparently sustained permanent, disabling injuries; he now seeks recovery from Defendant under the full gamut of theories available in a product liability action: strict liability, negligence, breach of warranty, and failure to warn. Mrs. Bruther also seeks compensation from the Defendant for the loss of “support, services, society, love and affection and comfort of her husband ...” Defendant has moved for summary judgment on... [the ground that] Plaintiff cannot authenticate the bulb that he wishes to introduce into evidence... Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.Proc. 56(c). While the burden rests squarely on the party moving for summary judgment to show “that there is an absence of evidence to support the nonmoving party's case”, the nonmoving party responding to a properly made and supported summary judgment motion still must set forth facts showing that there is a genuine issue of material fact and that a reasonable jury could return a verdict in its favor. Denials contained in the pleadings or bald allegations that an issue of fact exists is insufficient to raise a factual issue. “The moving party is 'entitled to a judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Under Federal Rule of Evidence 901(a): “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” F.R.E. 901(a). The rationale behind this Rule is that absent a showing that the evidence is what the proponent alleges, it has no relevance. Defendant believes that Plaintiff is unable to authenticate the bulb that he seeks to introduce into evidence because of the lack of identifying marks on the bulb, and the existence of a gap in the chain of custody which developed immediately after the accident occurred. Apparently, no one at Rexnord took care to safeguard the bulb after Plaintiff was injured. While Howard Goodin, an employee at Rexnord, later removed the bulb from the socket, see Goodin Deposition at 50, it is unclear what became of the bulb after that time. It was only after Mr. James, Plaintiff's counsel, asked to examine the bulb that Don Riley, the plant safety manager, began to look for it. (The exact dates of these events is unknown). Mr. Riley found a broken bulb in a small cabinet next to the site where the accident occurred. Although he cannot positively identify the bulb as the one that was involved in the accident, Mr. Riley believes, with some reservations, that it is the bulb in question because “[w]e wouldn't keep broken bulbs; so if it was there, it had a specific purpose to be there.” In addition, the record indicates that only six people had access to the Professor John Barkai, U.H. Law School Page - 95 area where the accident occurred and the cabinet where the bulb was found. As concerns the brand of the bulb, Plaintiff states in his affidavit: [that two weeks before the accident he had installed General Electric bulbs in the sockets where he was working at the time of the accident, and that to the best of his knowledge no other brand of bulbs were ever used in those sockets]. The Court finds that the evidence in the record is “sufficient” within the meaning of F.R.E. 901 to support a finding that the bulb in question is the bulb that caused Plaintiff's injuries, and that the bulb was manufactured by Defendant. Of course this holding is limited only to the issue whether Plaintiff has met the threshold burden of producing enough evidence to support his allegations; the determination whether the bulb in fact is what the Plaintiff claims it is must be made by the jury when it acts in its appointed role as finder of fact. Given, however, the limited access to the area where the injury occurred and where the bulb in question was found, the proximity of the cabinet where the bulb was found to the site of the accident, Mr. Riley's statement that Rexnord would not keep a broken bulb unless there was a reason to do so, and Plaintiff's own statement that he had installed, just two weeks prior to the accident, a G.E. light bulb in the same socket where the bulb that caused Plaintiff's injuries was located, a jury considering these factors reasonably could conclude that the bulb in question is the bulb that came apart and caused Plaintiff injury. The Defendant's arguments to the contrary are unpersuasive. Besides a frontal assault on the sufficiency of Plaintiff's evidence (i.e. that no one can directly identify the bulb), Defendant makes much ado about lapses in the chain of custody, and tries to persuade the Court that because the bulb in question is nondescript, akin to a blood sample, “the chain of custody requirement must be followed to the letter ...” to satisfy F.R.E. 901. That rule requires nothing of the sort. Rule 901 regulates the admissibility of evidence. The slightest research on the law is this circuit concerning the effect of gaps in the chain of custody reveals that “any discrepancies in the chain of custody go to the weight of the evidence, not its admissibility.” See U.S. v. L'Allier, 838 F.2d 234, 242 (7th Cir.1988), citing, United States v. Shackleford, 738 F.2d 776, 785 (7th Cir.1984). Consequently, it is the jury, and not the Court, which must evaluate the significance of Plaintiff's inability to account for the bulb following the accident.... Because there remain genuine issues of material fact in this case, Defendant's motion for summary judgment is DENIED... Professor John Barkai, U.H. Law School Page - 96 UNITED STATES v. CASTO, 889 F.2d 562 (5th Cir. 1989) CLARK, Chief Judge: Diana Casto appeals her conviction in the United States District Court for the Western District of Texas on one count of conspiracy to possess with intent to distribute methamphetamine... and two counts of aiding and abetting in the unlawful distribution of methamphetamine... We affirm. Casto contends that a break in the chain of custody pertinent to Government Exhibits Two, Three, Four, and Five, the packages of methamphetamine sold to the undercover agents by [codefendant Melinda] Gutierrez, should have rendered these exhibits inadmissible. Shortly after Officer Martinez seized the packages, they were sealed and sent to a Drug Enforcement Agency laboratory in Dallas, Texas. Over two months later the packages were tested by Frank Medina, a forensic chemist at the lab. Medina found that the packages contained methamphetamine. He then sent the packages back to Martinez, who held custody of them until trial. During the period between the arrival of the packages at the laboratory and Medina's testing, the packages were kept in a vault where a technician had placed them upon their arrival at the laboratory. Martinez and Medina testified at trial as to their custody of the packages, but the technician did not testify. According to Casto the trial judge erred by disregarding this evidentiary flaw and allowing the packages into evidence. We disagree. A trial judge is correct in allowing physical evidence to be presented to the jury as long as a reasonable jury could decide that the evidence is what the offering party claims it to be. FED.R.EVID. 901. Any question as to the authenticity of the evidence is then properly decided by the jury. Thus, a break in the chain of custody affects only the weight and not the admissibility of the evidence. The trial court was correct to admit the packages of methamphetamine....AFFIRMED. Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook R901 Chain of Custody A chain of custody is required if the evidence could be changed without looking different. However, not all possibility of tampering or adulteration is required to be eliminated. In re Exxon Valdez, 270 F.3d 1215, 1249 (9th Cir.2001) (blood test results showing alcohol content properly admitted despite "remarkable mishandlings" of sample, where evidence was sufficient for a reasonable juror to find identity and unchanged condition), United States v. Olson, 846 F.2d 1103, 1116 (7th Cir.1988), cert. denied, 488 U.S. 850, 109 S.Ct. 131, 102 L.Ed.2d 104 (1988); Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1154-55 (5th Cir.1981). A defect in the chain of custody normally goes to the weight, not the admissibility, of the evidence. United States v. Jackson, 345 F.3d 59, 65 (2d Cir.2003);United States v. Briley, 319 F.3d 360, 363-64 (8th Cir.2003); United States v. Gorman, 312 F.3d 1159, 1162 (10th Cir.2002) ("One officer testified that all evidence taken from inside the truck was placed on the hood of the truck and the box of ammunition was among those items. He said he took the evidence from the truck hood and transported it to the police station. Another officer testified to receiving, securing and accounting for the evidence, including the box of ammunition. Although these officers could not identify who found the box of ammunition, their testimony was sufficient foundation when placed in context and considered in light of all factual circumstances."); United States v. Matta-Ballesteros, 71 F.3d 754, 768-69 (9th Cir.1995). Professor John Barkai, U.H. Law School Page - 97 UNITED STATES v. GRANT, 967 F.2d 81 (2d Cir. 1992) PER CURIAM: Sharon Grant appeals from her conviction, following a jury trial, on charges of conspiracy to import heroin, importation of heroin, and possession of heroin with intent to distribute it in violation of 21 U.S.C. 841(a)(1), 952(a), and 963....Grant contends that the government failed to prove that the packages imported by [her traveling companion Gene] Kirven...contained heroin. She points out that the government did not establish an airtight chain of custody over the packages from the time they were seized at the airport until the time they were tested in the laboratory by the government's chemist. Instead, the testimony and documents introduced at trial indicated that the packages were signed out of an airport vault on January 9, 1991 and not signed into the Drug Enforcement Agency's laboratory until January 23, 1991. There is nothing in the record to indicate what happened to the packages in the interim. From this lapse, Grant contends that there was insufficient evidence to establish that the laboratory tested the same substance that Kirven carried to the airport. Grant then argues that without the lab test, there was not sufficient evidence from which any reasonable jury could find that the packages contained heroin. We disagree. We first note that this is not a typical “chain of custody” case. Chain of custody is usually an issue where a party attempts to introduce a piece of physical evidence....In this case we need not determine whether the drugs were properly authenticated since the government did not offer the drugs themselves into evidence. Instead, the government presented the testimony of the chemist who analyzed the package. There is no need to authenticate the testimony of live witnesses. This is not to say that the government's failure to establish a chain of custody is unimportant. In order to be admissible, the testimony of a live witness must be relevant, that is, must have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. In order for the chemist's testimony to be relevant, there must be some likelihood that the substance tested by the chemist was the substance seized at the airport. The government's failure to establish a chain of custody from the moment the substance was seized to the time it was subjected to laboratory analysis makes this less likely, and thus casts some doubt on the admissibility of the chemist's testimony. However, Grant did not object to the chemist's testimony at trial and does not assert here that the testimony should have been excluded. Even if Grant had pursued this argument, we doubt it would be successful, given the broad discretion afforded district courts in making relevancy determinations....[W]e affirm her conviction and sentence in all respects. Professor John Barkai, U.H. Law School Page - 98 UNITED STATES v. SIMPSON, 152 F.3d 1241 (10th Cir. 1998) [Defendant appealed his conviction for receiving child pornography on the ground that a computer printout of the alleged Internet chat room exchange between defendant and an FBI agent should not have been admitted on the ground it was not authenticated by a showing it was in defendant's handwriting or voice.] STEPHEN H. ANDERSON, Circuit Judge. At trial, the government's evidence was almost entirely circumstantial. Agent Rehman testified that he had a “conversation” under the assumed name of “FlaHawk” in a chat room called “Kidsexpics” with an individual identified as “Stavron” who said that his name was “B. Simpson” and who gave a street address and e-mail address. Other witnesses testified that both the street and e-mail addresses belonged to the Defendant, Bill Simpson. Agent Rehman and the individual discussed several items of child pornography in lurid detail and the individual identifying himself as B. Simpson indicated that he possessed many images of child pornography. The two also made a deal that the individual would send Rehman a check for $30 and a floppy disk containing numerous pornographic images of children under age 13 and in return, Rehman would send a video tape containing sexual interactions between a twelve year-old girl and a sixteen year-old boy. A printout of this conversation was admitted as evidence and published to the jury. Agent Rehman testified that through a series of e-mails from the given e-mail address, the individual backed out of the deal because he was afraid of using the U.S. mail, so nothing was ever sent. Agent Rehman also was qualified as an expert witness on computer terms and usages and testified about the process of transferring files over the Internet. Detective Johnson testified that he had verified that a Bill Simpson lived at the street address given to Agent Rehman and prepared an affidavit for a search warrant of that address. Detective Johnson and other officers executed the warrant and seized many things, including a computer, disks, and several papers located near the computer. The papers contained the name “FlaHawk” and the name, street address, and e-mail address that Agent Rehman had given the individual in the chat room. The prosecution recalled Agent Rehman, who was then accepted by the court as an expert on the use of computers and investigating child exploitation and pornography. He testified how many of the individuals who use computers to view child pornography name the files and organize them on their computers. He also went through the list of directories on the seized computer's hard drive and explained what the directory names could mean. Agent Rehman then explained that in his experience the fact that the dates differed on the file transfer protocol (“ftp”) log and on the files found on the seized computer is not uncommon because people downloading through the Internet typically receive copies of files they already have, so they then delete the duplicates. He also testified that his experience has shown that a child pornography file with a complex name generally contains the same image no matter where he has found them on the Internet, and he expressed his opinion that the files downloaded through the Internet at a site in Boston were the same as the ones located on the seized computer. Next, Jeff Bewley, the Server Administrator for an Internet service provider testified that the Professor John Barkai, U.H. Law School Page - 99 ftp log found on the seized computer indicated a transfer of files named “doit007.jpg” and “kk-a0021.jpg” from an Internet site located in Boston. He also indicated that files would not be transferred via the Internet accidentally--in other words, the user would know that he or she was getting a file, although they might not know what the file contained.... Simpson next argues that the trial court erred in admitting Plaintiff's Exhibit 11, which is a computer printout of the alleged chat room discussion between Simpson and Detective Rehman, because the government could not identify that the statements attributed to Simpson were in his handwriting, his writing style, or his voice pursuant to Fed.R.Evid. 901(b)(2)--(5). Therefore, argues Simpson, the evidence was not authenticated and should not have been admitted. The specific examples of authentication referred to by Simpson are merely illustrative, however, and are not intended as an exclusive enumeration of allowable methods of authentication. See Fed.R.Evid. 901(b). Rather, all that is ultimately required is “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). The evidence introduced at trial clearly satisfies this standard. In the printout of the chat room discussion, the individual using the identity “Stavron” gave Detective Rehman his name as B. Simpson and his correct street address. The discussion and subsequent e-mail exchanges indicated an e-mail address which belonged to Simpson. And the pages found near the computer in Simpson's home and introduced as evidence as Plaintiff's Exhibit 6 contain a notation of the name, street address, e-mail address, and telephone number that Detective Rehman gave to the individual in the chat room. Based on this evidence, the exhibit was properly authenticated and admitted as evidence. Professor John Barkai, U.H. Law School Page - 100 UNITED STATES v. JACKSON, 208 F.3d 633 (7th Cir. 2000) TERENCE T. EVANS, Circuit Judge. This case is about a tragic waste of talent. Angela Jackson probably would be sitting in a comfortable law firm today--instead of doing time in a federal penitentiary--if she had devoted as much energy to her legal studies as she did trying to rip off the United Parcel Service in a bizarre and elaborate scheme that included sending hate mail to a number of prominent African-Americans. Her activities led to a bevy of federal charges, and a jury found her guilty on every count in the indictment. Today, her appeal is up for consideration. In 1996-1997 Jackson (a young African-American woman) was enrolled at the William Mitchell College of Law in St. Paul, Minnesota. She previously lived in Chicago for several years while working and attending the Chicago-Kent law school. In the fall of 1996 Jackson and a friend incorporated a business that planned to sell prints and paintings depicting African-American culture. She purchased several prints from Chicago artist Bayo Iribhogbe for a total of $2,000. She then sent Iribhogbe four United Parcel Service mailers preaddressed to her St. Paul address and on which she had written in bold letters “Kwanzaa,” an African-American holiday. Iribhogbe packed his artwork in the mailers and sent them off. UPS delivered the packages to Jackson's St. Paul apartment building on December 4, 1996. The UPS driver, the apartment building's receptionist, and the apartment building's concierge who handed the packages directly to Jackson all testified that there were four packages and that none were damaged or defaced. Jackson, however, reported to UPS that she had received only three packages and that all were damaged and contained racial epithets. Though she had paid only $2,000 for the artwork, though her company had received no orders for the art, and though Iribhogbe never previously sold a single print for more than $15, Jackson filed a $572,000 claim with UPS. When UPS balked, Jackson faxed letters to various African-American officials, claiming that “racist elements” within UPS were responsible for defacing her packages and for refusing to compensate her. That evidence alone might well have been enough to convict Jackson of the fraud charges that were ultimately filed against her, but there was much more. Much more. On December 3, 1996, a search of federal cases and statutes for the words “united,” “parcel,” “service,” “damaged,” and “packages” in the same paragraph was done on the LEXIS-NEXIS research service on Jackson's computer under the LEXIS password of Jacqueline Whittmon. Whittmon testified that when she worked in the Chicago-Kent law library she gave Jackson her password, that she never used her LEXIS password after leaving her position at Chicago--Kent in the spring of 1996, that Jackson called her from Minnesota in the fall of that year to ask if her LEXIS password still was activated, and that she never gave her password to anyone else. Also gleaned from Jackson's computer was evidence that it was used in November of 1996 to search the Internet for “white supremacy” organizations and to visit the web sites for the “Euro-American Student Union” and the “Storm Professor John Barkai, U.H. Law School Page - 101 Front,” two such groups. On November 25, 1996, seven letter packs were placed in a UPS mailing box in Chicago that were addressed to three African-American members of Congress, two African-American newspapers in Washington, D.C., the NAACP, and the Rainbow Coalition. The Euro-American Student Union's address was listed as the return address. The packages never were delivered because the UPS driver noticed racial slurs on the outside of the items and turned them over to his supervisor. UPS opened the packages and inside found racially offensive materials under the UPS logo. On that day, Jackson made a withdrawal from an ATM machine located next to the UPS drop box. A piece of paper with the UPS billing identification number for these packages later was found in Jackson's apartment and Jackson initially gave that number when she called UPS in December to complain about her allegedly defaced packages. In June 1998 the government filed a motion alleging that Jackson had created false email correspondence on May 20, 1998, that attempted to frame David Stennett, the head of the Euro-American Student Union, for the hate mail. Evidence at the trial showed that Jackson subsequently tried to create an alibi by altering and falsifying records to make it appear that she was being treated at Meharry Medical Clinic in Tennessee on May 20, 1998, when she actually was treated there on other dates. Jackson appeals her conviction on the eight fraud counts involving UPS on the grounds that Judge Norgle excluded admissible evidence.... Jackson's defense is that she didn't do it--in other words, the original four packages sent to her actually were damaged and defaced by UPS and the hate mail really was sent by white supremacists. She says her defense was stymied, however, by Judge Norgle's refusal to allow Stennett to testify and the judge's refusal to admit postings from the web sites of the white supremacy groups. We review the exclusion of evidence for abuse of discretion. [The Court discussed the trial court's conclusion that defendant's evidence concerning the alleged content of white supremacist web sites was inadmissible on various grounds.] Even if we are wrong about the web postings being unfairly prejudicial, irrelevant, and hearsay, Judge Norgle still was justified in excluding the evidence because it lacked authentication. See Fed.R.Evid. 901. Jackson needed to show that the web postings in which the white supremacist groups took responsibility for the racist mailings actually were posted by the groups, as opposed to being slipped onto the groups' web sites by Jackson herself, who was a skilled computer user..... Jackson was unable to show that these postings were authentic. Professor John Barkai, U.H. Law School Page - 102 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. The State jointly charged Konohia and his cousins, Randall Konohia (Randall) and Boniface Konohia (Boniface), as principals and/or accomplices with 1) Attempted Murder in the Second Degree (Count 1); 2) Criminal Property Damage in the First Degree (Count 2); and 3) Unauthorized Entry into a Motor Vehicle (Count 3). After a jury trial, Konohia was found guilty of Attempted Manslaughter based on extreme mental or emotional disturbance, Criminal Property Damage in the Fourth Degree, and Unauthorized Entry into a Motor Vehicle. FN2. The jury also found Randall Konohia (Randall) guilty of Assault in the First Degree and Criminal Property Damage in the First Degree and Boniface Konohia (Boniface) guilty of Reckless Endangering in the Second Degree and Unauthorized Entry into a Motor Vehicle. Randall and Boniface did not appeal their convictions or sentences. On appeal, Konohia claims that the trial judge erred in 1) admitting into evidence recordings of 911 calls made by the alleged victim and one of Konohia's relatives, ... We affirm. [Victims Erik Coral-Sands (Coral-Sands) and Joel Lamotte (Lamotte) were approached, confronted, chased, and beaten in their van while driving on a dirt road through pineapple fields on their way to the Pauwela Lighthouse.] While Coral-Sands' van was being chased around the pineapple fields by Konohia's car, Coral-Sands used his cellular telephone to call 911. Coral-Sands' 911 call, which was recorded, continued through his van rolling-over and the alleged assault in the van. The 911 dispatcher did not terminate the call until the police advised her they had arrived at the scene and located the alleged victim. The recording of Coral-Sands' 911 call was therefore a contemporaneous recording of the events as they unfolded. [According to the prosecution view of the facts, in the van] Konohia attacked and thrust the walking stick completely into Coral-Sands' left eye with sufficient force to rupture the eye and fracture the eye orbit. Coral-Sands grabbed the stick as it came out of his eye. Konohia continued to jab the stick at Coral-Sands, saying that he was trying to take out Coral-Sands' other eye, and struck Coral-Sands in the face, chest, neck, and back. In the meantime, Randall grabbed a golf club in the van and used it to hit Coral-Sands in the head. The beating continued until Coral-Sands was knocked unconscious. Coral-Sands was rendered permanently blind in his left eye.... 3. Konohia's claims On appeal, Konohia argues that the trial court erred in admitting the recording of Coral-Sands' 911 call. Konohia claims that 1) the recording was not properly authenticated because the State did not identify all the voices on the recording; 2) Coral-Sands' statements on the recording should have been excluded as hearsay; 3) no foundation was laid for the recording's admission as a prior consistent statement; 4) the Professor John Barkai, U.H. Law School Page - 103 recording was irrelevant and its probative value was substantially outweighed by the danger of unfair prejudice; and 5) the admission of the recording violated Konohia's right to confrontation under the Hawai i and United States Constitutions. Konohia's claims are without merit. a. The recording was sufficiently authenticated to warrant its admission. HRE Rule 901 provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The State introduced the recording of Coral-Sands' 911 call as a contemporaneous recording of the charged criminal episode. Konohia argues that in order to authenticate the recording and establish its admissibility, the State had to identify every voice on the recording or else redact out the unidentified voices. We disagree. The requirement of authentication as a condition precedent to admissibility “represent[s] a special aspect of relevancy.” Commentary to HRE Rule 901. When the relevancy of a recording does not depend on the identification of certain voices, those voices need not be identified to establish the authenticity and admissibility of the recording. See Johnson v. State, 823 So.2d 1, 24 (Ala.Crim.App.2001) (upholding admissibility of 911 recording despite witness's failure to identify all the voices and noises on the recording). The recording of Coral-Sands' 911 call captured the actual sounds of the alleged assault, including the sounds of a violent struggle and the tones of voice used by the participants. This portion of the recording, in particular, was relevant and admissible regardless of whether all the voices were identified. It gave the jury a true audio picture of the alleged assault and an accurate context from which to consider the testimony of the witnesses. We conclude that there was sufficient evidence to authenticate the recording and establish its admissibility. The 911 dispatcher testified that she received a call from an Erik Coral-Sands, that the recording equipment was working properly, and that the State's exhibit was an accurate recording of Coral-Sands' 911 call. The 911 dispatcher verified that the female voice on the recording was her voice. Evidence identifying Coral-Sands' voice was also introduced. Both Coral-Sands and Lamotte testified that Coral-Sands called 911 while he was being chased by Konohia's car. Coral-Sands described certain statements he made during the 911 call that are audible on the recording. Coral-Sands can also be heard on the recording identifying himself by name to the 911 dispatcher. Lamotte testified that the recording accurately reflected what had transpired after Coral-Sands called 911, including everything that happened in the van. The additional voices of Lamotte, Konohia, Randall, and Boniface were identified on the recording. The voice identification evidence provided a basis for distinguishing the voices of Coral-Sands and Lamotte from the other voices heard during the alleged assault. The State satisfied HRE Rule 901. ... Professor John Barkai, U.H. Law School Page - 104 HRE 901 PIONEER MILL COMPANY v. DOW 90 Hawai'i 289, 978 P.2d 727 (1999) Claimant brought action to quiet title to parcel of real property based upon adverse possession. The Circuit Court entered judgment in favor of claimant, and record owners appealed. The Intermediate Court of Appeals affirmed, and record owners again appealed. The Supreme Court, Ramil, J., held that (1) documentation submitted by claimant in support of its motion for summary judgment was inadmissible ...Reversed and remanded. MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ. Opinion of the Court by RAMIL, J. ...this action to quiet title based upon adverse possession... Plaintiff Pioneer moved for summary judgment...In support of its argument, Pioneer provided the affidavits of three witnesses who could attest to their knowledge of Pioneer's use of the land in an open, notorious, continuous, and exclusive manner for a period ranging from 1930 to the present. Pioneer also provided a photocopy of a Status Title Report, prepared by George Uehara of Title Guaranty of Hawaii, Inc. The report was sworn to by Pioneer's counsel, not George Uehara, and was not certified. Pioneer supplemented its motion for summary judgment on August 11, 1994 with a translation of the probate of Kahoomaeha's estate, as translated from Hawaiian to English by Edith McKinzie. The report was sworn to by Pioneer's counsel, not Edith McKinzie, and was not certified... To avoid improperly depriving a party to a lawsuit of the right to a trial on disputed factual issues, summary judgment must be “cautiously invoked.” Summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any (hereinafter “relevant materials”), show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Hawai i Rules of Civil Procedure (HRCP) Rule 56(c) (1990). The burden is on the party moving for summary judgment (moving party) to show the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitles the moving party to judgment as a matter of law. 1. Pioneer's Documentation Submitted in Support of Its Summary Judgment Motion Was Not Properly Sworn to or Certified and Was Therefore Inadmissible. HRCP Rule 56(e) provides: Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Professor John Barkai, U.H. Law School Page - 105 Hawai i appellate courts have interpreted this provision to require documentation submitted in support of a summary judgment motion to be properly sworn to or to be certified. Documents that are plainly inadmissible in evidence and are unsworn, not properly sworn to, and/or uncertified cannot be considered upon a summary judgment motion. Furthermore, unless counsel wishes to relinquish his or her role as advocate and become a witness in the case, an affidavit of counsel swearing to the truth and accuracy of exhibits does not authenticate exhibits not sworn to or uncertified by the preparer or custodian of those exhibits. Here, the two documents submitted by Pioneer addressing the origin of its possession...were sworn to by Pioneer's counsel, not by the preparers or custodians of these records. Therefore, Pioneer's “evidence”...was inadmissible and improperly relied upon by both the circuit court and the ICA. Despite the requirement under HRCP Rule 56(e), at the August 11, 1994 hearing, Pioneer's counsel explained: Now if we want to play technical games in this place by me having somebody swear to the Court that this is Edith MacKenzie's [sic] translation, we can do that. But I think, your honor, you know, I don't do that kind of stuff. I don't engage in that kind of behavior in this courtroom. I don't have any question about the authenticity of what Edith MacKenzie has done and I don't question the authenticity of [opposing counsel's] translator. Aside from the fact that opposing counsel provided translations properly sworn to by their translator, counsel's vouching for the authenticity of Edith McKinzie's translations does not sufficiently comply with HRCP Rule 56(e). Some may argue that this court's requirement that counsel comply with HRCP Rule 56(e) is the equivalent of form over substance. However, we believe that HRCP Rule 56(e) provides substance through form. It is the only way that a circuit court, amidst all of its other duties, can efficiently and uniformly insure that summary judgment is granted or not granted based upon evidence that will be admissible at trial. The unverified statements of fact alleged in counsel's memorandum, as well as counsel's oral representations advanced at the hearing on Pioneer's motion, cannot be the basis for the circuit court's award of summary judgment. Indeed, those facts alleged that were unverified or improperly verified were not properly before the circuit court in its determination. See... Miller v. Manuel, 9 Haw.App. 56, 69, 828 P.2d 286, 294 (1991), cert. denied, 72 Haw. 618, 841 P.2d 1075 (1992) (memorandum of law, standing alone, is per se insufficient to support an award of summary judgment). Therefore, on this basis alone, we reverse and remand the matter to the circuit court for further proceedings consistent with this opinion. Professor John Barkai, U.H. Law School Page - 106 AUTHENTICATION PROBLEMS 1B Bob is arrested for robbing the Ace Bar and Grill. When Bob's apartment is searched following his arrest, a handwritten, unsigned note is found in a waste basket. The note reads, “Wait for me here. I am off to steal the car.” Discuss alternative ways, depending upon available evidence, to authenticate the note as having been written by Bob. 2 If you were the Deputy Corporation Counsel bringing a case against Cut Rate Liquor Store and Dan Jones for selling liquor to an intoxicated person (Watkins), how would you introduce into evidence the diagram of the scene which is part of Officer Bier's report from the Hawaii Liquor Commission v. Jones case? Who would be your witness? Prepare questions to do this in class. 3 Same facts. How would you introduce a blackboard diagram of the scene similar to the diagram in Officer Bier's report? How is this different than the diagram that is part of the report? Prepare questions to do this in class. 4 Same facts. How would you introduce the bottle and bag seized by Officer Bier from Walter Watkins? Prepare questions to do this in class. 5 Albert is arrested for sale (to an undercover police officer) and possession of cocaine outside of the Ace Bar and Grill. Three baggies of a white granular substance are found in his pockets during a search. Detective Handler, a uniformed officer makes the arrest and gives the packages to an evidence custodian at the police laboratory who places the package in a locked evidence room. The package is removed from the safe the next day by Ms. Teckie, a laboratory technician who tests the white substance and determines it is cocaine. Teckie returns the remaining cocaine to the evidence room. Before Albert's trial, someone breaks into the evidence room and steals the remaining cocaine for this case (and a lot of other drugs). Albert's lawyer brings a motion to dismiss the prosecution for lack of evidence. What argument(s) should the prosecutor make? What ruling should the judge make? 6B After the robbery, a woman calls the Ace Bar and Grill. She asks to speak to Harry. When Harry answers the phone, the woman says in a terribly nervous voice, “Don't ask who this is. Oh my God, if you want your money back go after Bob and Ray.” The police believe that the caller was Sally, who lives with Bob and Ray. (a) Can the information from the telephone call be admitted through Harry as a witness? What is the necessary foundation? Prepare the necessary questions. (b) After a foundation is laid and before Harry testifies to the content of the telephone conversation, Ray's lawyer objects on the ground that he plans Professor John Barkai, U.H. Law School Page - 107 on calling Sally and that Sally will deny calling Harry. May Harry testify to the content of the conversation? Why or why not? 7A Billy Boy's lawyer has an enlarged color photograph of Billy lying on the pavement right after the accident. The photograph was taken by a newspaper photographer who was passing by the accident scene. However, the photographer has moved to another state and is not available to testify. Can Billy Boy's lawyer introduce the photograph through the testimony of Billy's mother, Barbara Green? Why or why not? 8A Can Billy's lawyer introduce a photograph of the intersection of First and Main, taken six months after the accident? Why or why not? Is the photograph admissible if it includes a new traffic sign that was not there at the time of the accident? What witness is needed to introduce this photo? 9A Can Billy's lawyer introduce an x-ray of Billy's broken bones taken soon after the accident? How would the foundation for the x-ray be different from that for a photograph? 10 In a prosecution for driving without a driver's license, how would the prosecutor prove that the defendant driver did not have a valid license on the day of the offense? 11 How would you authenticate: A) John Barkai's evidence notes from when he took an evidence course at the University of Michigan in 1971? B) A copy of the Hawaii Rules of Evidence currently in effect. C) A copy of the Honolulu Star Bulletin from the day of a crime, quoting a police officer saying “The defendant committed the crime.” (LG 61) D) A partially eaten Hershey's Chocolate Bar that had metal pieces in it that the plaintiff claimed she bit causing her injuries. Professor John Barkai, U.H. Law School Page - 108 BEST EVIDENCE Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook These notes are best to read AFTER you read the rules and the cases. R1001 Best Evidence Rule Artwork, drawings, designs; "other form of data compilation". Artwork, drawings, designs, and the like are included within the coverage of the definition of "writings." Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1320 (9th Cir.1986), cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987). A witness's description of a Global Positioning System monitor display, showing the location and movements of a boat, violated Rule 1002 because the display was a "writing." United States v. Bennett, 363 F.3d 947, 953 (9th Cir.2004), cert. denied 543 U.S. 950, 125 S.Ct. 363, 160 L.Ed.2d 268 (2004). R1004 Unfair to admit duplicate. The second exception to the general admissibility of duplicates is where "in the circumstances it would be unfair to admit the duplicate in lieu of the original." Example—Inadmissible. "[W]hen only a part of the original is reproduced and the remainder is needed for cross-examination or may disclose matters qualifying the part offered or otherwise useful to the opposing party." Advisory Committee's Note to Federal Rule 1003. Example—Inadmissible. In a prosecution for theft of a Social Security check from the mail, it was improper to admit an incomplete photocopy of the check as evidence. United States v. Alexander, 326 F.2d 736, 742-43 (4th Cir.1964). Example—Inadmissible. In a civil fraud action, it was proper to exclude photocopies, prepared for trial, of portions of business records of plaintiff Japanese corporation, where the original records were in Japan, plaintiff offered no excuse for failure to produce them, and defendant had no opportunity to examine the originals to determine whether other, omitted portions might also be relevant. Toho Bussan Kaisha, Ltd. v. American President Lines, Ltd., 265 F.2d 418, 422-24 (2d Cir.1959). Example—Admissible. "[T]he copies of the expense account reports were not prepared with litigation in mind; they came from the microfiche records that Mellon Bank collects in the ordinary course of its business. And the district court undertook a detailed examination of the omitted portions of the originals before finding that the omissions would not have affected the usefulness of the duplicates." United States v. Sinclair, 74 F.3d 753, 760 (7th Cir.1996). Example—Inadmissible. Photocopy of date-stamped DOJ decision letter was inadmissible where key information therein was barely legible and original was never produced. Lozano v. Ashcroft, 258 F.3d 1160, 1166 (10th Cir.2001). R1006 Underlying materials need not be introduced or produced in court. The underlying materials need not be introduced in evidence, and the rule provides that whether to require that they be produced in court is a matter of the court's discretion. United States v. Hemphill, 514 F.3d 1350, 1359 (D.C. Cir. 2008) ("the point of Rule 1006 is to avoid introducing all the documents"), cert. denied, — U S ___, 129 S.Ct. 590, 172 th L.Ed.2d 445 (2008); United States v. Bakker, 925 F.2d 728, 736 (4 Cir.1991); United States v. Strissel, 920 F.2d 1162, 1163 (4th Cir.1990). Voluminousness. "Rule 1006 does not require that it be literally impossible to examine all the underlying records, but only that in-court examination would be an inconvenience." United States v. Possick, 849 F.2d 332, 339 (8th Cir.1988). Example—Admissible. "In the present case, the district court did not err in admitting the summaries. The government's evidence was incredibly voluminous, and it would have been incomprehensible to the jury without summarization." United States v. Thompson, 518 F.3d 832, 859 (10th Cir.2008), cert. denied, U.S. 129 S.Ct. 487, 172 L. Ed. 2d 355 (2008). Professor John Barkai, U.H. Law School Page - 109 Hawaii ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS RULE 1001 DEFINITIONS. RULE 1003 ADMISSIBILITY OF DUPLICATES. RULE 1006 SUMMARIES. For purposes of this article the following A duplicate is admissible to the same extent as The contents of voluminous writings, definitions are applicable: an original unless (1) a genuine question is raised as to the recordings, or photographs which cannot conveniently be (1) “Writings and recordings” consist of letters, authenticity of the original, or (2) in the circumstances it examined in court may be presented in the form of a chart, words, sounds, or numbers, or their equivalent, set down would be unfair to admit the duplicate in lieu of the summary, or calculation. The originals, or duplicates, by handwriting, typewriting, printing, photostating, original. shall be made available for examination or copying, or photographing, magnetic impulse, mechanical or both, by other parties at reasonable time and place. The electronic recording, or other form of data compilation. RULE 1004 ADMISSIBILITY OF OTHER court may order that they be produced in court. (2) “Photographs” include still photographs, EVIDENCE OF CONTENTS. X-ray films, video tapes, and motion pictures. The original or a duplicate is not required, and RULE 1007 TESTIMONY OR WRITTEN (3) An “original” of a writing or recording is the other evidence of the contents of a writing, recording, or ADMISSION OF PARTY. writing or recording itself or any counterpart intended to photograph is admissible if: Contents of writings, recordings, or have the same effect by a person executing or issuing it. (1) Originals lost or destroyed. All originals photographs may be proved by the testimony or An “original” of a photograph includes the negative or are lost or have been destroyed, unless the proponent lost deposition of the party against whom offered or by the any print therefrom. If data are stored in a computer or or destroyed them in bad faith; or party's written admission, without accounting for the similar device, any printout or other output readable by (2) Original not obtainable. No original can be nonproduction of the original. sight, shown to reflect the data accurately, is an obtained by available judicial process or procedure; or “original”. (3) Original in possession of opponent. At a RULE 1008 FUNCTIONS OF COURT AND JURY. (4) A “duplicate” is a counterpart produced by time when an original was under the control of the party When the admissibility of other evidence of the same impression as the original, or from the same against whom offered, the party was put on notice, by the contents of writings, recordings, or photographs under matrix, or by means of photography, including pleadings or otherwise, that the content would be a these rules depends upon the fulfillment of a condition of enlargements and miniatures, or by mechanical or subject of proof at the hearing, and the party does not fact, the question whether the condition has been fulfilled electronic re-recording, or by chemical reproduction, or produce the original at the hearing; or is ordinarily for the court to determine in accordance with by other equivalent techniques which accurately (4) Collateral matters. The writing, recording, the provisions of rule 104. However, when an issue is reproduce the original. or photograph is not closely related to a controlling issue. raised (1) whether the asserted writing ever existed, or (2) (5) A “public record” means any writing, whether another writing, recording, or photograph memorandum, entry, print, representation, report, book RULE 1005 PUBLIC RECORDS. produced at the trial is the original, or (3) whether other or paper, map or plan, or combination thereof, that is in The contents of a public record, if otherwise evidence of contents correctly reflects the contents, the the custody of any department or agency of government. admissible, may be proved by copy, certified as correct in issue is for the trier of fact to determine as in the case of accordance with rule 902 or testified to be correct by a other issues of fact. RULE 1002 REQUIREMENT OF ORIGINAL. witness who has compared it with the original. If a copy To prove the content of a writing, recording, or which complies with the foregoing cannot be obtained by photograph, the original writing, recording, or the exercise of reasonable diligence, then other evidence photograph is required, except as otherwise provided in of the contents may be given. these rules or by statute. Professor John Barkai, U.H. Law School Page - 110 UNITED STATES V. DUFFY, 454 F.2d 809 (5th Cir. 1972) WISDOM, Circuit Judge: The defendant-appellant James H. Duffy was convicted by a jury of transporting a motor vehicle in interstate commerce from Florida to California knowing it to have been stolen in violation of 18 U.S.C. 2312. He was sentenced to imprisonment for a term of two years and six months. On this appeal, Duffy complains of error in the admission of certain evidence and of prejudice resulting from members of the jury having been present during a sentencing in an unrelated case. We affirm.... Both the local police officer and the F.B.I. agent testified that the trunk of the stolen car contained two suitcases. Found inside one of the suitcases, according to the witnesses, was a white shirt imprinted with a laundry mark reading “D-U-F”. The defendant objected to the admission of testimony about the shirt and asked that the government be required to produce the shirt.1 The trial judge overruled the objection and admitted the testimony. This ruling is assigned as error. The appellant argues that the admission of the testimony violated the “Best Evidence Rule”. According to his conception of the “Rule”, the Government should have been required to produce the shirt itself rather than testimony about the shirt. This contention misses the import of the “Best Evidence Rule”. The “Rule”, as it exists today, may be stated as follows: [I]n proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent. (Emphasis supplied.) ... Although the phrase “Best Evidence Rule” is frequently used in general terms, the “Rule” itself is applicable only to the proof of the contents of a writing. The “Rule” is not, by its terms or because of the policies underlying it, applicable to the instant case. The shirt with a laundry mark would not, under ordinary understanding, be considered a writing and would not, therefore, be covered by the “Best Evidence Rule”. When the disputed evidence, such as the shirt in this case, is an object bearing a mark or inscription, and is, therefore, a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing. See 4 Wigmore, Evidence s 1182 and cases cited therein; McCormack, Evidence 411-412 and cases cited therein. In reaching his decision, the trial judge should consider the policy-consideration behind the “Rule”. In the instant case, the trial judge was correct in allowing testimony about the shirt without requiring the production of the shirt. Because the writing involved in this case was simple, the inscription “D-U-F”, there was little danger that the witness would inaccurately remember the terms of the “writing”. Also, the terms of the “writing” were by no means central or critical to the case against Duffy. The crime charged was not possession of a certain article, where the failure to produce the article might prejudice the defense. The shirt was collateral evidence of the crime. Furthermore, it was only one piece of evidence in a substantial case against Duffy. * * * Affirmed. 1 . It is undisputed that the shirt was available to be produced and that there was no reason for failure to produce the shirt. Professor John Barkai, U.H. Law School Page - 111 SEILER v. LUCASFILM 808 F.2d 1316 (1987) FARRIS, Circuit Judge: Copyright Office “reconstructions” of the originals as they had appeared in 1976 and Lee Seiler, a graphic artist and creator of 1977. science fiction creatures, alleged copyright infringement by George Lucas and others who Seiler contends that Lucas' Walkers were created and produced the science fiction copied from Seiler's Striders which were movie “The Empire Strikes Back.” Seiler allegedly published in 1976 and 1977. Lucas claimed that creatures known as “Imperial responds that Seiler did not obtain his Walkers” which appeared in The Empire copyright until one year after the release of Strikes Back infringed Seiler's copyright on The Empire Strikes Back and that Seiler can his own creatures called “Garthian Striders.” produce no documents that antedate The The Empire Strikes Back appeared in 1980; Empire Strikes Back.... Seiler did not obtain his copyright until 1981. The best evidence rule embodied in Rules Because Seiler wished to show blown-up 1001-1008 represented a codification of comparisons of his creatures and Lucas' longstanding common law doctrine. Dating Imperial Walkers to the jury at opening back to 1700, the rule requires not, as its statement, the district judge held a pre-trial common name implies, the best evidence in evidentiary hearing. At the hearing, Seiler every case but rather the production of an could produce no originals of his Garthian original document instead of a copy. Many Striders nor any documentary evidence that commentators refer to the rule not as the best they existed before The Empire Strikes Back evidence rule but as the original document appeared in 1980. The district judge, applying rule. the best evidence rule, found that Seiler had ... lost or destroyed the originals in bad faith under Fed.R.Evid. 1004(1) and denied We hold that Seiler's drawings were admissibility of any secondary evidence, even “writings” within the meaning of Rule 1001(1); the copies that Seiler had deposited with the they consist not of “letters, words, or Copyright Office. With no admissible numbers” but of “their equivalent.” To hold evidence, Seiler then lost at summary otherwise would frustrate the policies judgment. underlying the rule and introduce undesirable inconsistencies into the application of the Seiler contends that he created and rule.... published in 1976 and 1977 science fiction creatures called Garthian Striders. In 1980, The modern justification for the rule has George Lucas released The Empire Strikes expanded from prevention of fraud to a Back, a motion picture that contains a battle recognition that writings occupy a central sequence depicting giant machines called position in the law. When the contents of a Imperial Walkers. In 1981 Seiler obtained a writing are at issue, oral testimony as to the copyright on his Striders, depositing with the terms of the writing is subject to a greater risk Professor John Barkai, U.H. Law School Page - 112 of error than oral testimony as to events or copies or exact duplicates but of other situations. The human memory is not “reconstructions” made after The Empire often capable of reciting the precise terms of a Strikes Back. In short, Seiler claims that the writing, and when the terms are in dispute only movie infringed his originals, yet he has no the writing itself, or a true copy, provides proof of those originals. reliable evidence. To summarize then, we observe that the importance of the precise The dangers of fraud in this situation are terms of writings in the world of legal relations, clear. The rule would ensure that proof of the the fallibility of the human memory as reliable infringement claim consists of the works evidence of the terms, and the hazards of alleged to be infringed. Otherwise, inaccurate or incomplete duplication are the “reconstructions” which might have no concerns addressed by the best evidence resemblance to the purported original would rule.... suffice as proof for infringement of the original. Furthermore, application of the rule Viewing the dispute in the context of the here defers to the rule's special concern for the concerns underlying the best evidence rule, we contents of writings. Seiler's claim depends on conclude that the rule applies. McCormick the content of the originals, and the rule would summarizes the rule as follows: [I]n proving exclude reconstituted proof of the originals' the terms of a writing, where the terms are content. Under the circumstances here, no material, the original writing must be “reconstruction” can substitute for the produced unless it is shown to be unavailable original. for some reason other than the serious fault of the proponent. McCormick on Evidence s 230, AFFIRMED. at 704. The contents of Seiler's work are at issue. There can be no proof of “substantial similarity” and thus of copyright infringement unless Seiler's works are juxtaposed with Lucas' and their contents compared. Since the contents are material and must be proved, Seiler must either produce the original or show that it is unavailable through no fault of his own. Rule 1004(1). This he could not do. The facts of this case implicate the very concerns that justify the best evidence rule. Seiler alleges infringement by The Empire Strikes Back, but he can produce no documentary evidence of any originals existing before the release of the movie. His secondary evidence does not consist of true Professor John Barkai, U.H. Law School Page - 113 STATE v. ESPIRITU, 117 Hawai'i 127, 176 P.3d 885 (2008) Best Evidence, Hearsay, Refreshing Recollection Background: Defendant was convicted of attempted murder in the second degree, carrying or use of a firearm in the commission of a separate felony, and place to keep firearm. The ICA affirmed. Holdings: (1) victim's testimony about text messages received from defendant was admissible under hearsay exception for party admissions; (2) original text messages were not required in order for victim to testify regarding text messages; (3) original text messages that defendant sent to victim were not lost or destroyed due to the bad faith of the State; (4) police report describing text messages victim received from defendant constituted hearsay; (5) victim was entitled to use police report to refresh memory regarding text messages; and (6) defendant was entitled to new trial based on prosecutor's misstatement of the law regarding extreme mental or emotional disturbance defense. Affirmed in part, vacated in part, and remanded for new trial. Nakayama, J., dissented and filed opinion. (on the issue of prosecutor’s misstatement of the law) Opinion of the court by ACOBA, J. ..we affirm the ICA judgment in part [on the issue of text messages]… [The defendant and complainant once had a dating/sexual relationship. While the complainant was having sex with another man, the defendant/petitioner entered the woman’s house, struggled with the other man, put a gun to the face of the complainant, and then shot the complainant. The defendant did not testify at his trial.] We hold that (1) the ICA did not err in ruling that the court acted in accordance with the HRE, including the hearsay and best evidence rules, in allowing the Complainant to review a police report describing the four text messages allegedly sent to her by Petitioner and to testify about those messages, … Following the shooting, Detective Chad Viela interviewed [the Complainant] ... [who] showed Detective Viela four text messages from her cell phone that she had allegedly received from [Petitioner] [in the week before the shooting]. Defense counsel contended that the Complainant's testimony regarding the text messages would be “double hearsay” because the messages were copied onto note paper that was destroyed and the messages were copied by Detective Viela rather than by the Complainant herself. Respondent argued that the contents of the text message[s] were “not hearsay because [they are] statement[s] from the [Petitioner]” and therefore fit within the hearsay exception that allows the introduction into evidence of “[a]ny statement by the party opponent.” Respondent also argued that the Complainant was allowed to testify on the messages after reviewing the police report because “[w]hat was copied on the [report] is going to be used to refresh her recollection.” Defense counsel countered Respondent's points by maintaining that the hearsay exception was inapplicable because “the messages may have come from [Petitioner's] cell phone, but that doesn't prove who they are Professor John Barkai, U.H. Law School Page - 114 from,” and, thus, the text messages were “still hearsay.” Counsel also declared that the Complainant's memory would not be refreshed as to the contents of the messages when she received them because “what she's going to have a memory of is reading the report, which is still hearsay.” The court stated that the Complainant's testimony was not the best evidence with regard to the text messages as “the best evidence probably would have been photographs” of the actual messages on the cell phone. Nonetheless, the court permitted the Complainant to testify on the content of the text messages, reasoning that the issues raised by defense counsel would “go to the weight” of the testimony. [The text messages were: 1) “The true face shows all the guys and girls were right.” 2) “I'm tired of being the sucker. What goes around comes around.” 3) “You should have talked to me, but you're too pig-headed for our kind. There's a new message going out to the locals.” 4) “I have to say I'm so, so sorry.” … Although Petitioner and Respondent cite no cases, they are correct as to their position that a text message is hearsay if offered to prove the truth of the matter asserted. See State v. Franklin, 280 Kan. 337, 121 P.3d 447, 451-52 (2005) (holding that a text message constituted hearsay insofar as it was offered to prove the truth of the statement asserted). However, Petitioner concedes that the actual text messages would arguably be admissible as an exception to the hearsay rule as an admission by a party-opponent. The text messages show Petitioner's history of threats against the Complainant and, hence, were admissions by a party-opponent. If evidence is hearsay, then testimony about the evidence is also hearsay. See Bueno v. State, 677 S.W.2d 261, 265 (Tex.Ct.App.1984) (holding that police officer's testimony about writing on a card given to him by the motel manager was hearsay where it was offered to prove the motel room was registered to the defendant). Correspondingly, if evidence is hearsay admissible under an exception to the rule against hearsay, then testimony about such evidence is admissible. See People v. Taylor 117 A.D.2d 829, 499 N.Y.S.2d 151 (1986) (holding that victim's writing in his own blood of attacker's name was hearsay admissible under the exceptions for dying declarations and excited utterances and therefore, testimony from witnesses regarding the writing was admissible). Thus, the Complainant's testimony about the text messages is admissible because the text messages themselves would be admissible under the exception for party admissions. Petitioner also argues that the court committed error in allowing the Complainant to testify “because her testimony neither constituted the original nor a duplicate of the text message” as required by HRE Rule 1002 (1993). Petitioner contends that the original text messages for purposes of HRE Rule 1002“would have consisted of the cell phone itself with the saved messages or a printout of the messages.” Respondent counters that (1) HRE 1002 is inapplicable in this case because a text message does not qualify as a writing, recording, or photograph; (2) there was no evidence that it was possible to obtain a printout of the messages; (3) that no photographs were taken of the messages does not preclude the admission of the Complainant's testimony about the messages; (4) even if HRE Rule 1002 is applicable here, HRE Rule 1004 (1993) allows the admission of other evidence in place of the original where the original is lost or destroyed; and (5) Petitioner failed to raise an objection to the Complainant's testimony based on HRE Rule 1002 and, thus, Professor John Barkai, U.H. Law School Page - 115 waived the right to raise an argument based on HRE Rule 1002. Contrary to Respondent's assertion, a text message is a writing because it consists of letters, words, or numbers set down by mechanical or electronic recording, or other form of data compilation. Although neither party makes this assertion, text messages received on cell phones appear akin to messages received on computers and email for purposes of HRE Rule 1002. See Laughner v. State, 769 N.E.2d 1147, 1159 (Ind.Ct.App.2002) (holding that text messages sent between computers through an internet chat room were subject to the original writing rule and a printout of the messages was an original for purposes of the rule). Thus, HRE Rule 1002 which requires an original in order to prove the content of a writing is applicable unless an exception under the HRE or a statute provides otherwise. Although HRE Rule 1002 would ordinarily preclude the admission of testimony about the text messages because such testimony is not an original, the testimony here is admissible because HRE Rule 1004 applies to the text messages such that other evidence may be admitted to prove the content of the text messages. The Complainant no longer had the actual text messages because the Complainant no longer had the cell phone or the cell phone service from Verizon through which she received the messages. No other original version of the text messages appear to have existed because there is no indication from the record that the text messages were ever printed out, nor is it clear that it was possible for the messages to be printed from the phone. Thus, for purposes of HRE Rule 1004, the original text messages were “lost or destroyed.” Petitioner argues that “the original writing was lost or destroyed due to the bad faith of the State of Hawai‘i.” However, there is no evidence that Respondent exercised bad faith that led to the loss of the cell phone, which Petitioner contends was the “original” for purposes of HRE Rule 1002. Bad faith cannot reasonably be inferred because the Complainant failed to preserve text messages for over two years on a cell phone for which she discontinued service. Similarly, bad faith cannot be inferred because the text messages were not printed out when there is no indication that such a printout was even possible. Indeed, courts agree that HRE Rule 1004(1) is “particularly suited” to electronic evidence “[g]iven the myriad ways that electronic records may be deleted, lost as a result of system malfunctions, purged as a result of routine electronic records management software (such as the automatic deletion of e-mail after a set time period) or otherwise unavailable....” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 580 (D.Md.2007). See also King v. Kirkland's Stores, Inc., No. 2:04-cv-1055-MEF, 2006 WL 2239203, at *5 (D.Ala. Aug. 4, 2006) (unpublished decision) (holding that plaintiff's testimony regarding the content of an e-mail from defendant was admissible although plaintiff argued only that a copy of the e-mail, as opposed to the original or sole copy, was in the possession of the defendant); Bidbay.com, Inc. v. Spry, No. B160126, 2003 WL 723297, at *7 (Cal.App. Mar. 4, 2003) (unpublished opinion) (stating that the exception to the original writing rule permitting the substitution of secondary evidence would apply in light of the “tenuous and ethereal nature of writings posted in Internet chat rooms and message boards”). [I]t appears that the cell phone containing the text messages is unavailable. The Complainant testified that she changed cell phone service providers since the time of the accident. The plain language of HRE Rule 1004 states that an original or duplicate is not required to prove the contents of a writing or recording so long as the originals are lost or destroyed and such loss or destruction was not due to the bad faith of the proponent of the evidence. There is no requirement that the proponent must show that it was impossible or difficult to download or print out the writing at the time that it existed. 3. Professor John Barkai, U.H. Law School Page - 116 Respondent contends that Petitioner may not argue against the admission of the Complainant's testimony under HRE Rule 1002 as Petitioner did not raise an objection under HRE Rule 1002 at trial. Petitioner counters that the court itself acknowledged that the Complainant's testimony was not the best evidence and that it had a “running objection” to the entire line of questioning about the text messages. Respondent correctly states the law that “failure to properly object to the introduction of evidence in violation of the original writing rule likely will result in a waiver of the error on appeal.” Lorraine, 241 F.R.D. at 579 (citing Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 1002.04[a] (Joseph M. McLaughlin ed., Matthew Bender 2d ed.1997)). However, because the Complainant's testimony regarding the text messages was admissible under HRE Rule 1004 as described above, it is not necessary to resolve the question of whether Petitioner did raise an objection under HRE Rule 1002. The crux of Petitioner's argument against the admission of the Complainant's testimony is that the Complainant's testimony was inadmissible because it consisted of the Complainant reading excerpts from a police report typed by a clerk where the reports were based on notes copied by the police officer who interviewed the Complainant and who examined the actual text messages. Respondent does not make any argument that the police report, typed by a clerk from notes made by the officer who observed the actual messages, was not hearsay or that this report was hearsay admissible under an exception to the rule against hearsay. Preliminarily, Petitioner is correct that the police report was hearsay. The police report did not qualify under the exception for past recollection recorded under HRE 802.1(4) The police report describing the text messages is hearsay and is inadmissible under the exceptions to the hearsay rule for past recollections recorded under HRE 802.1(4) and public records and reports under HRE 803(b)(8). Respondent has not argued that the police report is not hearsay or is hearsay admissible under an exception to the rule against hearsay. Thus, the police report itself was inadmissible hearsay and recitation of the report by the Complainant would therefore be inadmissible hearsay. Although recitation of the police report by the Complainant would be improper, Petitioner and Respondent both agree that the Complainant could testify about the text messages after viewing the police report if the report was used to refresh her recollection about the text messages she allegedly received from Petitioner. [I]t appears that the Complainant did remember the text messages and that the Complainant used the report to refresh her recollection. The evidence does not suggest that the Complainant's memory was not refreshed as to the language of the messages or that the Complainant was merely reading from the report. … that the Complainant could recall substantial details about the messages prior to reading the report suggests that the Complainant in fact possessed a memory of the messages that only needed refreshment via the report. Based on the foregoing, we affirm … the ICA's holding that Complainant's testimony on the text messages was properly admitted…but vacate the ICA's judgment insofar as it adjudged that there was no error in Respondent's closing argument as to the EMED (extreme mental or emotional disturbance) defense. Professor John Barkai, U.H. Law School Page - 117 BEST EVIDENCE / ORIGINAL WRITINGS PROBLEMS A. Tenant sues Landlord for breaching the terms of their lease. The Tenant testifies that the lease requires the Landlord to pay for all appliance repairs costing more than $50, but the tenant does not produce the lease at trial. The Landlord objects to the tenants testimony on best evidence grounds. Is the testimony admissible? (S&S 1) B. Tenant testifies that he had to have his refrigerator repaired at a cost of $200 and that the landlord failed to reimburse him. Can the Tenant offer that oral testimony about the cost of the repairs without the repair bill being introduced? (S&S 2) C. The plaintiff P sued the defendant D for breach of contact involving the sale of computer monitors. The sole issue at trial was whether the number of monitors stated in the contract was 10 or 100. Against a best evidence objection, will the plaintiff's oral testimony be admitted? What if the defendant offers a duplicate of the contract at trial? D. Can a witness testify that the defendant in an assault and battery criminal case hit a victim on the head with an aluminum “Demarini” softball bat without introducing the bat? (Best 8-5) “Demarini” is the brand name printed on the bat. E. An undercover police officer secretly tape-recorded a conversation with the defendant who is now on trial charged with selling illegal drugs to the officer. The officer is about to testify in court to what the defendant said during the alleged sale. The defense lawyer, who knows about the tape recording, objects on the grounds that the tape is the best evidence. (Best 8-1) Is the officer's oral testimony barred? 1. Paula brings a defamation action against Dan based upon statements made by Dan in a letter to Paula's employer. At trial, the letter is neither produced nor shown to be unavailable. Does Dan have a valid best evidence objection if the employer tries to testify about what he learned from Dan in the letter about Paula? (MK 14A). 2. In action of ejectment to recover possession of land, P claims to be the owner entitled to possession. D admits P's possession but denies P's ownership. At trial, P proposes to testify that D executed a deed by which she conveyed title in fee simple to P. D objects on best evidence grounds. Is P's testimony admissible? (G 984 3rd) 3. P's airplane crash-landed. P survived. P sues D, the owner of an airport service station, claiming that D put automotive rather than aviation gas in the plane causing motor failure. P calls an aeronautics expert who testifies that a person can tell the type of gasoline used in an airplane by the appearance of the sparkplugs. The expert describes the appearance of sparkplugs when automotive gas has been used. P testifies that following the crash landing she removed the sparkplugs and kept them in her safe deposit box, where they are now. P's attorney asks her to describe the Professor John Barkai, U.H. Law School Page - 118 appearance of the plugs. D objects on grounds of the best evidence rule. What ruling and why? (G 983) 4. Auto accident. After an accident, D filled out an accident report form. At trial, P objects to D testifying to the details of the accident on the grounds that an accident report exists and that D is testifying to the contents of a document in violation of the best evidence rule. What ruling and why? 5. While in police custody with Sergeant Friday, and after receiving Miranda warnings, Aaron orally confesses to arson. The oral confession is tape recorded. Aaron then writes and signs a confession. At trial, can Sergeant Friday testify about the oral confession? About the written confession? About the tape recording? (G 991, SF #257) 6. In trial where D is charged with selling child pornography, Officer testifies about what was shown in the photos that were sold by D. D objects citing the best evidence rule. Is the Officer's testimony admissible? 7. To prove that Walter Watkins was in Honolulu last April 5th, Buddy testifies that he and Watkins took a sunset cruise together. Buddy offers a duplicate of a photograph taken by another friend while all three were aboard ship. Is the duplicate admissible. 8. D, who was a witness in a prior trial, is now charged with perjury based upon his testimony in the prior trial. To prove what D's former testimony was at a prior trial, a courtroom spectator from the first trial is called to testify about what D's testimony was during the trial. D's lawyer objects claiming that the best evidence rule requires a transcript of the first trial. What result? 9. Bank robbery prosecution. A photograph of the robber is taken by a hidden surveillance camera. The bank security officer, who was not present at the time of the robbery, testifies that he removed the film from the camera after the robbery, supervised its development, and examined the photograph that was produced. He offers to testify that the person shown in the photograph robbing the bank is the defendant who is sitting in court. The photograph is not offered into evidence. D objects on best evidence grounds. What ruling? (MK 14 F, 990) 10. P, an owner of a home sues D, P's tenant, for back rent. D claims he paid the rent but does not offer a receipt. P objects on best evidence grounds because the receipt was not offered. Whenever D pays P the rent, P gives D a receipt. What result? Why? 11. P also owns commercial property. P sues D, a commercial tenant for back rent on the commercial building. D's only witness is Andrea Accountant. Andrea is a new employee who did not work for D during the time D claims to have made the rent payment. Andrea reviewed the company's books, checks, and receipts and is prepared to testify that the company made the rent payment. Andrea does not offer the books, checks, or receipts. P objects on best Professor John Barkai, U.H. Law School Page - 119 evidence grounds. What result? Why? 12. The Unlisted Number. Charge: knowingly transporting a stolen vehicle in interstate commerce. At trial, D concedes that the automobile was stolen at the time of interstate transport but denies that he knew it was stolen. The government's first witness, W, an FBI agent, testified that at the time of arrest, D told him that he had bought the automobile from “Bill Holt” of “Bill Holt's Body Shop” on the west side of Chicago. The agent also attempted to testify that he had checked the Chicago telephone directory for the area and that there was no listing for “Bill Holt,” “Bill Holt's Body Shop,” “Bill Holdt,” “Bill Hult,” or any other reasonable spelling variation of those names. D objected to the agent's testimony on grounds of Rule 1002. The court ruled that the rule does not apply to testimony that books or records have been examined and found not to contain any reference to a designated matter. Is the court's ruling correct? (G 997) 13. The Tax Evader. Brad Trimble is prosecuted for alleged tax evasion, and the government calls Charles Urban, an IRS accountant to testify. Urban has examined Trimble's bank records, which reflect more than 90 deposits and 300 withdrawals over the year, and the prosecutor offers (1) Urban's testimonial summary of deposits and disbursements from the account and (2) a chart prepared by Urban from the bank records summarizing entries deemed significant from the prosecutor's perspective. Trimble raises a Best Evidence objection, but the prosecutor invokes FRE 1006. What result, and why? (MK 1002) 14. Action for personal injuries. A doctor testifies that an x-ray revealed Plaintiff suffered a broken arm. The defense objects under Rule 1002. How should the court rule? (LG63/4) 15. Same case. The doctor testifies that, in her opinion, Plaintiff is unable to work. She bases this opinion on her review of Plaintiff’s x-ray. The defense objects under Rule 1002. How should the court rule? (LG63/5) 16. Action for infringement of computer trade secrets. Plaintiff offers into evidence a printout of its software source code that was created from the disk on which the software resides. The printout is offered so it can be compared line-for-line with a printout of Defendant’s software. Defendant objects under Rule 1002 to the printout of Plaintiff’s software. How should the court rule? (LG63/6) 17. Action for breach of contract. Plaintiff offers a photocopy of the contract. Is this an original? If not, is it still admissible? (LG66/1). 18. Same case. Plaintiff offers a handwritten copy of the contract. Is it admissible? (LG66/2) Professor John Barkai, U.H. Law School Page - 120 IMPEACHMENT Recent Case Notes from Goode & Wellborn’s 2010-2011 Courtroom Evidence Handbook Best to read the information below after reading the rules and cases. R609 - Conviction offered for other purpose. Like Rule 608, Rule 609 applies only when the conviction is being offered to demonstrate the witness's untruthful character. Rule 609 does not apply when the conviction is offered for some other purpose, such as: - To prove a material issue in the case. E.g., United States v. Rogers, 918 F.2d 207, 210-11 (D.C.Cir.1990) (previous conviction admissible under Rule 404(b) to prove intent). - To rebut factual assertions made by the witness. E.g., United States v. Gilmore, 553 F.3d 266, 270-73 (3d Cir. 2009) (permitting defendant to be impeached with two prior drug distribution convictions after he testified, on direct examination, that he never dealt drugs). R613 Prior Statements of Witnesses Kinds of statements. A witness may be impeached with any kind of prior statement—oral or written, sworn or unsworn. See Jankins v. TDC Management Corp., Inc., 21 F.3d 436, 442 (D.C.Cir.1994). A witness may also sometimes be impeached with her prior silence. See Authors' Comment (4) infra. Statements by an accused that were taken in violation of Miranda, and thus rendered inadmissible as substantive evidence, may nevertheless be used to impeach the accused's testimony at trial. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Similarly, an accused's statements to an informer that were taken in violation of the accused's Sixth Amendment right to counsel may be used to impeach contradictory testimony given by the accused at trial. Kansas v. Ventris, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009). Evidence that an accused gave and then withdrew a notice of intent either to offer an alibi defense, to rely on an insanity defense or introduce expert testimony concerning her mental condition, or to claim a defense of public authority may not be used against the accused. See Fed.R.Crim.P., Rules 12.1(f), 12.2(e), 12.3(e). Prior statement must be inconsistent with testimony. Although the witness's prior statement must be inconsistent with her trial testimony, direct contradiction is not required. United States v. Richardson, 515 F.3d 74, 84 ( 1st Cir. 2008), cert. denied, U.S. ____, 128 S.Ct. 2518, 171 L.Ed.2d 799 (2008); United States v. Denetclaw, 96 F.3d 454, 458 (10th Cir.1996), cert. denied, 519 U.S. 1141, 117 S.Ct. 1014, 136 L.Ed.2d 891 (1997). One frequently-invoked test is "could the jury reasonably find that a witness who believed the truth of the facts testified to would have been unlikely to make a prior statement of this tenor?" McCormick, Evidence § 34 (5th ed. 1999). See also United States v. Barile, 286 F.3d 749, 755 (4th Cir.2002) ("A prior statement is inconsistent if it, 'taken as a whole, either by what it says or by what it omits to say affords some indication that the fact was different from the testimony o f the witness whom it sought to contradict.' "). (a) Direct inconsistency. Testimony that varies from a witness's previous statement regarding a material fact certainly meets any standard of inconsistency. (b) Prior silence or less detailed prior statement. A witness may sometimes be impeached by her prior silence or with prior statements that she made that were less detailed than her testimony. The circumstances surrounding the prior silence or statements must have been such that the witness would have been expected to speak out or to provide greater detail. United States v. Vaughn, 370 F.3d 1049, 1053 n.2 (c) Prior claim of lack of memory. (d) Current claim of lack of memory. (e) Omission of details previously related. (f) Witness has not yet testified. Professor John Barkai, U.H. Law School Page - 121 HRE IMPEACHMENT OVERVIEW No Rules: CAPACITY & CONTRADICTORY FACTS RULE 607 - can impeach a witness you called for direct RULE 608 CHARACTER AND CONDUCT OF WITNESS. For PREVIOUS witness (a) Form: opinion or reputation (1) Limit: only truthfulness or untruthfulness, and (2) Only after ATTACK by opinion, reputation, or otherwise. [Yes: 609; no BIM; maybe: contradiction] No bolstering (b) Specific instances of conduct of (un)truthfulness. FACT wit: intrinsic, by right; extrinsic, in discretion of court CHARACTER wit: 1) treated as FACT WITNESS as to his/her own character for truth 2) RE: specific instances about character of prior FACT WITNESS - intrinsic impeachment, by right - extrinsic, PROHIBITED RULE 609 CONVICTIONS of WITNESSES (reverse sentences) (a) Crim Def wears a halo (unless big mouth or stupid lawyer) Other Wits, only with dishonesty crimes (felony & misdemeanors) (b) pardon. .. not admissible (c) Juvenile convictions. .. same as adults (halo & dishonesty) (d) appeals. ..still admissible RULE 609.1 [EXTRINSIC] Evidence of BIAS, INTEREST, OR MOTIVE [BIM] (a) you can impeach with BIM [not in FRE but it's the common law] (b) Foundation: ... on cross-examination (traditional common law foundation: person, place, time, substance) RULE 612 WRITING USED TO REFRESH MEMORY. ... uses a writing to refresh ... (1) While testifying, [a right] (2) Before testifying, [discretion] opponent entitled to PRODUCE at the hearing, to [in camera examination] INSPECT it, to [sanctions for failure to turn over] CROSS-examine the witness thereon, and to INTRODUCE ... portions RULE 613 PRIOR STATEMENTS (a) Intrinsic: Can ambush the (Queen) Wit, but on request the impeaching material must be shown or disclosed to opposing counsel. (b) Extrinsic: traditional foundation (person, place, time, substance) is required before the impeachment (c) Prior consistent statement admissible if: (1) used to counter a later PIS made closer to trial (PCS was before the PIS) (2) used to counter express or implied charge of (later) recent fabrication or BIM, or (PCS was before) (3) used to counter attack on memory (PCS made when the memory was fresh) Professor John Barkai, U.H. Law School Page - 122 FRE IMPEACHMENT OVERVIEW No Rules: CAPACITY, CONTRADICTORY FACTS, BIAS RULE 607. - can impeach a witness you called for direct RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS For PREVIOUS witness (a) Form: opinion or reputation (1) Limit: only truthfulness or untruthfulness (2) Only after ATTACK by opinion, reputation, or otherwise. [Yes: 609; no BIM; maybe: contradiction] No bolstering (b) Specific instances of conduct of (un)truthfulness NO EXTRINSIC use (you are stuck with the answer) (except 609) In judge's discretion, (1) intrinsic cross of THIS FACT WITNESS' character for (un)truthfulness [Haven't you ....? Didn't you ...?] (2) intrinsic cross of CHARACTER WITNESS about prior bad acts of another FACT WITNESS. [Are you aware that ...?] RULE 609. CONVICTIONS (2) all dishonesty or false statement crimes against anyone with no balance (misdemeanors too) (a) Felony (non-dishonesty) Admit against Crim Def if probative outweighs prejudicial [favors exclusion] Admit against all others, after 403 balance [favors admission] (b) Time limit. if more than 10 years since release or conviction, probably stale and inadmissible . [advance written notice] (c) pardon. ... conviction not admissible [rehab + stayed clean, or innocent] (d) juvenile convictions. NO except Davis v. Alaska (e) appeals. ..still admissible RULE 612. WRITING USED TO REFRESH MEMORY Except Jencks Act (USA doesn't have to give up statements until after government witness has testified on direct) ... uses a writing to refresh ... (1) While testifying, [a right] (2) Before testifying, [in judge's discretion] opponent entitled to PRODUCE at the hearing, to INSPECT it, to CROSS-examine the witness thereon, and to INTRODUCE ... portions [in camera examination] [sanctions for failure to turn over] RULE 613. PRIOR STATEMENTS OF WITNESSES (PIS) (a) Intrinsic: Can ambush the (Queen) Wit, but on request the impeaching material must be shown or disclosed to opposing counsel. (b) Extrinsic: Queen is alive, but ailing - don't have to bother her now - witness is afforded an opportunity to explain or deny [AT ANY TIME!] and - the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. Professor John Barkai, U.H. Law School Page - 123 RULE 607 WHO MAY IMPEACH. The credibility of a witness may be attacked by ANY party, including the party calling the witness. The HRE & FRE are identical. This provision differs from the common law, which did not allow a party to impeach a witness it had called. Professor John Barkai, U.H. Law School Page - 124 RULE 609 IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME. HAWAII FEDERAL - Amended in 2006 Before “restyled” RULE 609 IMPEACHMENT BY EVIDENCE OF RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME CONVICTION OF CRIME. (a) General rule. For the purpose of attacking the character for truthfulness of a witness, (a) General rule. For the purpose of attacking the credibility (1) evidence that a witness other than an accused has been convicted of a crime shall be of a witness, evidence that the witness has been convicted of a admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in crime is inadmissible except when the crime is one involving excess of one year under the law under which the witness was convicted, and evidence that dishonesty. However, in a criminal case where the defendant takes an accused has been convicted of such a crime shall be admitted if the court determines that the stand, the defendant shall not be questioned or evidence the probative value of admitting this evidence outweighs its prejudicial effect to the accused; introduced as to whether the defendant has been convicted of a and crime, for the sole purpose of attacking credibility, unless the (2) evidence that any witness has been convicted of a crime shall be admitted, regardless defendant has oneself introduced testimony for the purpose of of the punishment, if it readily can be determined that establishing the elements of the crime establishing the defendant's credibility as a witness, in which case required proof or admission of an act of dishonesty or false statement by the witness. the defendant shall be treated as any other witness as provided in (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than this rule. ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (b) Effect of pardon. Evidence of a conviction is not (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate a pardon. of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, (c) Juvenile convictions. Evidence of juvenile convictions is annulment, or other equivalent procedure based on a finding of innocence. admissible to the same extent as are criminal convictions under (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under subsection (a) of this rule. this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (d) Pendency of appeal. The pendency of an appeal therefrom (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a does not render evidence of a conviction inadmissible. Evidence conviction inadmissible. Evidence of the pendency of an appeal is admissible. of the pendency of an appeal is admissible. Professor John Barkai, U.H. Law School Page - 125 HAWAII - HRE RULE 609 IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME. Reverse first two sentences (However,) in a criminal case where the Crim Def wears a halo defendant takes the stand, the defendant shall not be questioned or evidence No impeachment on any crime! introduced as to whether the defendant has been convicted of a crime, for the sole purpose of attacking credibility, unless the defendant has oneself Except Big mouth defendant introduced testimony for the purpose of or establishing the defendant's credibility as a Stupid defense lawyer witness, in which case the defendant shall (calls character W) be treated as any other witness as provided in this rule. <--- State v. Santiago language (a) General rule. For the purpose of ALL Ws (EXCEPT crim def): attacking the credibility of a witness, evidence that the witness has been only dishonesty convicted of a crime is inadmissible except (felony or misdemeanor) when the crime is one involving - not robbery or theft dishonesty. (b) Effect of pardon. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of a NOT Admissible pardon. (c) Juvenile convictions. Evidence of SAME AS ADULT juvenile convictions is admissible to the same extent as are criminal convictions Halo for crim def under subsection (a) of this rule. dishonesty for others (d) Pendency of appeal. The pendency Still admissible. of an appeal therefrom does not render evidence of a conviction inadmissible. You can rebut with “But I am Evidence of the pendency of an appeal is appealing.” admissible. Professor John Barkai, U.H. Law School Page - 126 FEDERAL FRE 609 IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME Before “restyled” (a) General rule. For the purpose of attacking the character A focus on the for truthfulness of a witness, character trait (2) evidence that any witness has been convicted of a crime ANY DISHONESTY shall be admitted, regardless of the punishment, if it readily OR FALSE can be determined that establishing the elements of the crime STATEMENT CRIME required proof or admission of an act of dishonesty or false SHALL be use on statement by the witness. ANYONE including crim def (NO BALANCE) (1) evidence that a witness other than an accused has been Any witness convicted of a crime shall be admitted, EXCEPT Crim Def subject to Rule 403, SHALL admit w/ 403 balance if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness for felonies was convicted, (favors admission) and evidence that an accused has been convicted of such a Any felony against crime shall be admitted Crim Def if the court determines that the probative value of admitting test: this evidence outweighs its prejudicial effect to the accused; If probative value > and prejudicial effect (favors exclusion) (b) Time limit. Evidence of a conviction under this rule is not Exclude (stale) convictions admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement if 10 years since conviction imposed for that conviction, whichever is the later date, or release unless the court determines, in the interests of justice, that the probative unless probative value value of the conviction supported by specific facts and circumstances substantially outweighs the substantially outweighs its prejudicial effect. prejudicial effect. Professor John Barkai, U.H. Law School Page - 127 FEDERAL FRE 609 IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME Before “restyled” However, evidence of a conviction more than 10 years old as calculated advance written notice herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to to use these 10 year old provide the adverse party with a fair opportunity to contest the use of convictions such evidence. (c) Effect of pardon, annulment, or certificate of Not admissible rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a if pardoned and no pardon, annulment, certificate of rehabilitation, or other subsequent felony equivalent procedure based on a finding of the rehabilitation convictions of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by or death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or pardon based on other equivalent procedure based on a finding of innocence. innocence (d) Juvenile adjudications. Evidence of juvenile Not generally adjudications is generally not admissible under this rule. The admissible court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if unless admissible conviction of the offense would be admissible to attack the against adult, and credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue necessary for a fair of guilt or innocence. determination of the issue of guilt or innocence. (e) Pendency of appeal. The pendency of an appeal Still admit conviction therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is Wit can explain admissible. Amended in 2006 FOR BALANCING: Factors are not specified Do judges really apply different tests? Does it matter? Professor John Barkai, U.H. Law School Page - 128 State v. Santiago 53 Haw. 254, 492 P.2d 657 (1971) R 609 ABE, Justice. value of evidence of prior crimes outweighs its This case presents a series of troublesome issues prejudicial effects. To ensure that prior convictions are concerning the conduct of a criminal trial. In brief we considered only in weighing the defendant's credibility, are called upon to decide: and not in determining whether the defendant is guilty of I. Whether in a criminal case the defendant's the crime charged, judges give the jury a limiting credibility as a witness may be impeached by showing instruction to that effect. that he had previously been convicted of first degree burglary. A number of authorities have come to believe that ... when the witness to be impeached is also the defendant We resolve all issues in favor of the defendant and in a criminal case, the introduction of prior convictions remand the case for a new trial. on the issue of whether the defendant's testimony is credible creates a substantial danger that the jury will The defendant was convicted of first degree murder conclude from the prior convictions that the defendant is and sentenced to life imprisonment without possibility likely to have committed the crime charged. The danger of parole. of prejudice is scarcely mitigated by an instruction to ... consider the prior convictions only in determining I. whether or not the defendant's testimony is credible. To The first issue to be discussed arises from the inform the jury in a rape case that the defendant has a following series of questions propounded by the prior rape conviction and then instruct them to consider prosecutor, Mr. Yim: the conviction only in evaluating the defendant's Q BY MR. YIM: Norman, were you convicted in the credibility is to recommend 'a mental gymnastic which is past of any felonies? beyond, not only their power, but anybody else.' As the A Yes. United States Supreme Court stated in Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 Q When was this? L.Ed.2d 426 (1968), '(T)here are some contexts in A When I was 20 years old but long time ago. It was which the risk that the jury will not, or cannot, follow for burglary. instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human Q Burglary? limitations of the jury system cannot be ignored.' A Yes. Admission of prior convictions to impeach Q You remember what degree of burglary. A First credibility puts the criminal defendant who has prior degree burglary. convictions in a tremendous dilemma. He knows that the jury will learn of his prior convictions only if he MR. YIM: I have no questions, your Honor. takes the stand to testify in his own defense. He knows that the jury may use his prior convictions in its  It is the law in virtually every state that evidence determination of whether or not he is guilty. Any of prior convictions may not be admitted in order to defendant who has prior convictions will therefore feel show that the defendant has a criminal propensity and is constrained not to take the stand. likely to have committed the crime charged. It has long been recognized that every criminal At the same time, however, if the accused takes the defendant has a right to testify in his own defense. That stand to testify in his own defense, prior convictions may right is 'basic in our system of jurisprudence' and be introduced in order to impeach his credibility as a implicitly guaranteed by the Due Process Clause of the witness. Some states restrict the sorts of crimes which Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273, may be used to impeach credibility, holding that only 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); Hovey v. Elliott, felonies, or infamous crimes, or crimes involving moral 167 U.S. 409, 417-419, 17 S.Ct. 841, 42 L.Ed. 215 turpitude may be used. In a few jurisdictions, the trial (1897). While technically the defendant with prior judge determines in each case whether the probative convictions may still be free to testify, the admission of Professor John Barkai, U.H. Law School Page - 129 prior convictions to impeach credibility 'is a penalty the context of a civil case in Asato are even more imposed by courts for exercising a constitutional compelling in a criminal case where the state seeks to privilege.' Griffin v. California, 380 U.S. 609, 614, 85 impeach the credibility of the defendant as a witness. S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). That penalty Whether the suit is civil or criminal, evidence of prior 'cuts down on' the right to testify 'by making its assertion convictions is of only minimal relevance to a witness' costly.' Griffin, 380 U.S. at 614, 85 S.Ct. 1229 (holding credibility. In a criminal case there are added concerns that prosecutorial comment on a defendant's failure to because a defendant's knowledge that the jury may take the stand is an unconstitutional burden on his right conclude from the prior convictions that he is guilty may not to testify). compel him to forego his privilege to testify. Since there is no compelling reason to impose that burden, we hold Despite the burden imposed on the defendant's right that to convict a criminal defendant where prior crimes to testify, we might nevertheless sanction admission of have been introduced to impeach his credibility as a prior crimes to impeach credibility if there were some witness violates the accused's constitutional right to value outweighing the burdens imposed. It is apparent, testify in his own defense. Insofar as HRS s 621-22 and however, that prior convictions are of little real any rule of this court allow the introduction of prior assistance to the jury in its determination of whether the convictions in a criminal case to prove the defendant's defendant's testimony as a witness is credible. When the testimony is not credible, those provisions are at odds prior crime has nothing to do with dishonesty, there may with the Due Process Clauses of Haw.Const. art. I, s 4 be no logical connection whatsoever between the prior and the Fourteenth Amendment of the United States crime and the determination of whether the defendant Constitution. may be believed. Even if the crime involves dishonesty or false statements, in light of the fact that every criminal We do not today deal with the situation where the defendant may be under great pressure to lie, the slight defendant has himself introduced testimony for the sole added relevance which even a perjury conviction may purpose of establishing his credibility as a witness. carry would not seem to justify its admission. Whether in those circumstances, the prosecutor may Furthermore, since the jury is presumably qualified to introduce evidence of prior convictions is a question determine whether or not a witness is lying from his which is not before us. While we would hesitate to erect demeanor and his reaction to probing a trap under which an unwary defense lawyer's cross- examination, there would appear to be little need introduction of some trivial evidence concerning the for evidence of prior convictions even if the crime accused's credibility may unleash a flood of damaging involves false statements. prior convictions, we need not reach those matters in this case. Motivated by these considerations, in Asato v. Furtado, 52 Haw. 284, 474 P.2d 288 (1970), we held Nor do we deal with the case where the prosecutor that evidence that a defendant had been convicted of seeks to impeach the credibility of a witness who is not heedless and careless driving could not be introduced to at the same time the defendant in a criminal case. Our impeach his credibility as a witness in a civil action. We holding reaches only the situation where there is a stated that HRS s 621-22 (1968), which seemed on its danger that the jury will use the prior conviction in face to authorize use of all prior convictions to impeach determining whether a criminal defendant is guilty of the credibility, must be read in light of the basic rules of crime charged, such that the defendant's right to testify evidence. We noted that evidence of a traffic offense in his own defense is inhibited. was essentially irrelevant to the issue of whether the defendant was a credible witness. We indicated that if In light of the fact that this a criminal case in which prior convictions could be used at all to impeach basic constitutional protections having a substantial credibility, they could be used only if, like perjury and effect on the defendant's rights are in issue, the offenses 'involving dishonesty or false statement,' the prosecutor's argument that the admission of evidence of prior crime 'rationally carries probative value on the prior convictions was not plain error cannot be issue of the truth and veracity of the witness.' 52 Haw. sustained. at 293, 474 P.2d at 295. ... Reversed and remanded. Today, in the context of a criminal case, we wish to go further. We believe that the concerns enumerated in Professor John Barkai, U.H. Law School Page - 130 U.S. v. BRACKEN, 969 F.2d 827 (9th Cir.1992) R 609 “DISHONESTY” This court has convened en banc to determine purpose of attacking the credibility of a witness, whether bank robbery necessarily involves (1) evidence that a witness other than an “dishonesty,” as that term is used in Federal Rule of accused has been convicted of a crime shall be Evidence 609(a)(2). The question arises in the admitted, subject to Rule 403, if the crime was context of whether a witness can be impeached by punishable by death or imprisonment in excess evidence of prior convictions. Faced with of one year under the law under which the intra-circuit precedents which provide irreconcilably witness was convicted, and evidence that an conflicting answers to the question.... We now accused has been convicted of such a crime conclude that for purposes of Rule 609(a)(2) bank shall be admitted if the court determines that the robbery is not per se a crime of “dishonesty.” probative value of admitting this evidence outweighs its prejudicial effect to the accused; Robert Nello Brackeen robbed three different and (2) evidence that any witness has been banks, one bank a day on each of three separate days convicted of a crime shall be admitted if it in July 1990.... On the second day of the two-day trial, involved dishonesty or false statement, Brackeen indicated he would testify, and objected regardless of the punishment. Fed.R.Evid. 609 before taking the stand to the use for impeachment of his guilty pleas to the two unarmed bank robberies. Brackeen's bank robberies did not involve any The court reserved its ruling on the objection until “false statement[s],” id., and were not “actually after Brackeen testified. Brackeen was the sole committed by fraudulent or deceitful means.” ... defense witness. On cross-examination, the court Accordingly, the only issue in this case is whether allowed impeachment with the guilty pleas. bank robbery is per se a crime of “dishonesty” under Rule 609, regardless of the means by which it is The trial court's basis for admitting the prior perpetrated. Our circuit has not spoken with one guilty pleas as impeachment evidence was Federal voice on this question. Compare, e.g., Kinslow, 860 Rule of Evidence 609(a)(2), which allows F.2d at 968 (holding armed robbery is per se a crime impeachment of a defendant by any crime involving of “dishonesty” under Fed.R.Evid. 609(a)(2)), with, “dishonesty or false statement.” The court expressly e.g., Glenn, 667 F.2d at 1272-73 (holding bank refused to admit the pleas under Rule 609(a)(1), robbery is not per se a crime of “dishonesty” under which allows impeachment using any felony “if the Fed.R.Evid. 609(a)(2)). We now [say in the en banc court determines that the probative value of admitting panel that] bank robbery is not per se a crime of this evidence outweighs its prejudicial effect to the “dishonesty” under Federal Rule of Evidence accused....” The court stated: “No. I don't think 609(a)(2). under Rule 609(a)(1) that I would let it in.... I don't think I could make that analysis under Rule 609(a)(1) Unfortunately, “dishonesty” has more than one so I'm going to base my ruling on Rule 609(a)(2) that meaning. In the dictionary, and in everyday use, this is a crime involving dishonesty and the “dishonesty” has two meanings, one of which government has an absolute right to use it to impeach includes, and one of which excludes, crimes such as him.”... bank robbery. In its broader meaning, “dishonesty” is defined as a breach of trust, a “lack of ... probity or Brackeen appeals, claiming the impeachment integrity in principle,” “lack of fairness,” or a was improper because ... the guilty pleas were to “disposition to ... betray.” Webster's Third New bank robbery, a crime that does not involve International Dictionary 650 (1986 unabridged ed.). “dishonesty or false statement” as required by Rule This dictionary states, under the heading 609(a)(2).... “synonyms,” that “dishonest may apply to any breach of honesty or trust, as lying, deceiving, cheating, Rule 609 provides in part: stealing, or defrauding.” Id. Bank robbery fits within Rule 609. Impeachment by Evidence of this definition of “dishonesty” because it is a betrayal Conviction of Crime (a) General rule. For the of principles of fairness and probity, a breach of Professor John Barkai, U.H. Law School Page - 131 community trust, like stealing. Other circuits have reached similar conclusions. In its narrower meaning, however, “dishonesty” The Tenth Circuit has stated: is defined as deceitful behavior, a “disposition to Of course, robbery, burglary and theft are defraud ... [or] deceive,” id., or a “[d]isposition to lie, ordinarily considered to be dishonest, but the cheat, or defraud,” Black's Law Dictionary 421 (5th term as used in Rule 609(a)(2) is more restricted. ed. 1979). Bank robbery does not fit within this We think the legislative history of this definition of “dishonesty” because it is a crime of provision shows that Congress intended to limit violent, not deceitful, taking. Everyday usage the term to prior convictions involving some mirrors the dictionary: we use “dishonesty” narrowly element of deceit, untruthfulness, or to refer to a liar, and broadly to refer to a thief. falsification which would tend to show that an accused would be likely to testify untruthfully. Fortunately, we are not operating in a vacuum: United States v. Seamster, 568 F.2d 188, 190 (10th while nothing in the text of Rule 609 indicates Cir.1978) (emphasis added). See United States v. precisely what Congress meant when it used the term Farmer, 923 F.2d 1557, 1567 (11th Cir.1991) ( “It is “dishonesty,” we find guidance in the legislative established in this Circuit ... that crimes such as theft, history of the rule. As the Supreme Court has stated robbery, or shoplifting do not involve 'dishonesty or in another context, “[w]e begin by considering the false statement' ... Shows v. M/V Red Eagle, 695 extent to which the text of Rule 609 answers the F.2d 114, 119 (5th Cir.1983) ( “admissibility of a question before us. Concluding that the text is prior bank robbery conviction for impeachment ambiguous ... we then seek guidance from legislative purposes requires the balancing exercise of Rule history....” 609(a)(1)”); ... United States v. Cunningham, 638 F.2d 696, 698-99 (4th Cir.1981) (noting “Rule The legislative history of Rule 609 makes clear 609(a)(2) ... is confined to a narrow class of crimes,” that Congress used the term “dishonesty” in the and holding a state conviction for writing “worthless narrower sense, to mean only those crimes which checks” is not admissible under Rule 609(a)(2));... involve deceit. The House Conference Committee Report on Rule 609 states: Congress intended Rule 609(a)(2) to apply only By the phrase “dishonesty and false statement” to those crimes that factually or by definition entail the Conference means crimes such as perjury or some element of misrepresentation or deceit, and not subornation of perjury, false statement, criminal to “ 'those crimes which, bad though they are, do not fraud, embezzlement, or false pretense, or any carry with them a tinge of falsification.' ... Brackeen's other offense in the nature of crimen falsi, the conviction is reversed, and the case is remanded for commission of which involves some element of a new trial. deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully. The Senate Judiciary Committee Report contains substantially the same language.... Bank robbery is not “in the nature of crimen falsi.” Black's Law Dictionary defines “crimen falsi” as follows: “Term generally refers to crimes in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense which involves some element of deceitfulness, untruthfulness, or falsification bearing on witness' propensity to testify truthfully.” Black's Law Dictionary 335 (5th ed. 1979). Professor John Barkai, U.H. Law School Page - 132 LUCE v. UNITED STATES, 469 U.S. 38 (1984) Chief Justice BURGER delivered the opinion of the Court. Petitioner was indicted on charges of conspiracy, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 846 and 841(a)(1). During his trial in the United States District Court for the Western District of Tennessee, petitioner moved for a ruling to preclude the Government from using a 1974 state conviction to impeach him if he testified. There was no commitment by petitioner that he would testify if the motion were granted, nor did he make a proffer to the court as to what his testimony would be. In opposing the motion, the Government represented that the conviction was for a serious crime--possession of a controlled substance. The District Court ruled that the prior conviction fell within the category of permissible impeachment evidence under Federal Rule of Evidence 609(a). The District Court noted, however, that the nature and scope of petitioner's trial testimony could affect the court's specific evidentiary rulings; for example, the court was prepared to hold that the prior conviction would be excluded if petitioner limited his testimony to explaining his attempt to flee from the arresting officers. However, if petitioner took the stand and denied any prior involvement with drugs, he could then be impeached by the 1974 conviction. Petitioner did not testify, and the jury returned guilty verdicts. The United States Court of Appeals for the Sixth Circuit affirmed....The Court of Appeals held that when the defendant does not testify, the court will not review the District Court's in limine ruling. Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction. When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction. Because an accused's decision whether to testify “seldom turns on the resolution of one factor,” New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 1301, 59 L.Ed.2d 501 (1979) (BLACKMUN, J., dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it. Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to “plant” reversible error in the event of conviction. Professor John Barkai, U.H. Law School Page - 133 ...We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. Accordingly, the judgment of the Court of Appeals is affirmed. ************************ OHLER v. UNITED STATES, 529 U.S. 753 (2000) Chief Justice REHNQUIST delivered the opinion of the Court. Petitioner, Maria Ohler, was arrested and charged with importation of marijuana and possession of marijuana with the intent to distribute. The District Court granted the Government's motion in limine seeking to admit evidence of her prior felony conviction as impeachment evidence under Federal Rule of Evidence 609(a)(1). Ohler testified at trial and admitted on direct examination that she had been convicted of possession of methamphetamine in 1993. The jury convicted her of both counts, and the Court of Appeals for the Ninth Circuit affirmed. We agree with the Court of Appeals that Ohler may not challenge the in limine ruling of the District Court on appeal. ...Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted. See 1 J. Weinstein & M. Berger, Weinstein's Federal Evidence 103.14, p. 103-30 (2d ed. 2000). Cf. 1 J. Strong, McCormick on Evidence 55, p. 246 (5th ed. 1999) (“If a party who has objected to evidence of a certain fact himself produces evidence from his own witness of the same fact, he has waived his objection”)....Ohler argues that it would be unfair to apply such a waiver rule in this situation because it compels a defendant to forgo the tactical advantage of pre-emptively introducing the conviction in order to appeal the in limine ruling. She argues that if a defendant is forced to wait for evidence of the conviction to be introduced on cross-examination, the jury will believe that the defendant is less credible because she was trying to conceal the conviction. The Government disputes that the defendant is unduly disadvantaged by waiting for the prosecution to introduce the conviction on cross-examination. First, the Government argues that it is debatable whether jurors actually perceive a defendant to be more credible if she introduces a conviction herself. Brief for United States 28. Second, even if jurors do consider the defendant more credible, the Government suggests that it is an unwarranted advantage because the jury does not realize that the defendant disclosed the conviction only after failing to persuade the court to exclude it. Whatever the merits of these contentions, they tend to obscure the fact that both the Government and the defendant in a criminal trial must make choices as the trial progresses. For example, the defendant must decide whether or not to take the stand in her own behalf. If she has an innocent or mitigating explanation for evidence that might otherwise incriminate, acquittal may be more likely if she takes the stand....But once the defendant testifies, she is subject to cross-examination, including impeachment by prior convictions, and the decision to take the stand may prove damaging instead of helpful. A defendant has a further choice to make if she decides to testify, notwithstanding a prior conviction. The defendant must choose whether to introduce the conviction on direct examination Professor John Barkai, U.H. Law School Page - 134 and remove the sting or to take her chances with the prosecutor's possible elicitation of the conviction on cross-examination. The Government, too, in a case such as this, must make a choice. If the defendant testifies, it must choose whether or not to impeach her by use of her prior conviction. Here the trial judge had indicated he would allow its use, but the Government still had to consider whether its use might be deemed reversible error on appeal. This choice is often based on the Government's appraisal of the apparent effect of the defendant's testimony. If she has offered a plausible, innocent explanation of the evidence against her, it will be inclined to use the prior conviction; if not, it may decide not to risk possible reversal on appeal from its use.... Ohler's submission would deny to the Government its usual right to decide, after she testifies, whether or not to use her prior conviction against her. She seeks to short circuit that decisional process by offering the conviction herself (and thereby removing the sting) and still preserve its admission as a claim of error on appeal. But here Ohler runs into the position taken by the Court in a similar, but not identical, situation in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), that “[a]ny possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.” Id., at 41, 105 S.Ct. 460. Only when the Government exercises its option to elicit the testimony is an appellate court confronted with a case where, under the normal rules of trial, the defendant can claim the denial of a substantial right if in fact the district court's in limine ruling proved to be erroneous. In our view, there is nothing “unfair,” as Ohler puts it, about putting her to her choice in accordance with the normal rules of trial. For these reasons, we conclude that a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error. The judgment of the Court of Appeals for the Ninth Circuit is therefore affirmed. Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting. Professor John Barkai, U.H. Law School Page - 135 State v. Schnabel, --- P.3d ---- (2012) HSCt Do not follow Luce Acoba, Duffy, and Mckenna Recktenwald, dissenting, with whom Nakayama joins **** On April 22, 2007, at Zablan Beach Park in Nanakuli, Hawai`i, Petitioner (Schnabel) allegedly caused the death of Christopher Reuther (decedent), prospective U.H. law student by one punch. Respondent's witnesses testified that they met decedent at the park, began conversing with him, and eventually invited him to camp with them overnight. At some point decedent left the group, against their warning not to do so, and headed toward the restrooms. …[A]s decedent was walking to his car, Petitioner approached him from behind and hit him in the face. Immediately thereafter, decedent "spun out" in a "half-circle" or "jump[ed] around" before collapsing to the ground. Petitioner's actions were unprovoked. The defense's witness, Kristie Reverio (Reverio), testified that decedent was walking towards the parking lot and taking photographs near where she and Petitioner were standing. Petitioner confronted decedent and asked him if he was taking pictures of them. Decedent responded that he had only taken a picture of the stop sign. Reverio and Petitioner thought decedent was being "sarcastic" and asked to see his camera's viewfinder. Decedent held out the camera for them, but then pulled it back and began walking towards his car with a "smirk" on his face. Petitioner told decedent, "[Y]ou cannot be doing things like that over here, you need to leave." Decedent then approached Petitioner and stated, "[Y]ou cannot tell me what to do," while in a "fighting stance." Reverio thought Petitioner and Decedent "were going to fight." At that moment, Petitioner punched Decedent on his right cheek. Decedent then fell backward, stood back up, staggered forward, and fell down. Petitioner was charged with (1) Manslaughter and (2) Unauthorized Entry into a Motor Vehicle in the First Degree. Prior to trial, Respondent filed a Notice of Intention to Use Specified Evidence (Notice) indicating that, at trial, it would seek to introduce the following evidence relating to Petitioner's juvenile proceedings: (1) on September 1, 2002, Petitioner attended a party at Nanakuli Beach Park and as complainant attempted to "shake [Petitioner's] hand, [complainant] was suddenly punched on the left side of his face[,] causing [him] to fall to the ground where he was thereafter kicked in the face several times[,] (2) Petitioner was "present at his entire trial[,]" and (3) Dr. Jorge Camara (Dr. Camara) testified "that an orbital fracture . . . can cause not only a rupture of the bone socket[,]" but could also cause a "subdural hematoma in the brain[,]" which "could then create a `substantial risk of death.'" Respondent attached a transcript of Dr. Camara's testimony given at Petitioner's juvenile proceedings as an exhibit to its Memorandum in support of the Notice. According to Respondent, the aforementioned evidence was admissible to show that Petitioner "was on notice that similar acts in the future could cause much more serious injuries[.]" The defense filed a motion in limine to preclude Respondent from introducing Dr. Camara's testimony pursuant to Hawai`i Rules of Evidence (HRE) Rules 402 (2010) and 403 (1993). At the hearing on the motion, Respondent argued that evidence from the juvenile proceedings was relevant to Petitioner's "knowledge" that his conduct, i.e., a single punch, could cause a substantial risk of death. The defense argued that the injuries involved in the juvenile proceedings were "not the same type of injury" as the one in this case because the juvenile case involved "punches and kicks" which were "likely to be much more damaging than a punch." Defense counsel additionally noted that Dr. Camara did not testify that those acts "would cause[,]" but "could cause," bleeding in the brain. Finally, it was argued by the defense that at the time of the juvenile proceedings, Petitioner was seventeen years old and "in a traumatic situation where we Professor John Barkai, U.H. Law School Page - 136 hope he was paying attention but well may not have been." After taking the matter under advisement, the court initially ruled that Respondent could not introduce any evidence relating to Petitioner's juvenile proceedings. Subsequently, however, during further pre-trial proceedings, Respondent moved the court to reconsider its ruling. Respondent also asked the court, in the alternative, "to at least allow [Respondent] to—if [Petitioner] . . . takes the stand and is cross-examined[,] to make reference to the fact[.]” The court answered that reconsideration was "not going to happen," but considered "what [might] happen if [Petitioner] takes the stand and he says he was completely unaware, totally unaware, hit somebody in the head, that they [sic] might cause them [sic] serious injury or death." Defense counsel stated that if the court allowed Respondent to ask Petitioner whether he knew a single punch "could," as opposed to "would," cause death, Petitioner's "answer will be `no.'" Defense counsel related that even if he did respond in that manner, evidence of Dr. Camara's testimony would not be "sufficient to prove that [Petitioner] did know differently" since Dr. Camara's testimony was about "a punch and kicks" which, when "combined[,] could cause subdural hematoma [which] could cause death[.]" Defense counsel further asserted that the evidence would "mislead the jury," "distract [it] from trying this case[,]" and would "be highly prejudicial[.]" The court then expressed its concern that "most of the men on the jury — . . . — understand that a large man that punches another man could kill him." Thus, the court responded that, if Respondent laid a foundation regarding Petitioner's height and weight on the date of the incident and argued that the punch "was a sucker punch or a false crack[,] . . . and [Petitioner] says no way" a punch can cause the death of a person, its "inclination [would be] to give [Respondent] some latitude over [the defense's] strong objection[.]" **** Having determined that the court's ruling that evidence of Petitioner's juvenile proceedings could be admissible violated HRS § 571-84(h), we conclude the ruling constitutes reversible error. **** As related, defense counsel noted on the record that the court's ruling was a reason Respondent decided not to testify. In this way, the court's error infringed upon Petitioner's constitutionally and statutorily protected right to testify. Tachibana v. State, 79 Hawai`i 226, 231, 900 P.2d 1293, 1298 (1995). Error that infringes on one's constitutionally protected right cannot be said to be harmless beyond a reasonable doubt.**** The relevant question under the harmless beyond a reasonable doubt standard is "`whether there is a reasonable possibility that error might have contributed to conviction.'" … Here, the admission of Dr. Camara's testimony was highly contested at trial and the court's erroneous ruling affected Petitioner's decision not to testify. Consequently, there is a "reasonable possibility" that the court's error "might have" contributed to his conviction. The court's ruling was a factor in precluding testimony from Petitioner negating the requisite reckless state of mind. As related, Petitioner indicated that he would testify he was unaware a single punch could cause the death of a person. **** Such testimony would have been corroborated, at least to some extent, by the medical examiner's testimony that the injury that caused decedent's death was "not very common" and "unique." However, the court's announced decision to allow evidence from the juvenile proceeding impeded Petitioner's proffer of evidence regarding his state of mind. Hence, it is reasonably possible that the court's error might have contributed to Petitioner's conviction inasmuch as the error was a consideration in his decision not to testify, and, thus, was not harmless beyond a reasonable doubt. Professor John Barkai, U.H. Law School Page - 137 Such an error also affected Petitioner's claim of self-defense. **** Petitioner was the only person who could testify as to his subjective belief of the facts and circumstances surrounding his use of force. The crux of his defense would be testimony regarding his belief that force was necessary and that decedent had in fact threatened him with harm. Petitioner's defense would have been corroborated by Reverio's testimony. Again, it is reasonably possible that the court's error might have contributed to Petitioner's conviction inasmuch the court's ruling as to the juvenile proceedings was a factor in his decision not to testify. Thus, the error cannot be said to be harmless beyond a reasonable doubt.**** [T]he dissent disagrees that Petitioner's right to testify was infringed upon, emphasizing that (a) the court's ruling was subject to change, (b) Petitioner could have testified and refrained from asserting that he did not know a single punch would cause a substantial risk of death, and (c) the court's ruling was "`one of the factors'" contributing to Petitioner's decision not to testify. As to (a), the court's in limine ruling was not subject to change insofar as the court ruled that it would allow the cross-examination and later reconfirmed its ruling after the prosecution had rested its case. The court stated that it would "give latitude" to the prosecution to discuss the issue, over the defense's "objection[,]" and explained that it "would allow" on cross-examination the question whether Petitioner knew that one punch "could" cause death. After defense counsel stated that Petitioner did not testify in part because Respondent would be allowed to introduce Dr. Camara's testimony, the court acknowledged that Petitioner's statement was "accurate" and that it would "allow [the prosecutor] to get into the earlier [juvenile] situation[,]" thereby reconfirming that the court would have allowed the admission of such evidence if Petitioner testified. Thus, the ruling did not change. See U.S. v. Greer, 791 F.2d 590, 594 (7th Cir. 1986) (reviewing the error of an in limine ruling even where the defendant failed to testify because there was a complete record insofar as the legal, not factual, "determinative question" was "whether a confession elicited in violation of a defendant's [F]ifth [A]mendment rights may ever be used for impeachment purposes"). As to (b), respectfully, criticism in response to the Supreme Court's decision in Luce v. United States, 469 U.S. 38, 41-43 (1984), highlights the flaw in the dissent's reasoning. In Luce, the Supreme Court held that a defendant must testify to preserve his or her right to appeal a trial court's in limine ruling that prior convictions are admissible for impeachment purposes. … "Luce has been subjected to little but steady and unrelenting criticism[.]" … One criticism of Luce, out of many, is that it "forces upon an accused what is arguably an unfair choice; testify under circumstances where it is virtually certain the prosecutor will regale the jury with tales of prior convictions, or refrain from testifying, deprive the jury of the accused's side of the story, and lose all chance to appeal." … Since Luce, the Supreme Court has formally settled into the position that a defendant has a right to testify in his own behalf,…and "[i]n a host of other contexts, . . . has held that a constitutional right may be violated, even where the accused is not strictly forbidden from exercising that right, as long as some trial ruling undermines the right by improperly and unfairly making its exercise costly.”… Indeed, requiring the defendant to testify in order to preserve the issue for appeal is wrong, since it fails to recognize "the significance that such impeachment has on the defendant's decision concerning the testimony." States declining to adopt Luce have reasoned that the problem of meaningful review is unfounded when the record sufficiently demonstrates, through an offer of proof, the nature of the defendant's proposed testimony and that the defendant refrained from testifying when faced with impeachment by a prior conviction. Under such conditions, a reviewing court Professor John Barkai, U.H. Law School Page - 138 would have a sufficient record to conduct a harmless error analysis. …In the instant case, it would be unwise to "apply" a rule that, in effect compelled Petitioner to make an "unfair choice" of either testifying under circumstances where it was "virtually certain" the prosecutor would "regale the jury" with Dr. Camara's testimony, or remain silent and "deprive the jury" of his testimony and "lose all chance of appeal." …Of course, as noted previously, HRS § 571-84 bars the admission of evidence from a juvenile proceeding in the instant case, precluding any effort to "regale the jury" with Dr. Camara's testimony, further underscoring the inapplicability of Luce's rationale to this case. As to (c), as discussed supra, Petitioner's testimony was critical to his claim of self-defense insofar as the defense is based on the defendant's subjective belief and state of mind with respect to the facts and circumstances surrounding his or her use of force. Although the effect of the court's ruling on Petitioner's decision not to testify cannot be measured with precision, any error that infringes on a substantial right such as the right to testify may be noticed for plain error. … [Manslaughter conviction is vacated and case remanded for a new trial.] Professor John Barkai, U.H. Law School Page - 139 PRIOR CONVICTION PROBLEMS 1B Assume Albert is on trial in Federal Court (under the FREs) for illegal possession and sale of cocaine. The prosecution contends that at 3 a.m. on the morning of July 9, Albert offered to sell a small quantity of cocaine to undercover policeman Roberto Alfonso. Albert's defense is that Alfonso planted the cocaine on him. Albert has had the following brushes with the law: (a) A conviction 15 years ago for burglary. Albert received probation. (b) A second conviction 11 years ago for armed robbery of a liquor store. Albert served 3 years of a 7 year sentence. (c) A third conviction 6 years ago for sale of heroin. He was sentenced to 4 years in jail. (d) A fourth conviction 2 years ago for perjury. He served 1 year in prison. (e) Albert has also been arrest twice in the past year for cocaine possession, but those charges were dropped. (f) Albert was convicted of the misdemeanor of shoplifting one year ago and served 30 days in jail. (g) Albert was convicted of the misdemeanor of filing a false application (he lied when he applied for a Maikai Card at Foodland) and served 5 days in jail. (h) When he was 15, Albert was convicted in a Family Court proceeding (juvenile court) of stealing a car. Albert moves in advance of trial for an order prohibiting the prosecution from using any of the convictions and arrests to impeach him. Be prepared to discuss, argue as counsel, and rule as a judge, on this impeachment. Would it be better for Albert if he were going to have trial in the Hawaii Courts under the Hawaii Rules of Evidence? What, if any difference would there be in the opportunities for impeachment by the government? Would there be any differences in the impeachment if the arrests and convictions were not of Albert, but of Wally Witness, Albert's good friend who was with him the night he was arrested? Wally is prepared to testify that the police officer did not find any drugs on Albert (they were planted!). 2A Billy Boy wants to impeach the testimony of Sam Smith at trial with Sam's prior conviction three years ago for vehicular homicide, a crime punishable by imprisonment in excess of one year. Discuss the admissibility of the prior conviction to impeach in both Hawaii and Federal Courts. Professor John Barkai, U.H. Law School Page - 140 IMPEACHMENT CHART PROBLEMS- RULES 609 What can you say about Impeachment by Prior Conviction under the two 609 Rules Who / under what Hawaii Federal conditions? Everyone Everyone EXCEPT criminal DEFENDANT CRIM DEFENDANT Time Pardoned Crim Def Juvenile Crim Witness Appeal Pending ARE THE FOLLOWING CONVICTIONS ADMISSIBLE TO IMPEACH? UNDER WHAT CONDITIONS? HAWAII RULES FEDERAL RULES Charge Witness Defendant Witness Defendant Murder Felony Perjury Misdemeanor Theft, HRS 708-830(2) Felony Theft, HRS 708-830(1) HRS 708-830 Theft. A person commits theft if he does any of the following: (1) Obtains or exerts unauthorized control over property. He obtains, or exerts control over, the property of another with intent to deprive him of the property. (2) Property obtained or control exerted through deception. He obtains, or exerts control over, the property of another by deception with intent to deprive him of the property. Professor John Barkai, U.H. Law School Page - 141 HAWAII - HRE RULE 608 EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of FORM: opinion or reputation only opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for TRAIT: untruthfulness truthfulness or untruthfulness, and (2) evidence of truthful character is admissible PROCEDURE: truthfulness only only after the character of the witness for after attack by truthfulness has been attacked by opinion or opinion/reputation/otherwise reputation evidence or otherwise. NO BOLSTERING (b) Specific instances of conduct. Specific Intrinsic cross on prior bad acts of instances of the conduct of a witness, for the untruthfulness (nothing new here, purpose of attacking the witness' credibility, if except seems to be a right - not probative of untruthfulness, may be inquired into discretionary) on cross-examination of the witness and, in the discretion of the court, may be proved by EXTRINSIC IMPEACHMENT of extrinsic evidence. FACT witness allowed in judge's DISCRETION When a witness testifies to the character of Only intrinsic cross of CHARACTER another witness under subsection (a), relevant witness about prior bad acts (of specific instances of the other witness' conduct untruthfulness) of the FACT witness may be inquired into on cross-examination but may No extrinsic impeachment of not be proved by extrinsic evidence. CHARACTER witness. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility. Professor John Barkai, U.H. Law School Page - 142 FEDERAL FRE 608 EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS Before “restyled” (a) is the same for HRE & FRE (a) Opinion and reputation evidence of character. Form: opinion or reputation only The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for Trait: untruthfulness truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after PROCEDURE: truthfulness only after the character of the witness for truthfulness has been attack by opinion/reputation/otherwise attacked by opinion or reputation evidence or otherwise. NO BOLSTERING (b) is VERY different for HRE & FRE (b) Specific instances of conduct. Specific instances NO EXTRINSIC E of prior bad acts of of the conduct of a witness, for the purpose of attacking or untruthfulness supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not - except 609 convictions be proved by extrinsic evidence. you are stuck with the answer They may, however, in the discretion of the court, if INTRINSIC allowed probative of truthfulness or untruthfulness, be inquired in judges' discretion into on cross- examination of the witness (1) concerning the witness' character for truthfulness or intrinsic cross of FACT WITNESS' prior untruthfulness, or bad acts of untruthfulness (2) concerning the character for truthfulness or intrinsic cross of CHARACTER WIT untruthfulness of another witness as to which character about prior bad acts of untruthfulness of the the witness being cross-examined has testified. FACT WIT The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to character for truthfulness. Professor John Barkai, U.H. Law School Page - 143 STATE v. TORRES, 85 Hawai'i 417, 945 P.2d 849 (1997) WATANABE, Judge. [ICA Opinion] untruthfulness. Second, the evidence of truthful Defendant-Appellant Rodney Edward Torres character is admissible only after the character of the (Defendant) [was convicted] of committing the offense witness for truthfulness has been attacked “by opinion or of sexual assault in the first degree against his niece... reputation evidence or otherwise.” 28 C. Wright & V. Defendant asserts that: ... (3) the circuit court Gold, Federal Practice and Procedure: Evidence ss plainly erred when it allowed Complainant's teacher to 6115 to 6116, at 64-66 (1993). provide opinion testimony regarding Complainant's a. What constitutes character evidence for veracity when Complainant's credibility had not been truthfulness. attacked;... Because the HRE does not define the term We affirm. “character” or set forth any guidelines for determining what constitutes character evidence for truthfulness In November 1989, Defendant's wife's sister within the meaning of HRE Rule 608, it is often difficult (Mother), her husband and her four children, including to determine when evidence concerning witness Complainant, went to live with Defendant's family for a credibility falls within the scope of HRE Rule 608. while. ... Complainant...was nine years old when her Traditionally, “character” has been defined family first moved in with Defendant's family... synonymously with “disposition.” For example, ... Professor McCormick defines “character” as “a After other witnesses testified for the State, one of generalized description of a person's disposition, or of Complainant's sixth through eighth grade teachers the disposition in respect to a general trait, such as (Teacher) was called as the final State's witness. honesty, temperance or peacefulness.” 1 McCormick Teacher testified that Complainant “was a good student, on Evidence s 195, at 825 (4th ed. 1992). about a B average,” never had abnormal problems with  As Professors Wright and Gold point out, her memory, and however, the traditional definition of “character” [was] a very honest student. She was always provides little help in distinguishing character evidence honest and straightforward with me, which is kind from other forms of evidence related to a person's of unusual for teenagers. At times, a lot of times credibility because even if a witness is disposed to act a when they don't have their homework or reports certain way, evidence of such disposition may not pose done we hear all kinds of creative excuses. With the problems which prompted the adoption of Rule 608 [Complainant] she would always be up front with in the first place. 28 Federal Practice and Procedure s me. On the occasions when she did not complete 6113, at 42. According to the professors, character something she would never in those three years evidence should be defined “in terms of the presence of that I had her would she lie about it or try and make these problems” so that “the scope of Rule 608 can be up an excuse as to why she didn't do her homework. given discernible boundaries that are logically She would just come out and tell me, you know, connected to the policies underlying that rule.” Id. at 42 I did not do it, [Teacher]. I would say she was (footnote added). After analyzing the types of evidence quite honest. that may impeach a person's credibility in light of the ... policy underpinnings of Rule 608, Professors Wright C. Admissibility of Teacher's Opinion Testimony to and Gold developed the following definition for Bolster Complainant's “ witness character evidence,” which we hereby adopt as Credibility. a framework for analyzing admissibility questions under 1. HRE Rule 608(a). HRE Rule 608 (HRE Rule 608 analytical framework): ... Pursuant to the express language of HRE Rule 608(a) and the Commentary to HRE Rule 608(a), the FN3. According to Professors Wright and Gold: admissibility of character evidence under the rule is [T]hree important policies underlying the Evidence subject to two limitations. First, the evidence offered Rules can come into conflict when evidence of witness may refer only to a witness's character for truthfulness or character is offered. Those policies are (1) promoting Professor John Barkai, U.H. Law School Page - 144 accurate factfinding, (2) protecting witnesses from the witness usually is not character evidence. harassment, and (3) eliminating unjustifiable expense Inconsistencies or contradictions usually suggest only and delay.... that the witness lied or was mistaken with respect to the specific facts described. The evidence usually implies ..................... no encompassing generalization about the credibility of Thus, applying Rule 608 requires sensitivity to the the witness. Finally, evidence that a witness lacks fact that in some ways the admission of witness certain knowledge or has acted in an unprofessional character evidence can promote accurate factfinding manner undermines his capacity to testify as an expert, while in other ways admission can retard that policy goal. but does not reflect on his general truthfulness. In interpreting the provisions of the rule and exercising Id. at 43-44. the discretion granted by it, the courts should consider b. What constitutes a sufficient attack on a whether admission of the evidence will represent a net witness's character for truthfulness under HRE Rule gain or loss for the goal of accurate factfinding.... 608(a). The second limitation on the admissibility of ..................... evidence under HRE Rule 608(a) is that evidence of When the policy of promoting accurate factfinding truthful character is admissible “only after the character conflicts with the policy of protecting witness of the witness for truthfulness has been attacked by sensibilities, a balancing of these policies becomes opinion or reputation evidence or otherwise.” HRE necessary.... Rule 608(a)(2). This limitation is a product of balancing two ..................... policies underlying Rule 608; the promotion of accurate Of course, the presentation of any witness factfinding and the elimination of unjustifiable expense character evidence consumes time. Thus, whenever and delay. The drafters concluded that, in the absence of that evidence can contribute to the jury's knowledge an attack on character for truthfulness, evidence of about the credibility of a witness, the law again must truthful character is of insufficient probative value to engage in a balancing of competing policy goals. In this warrant the time necessary to consider it. This balance instance, the goal of accurate factfinding competes reflects the belief that, in the absence of evidence to the against the goal of conserving time and expense. 28 C. contrary, every witness is inclined toward truthfulness. Wright & V. Gold, Federal Practice and Procedure: Given this assumption, evidence showing the existence Evidence s 6112, at 32-39 (1993). [W]itness character of such an inclination is superfluous unless character has evidence may be defined as evidence that directly relates been attacked. to the general credibility of the witness, rather than the 28 Federal Practice and Procedure s 6116, at 66. believability of specific testimony, and conveys some There are certain categories of impeaching judgment about the ethics or moral qualities of that evidence, none of which are present in this case, which witness. clearly constitute attacks on a witness's character for Id. at 43 (brackets added). We agree with the truthfulness. For example, HRE Rule 608(a) professors that [t]his definition facilitates drawing specifically provides that reputation or opinion evidence distinctions between witness character evidence and of a witness's untruthful character qualifies as an attack other evidence pertaining to witness credibility. For on a witness's character for truthfulness, thus lifting the example, evidence showing that the witness suffers from bolstering ban. The Commentary to HRE Rule 608(a) a mental disease that makes it impossible to distinguish also recognizes that “evidence of misconduct, including fact from fantasy usually is not character evidence since conviction of crime, and of corruption” constitutes an usually it does not make an ethical or moral judgment attack on a witness's character for truthfulness. about the witness. Similarly, bias evidence indicating In other cases, such as this one, the category of the witness has an interest in the outcome of the instant impeaching evidence employed to attack a witness's case usually should not be classified as character credibility is not determinative of whether the witness's evidence because it usually says nothing general about character for truthfulness has been attacked. In such credibility. For the same reason, evidence of a prior instances, an evaluation must be made under the HRE inconsistent statement or other evidence contradicting Rule 608 analytical framework discussed above to Professor John Barkai, U.H. Law School Page - 145 determine whether the impeaching evidence (1) relates character for truthfulness. Further, contradiction directly to the general credibility of the witness rather evidence might be offered to prove the witness has than the believability of the specific testimony of the intentionally lied, but for reasons that are case-specific witness, and (2) conveys some judgment about the and have nothing to do with general trustworthiness. ethics or moral qualities of the witness. 28 Federal Finally, contradiction evidence may be offered not to Practice and Procedure s 6116, at 68, 73. prove credibility but simply to show that the facts are as 2. Whether Complainant's character for described by that evidence. truthfulness was sufficiently attacked in this case. 28 Federal Practice and Procedure s 6116, at 70 Defendant asserts that Complainant's character for (footnotes omitted). truthfulness was not sufficiently attacked and therefore, In determining whether a witness's general the circuit court plainly erred when it allowed Teacher to reputation for truthfulness has been impeached by the give his opinion testimony that Complainant was honest introduction of the witness's prior inconsistent and straightforward. The State maintains, on the other statements, therefore, a trial court must consider whether hand, that Complainant's character for truthfulness was the “particular impeachment for inconsistency or a attacked because: (1) Complainant was impeached at conflict in testimony, or either of them, amounts in net trial by an inconsistent statement that she had made effect to an attack on character for truth[.]” 1 before the grand jury; (2) defense counsel vigorously McCormick on Evidence s 47, at 176. cross-examined Complainant about Complainant's In the instant case, the inconsistencies between testimony that she “never told lies” and suggested, in the Complainant's grand jury and trial testimonies related to process, that Complainant told lies; and (3) defense whether Defendant had bathed Complainant's entire counsel vigorously cross-examined Complainant about body or just her “private parts.” As a result of defense her lapses in memory. counsel's questioning, Complainant admitted that she had not testified truthfully before the grand jury. Applying the HRE Rule 608 analytical framework Because defense counsel implied, by his questioning, discussed above, we conclude that Complainant's that Complainant had engaged in perjurious misconduct character for truthfulness was not attacked when defense before the grand jury, we conclude that Complainant's counsel questioned her about various details of her general character for truthfulness was sufficiently personal life. However, Complainant's character for attacked. truthfulness was attacked when defense counsel b. Complainant's statement that she never lied. vigorously cross-examined Complainant about her prior  After defense counsel asked Complainant inconsistent statements to the grand jury and whether whether she ever told a lie, Complainant responded that she had ever lied before. she never lied. Defense counsel then questioned a. Prior inconsistent statements. Complainant repeatedly about her foregoing statement.  The Advisory Committee's Note to FRE Rule The State contends that because most adults expect 608 states that “[w]hether evidence in the form of children to tell lies occasionally, defense counsel's contradiction is an attack upon the character of the vigorous cross-examination of Complainant was an witness must depend on the circumstances.” The attack of Complainant's character for truthfulness that reason for this is that in many circumstances, a witness's also allowed the State to introduce bolstering character “misstatements may be due to defects in memory or evidence. knowledge, or attributable to bias, rather than indicative We agree. Defense counsel specifically called of untruthfulness.” 4 J. Weinstein & M. Berger, into question Complainant's character for truthfulness Weinstein's Federal Evidence s 608.34, at 608-71 (2d when he directly asked Complainant whether she had ed. 1997). See also 1 McCormick on Evidence s 47, at ever told a lie and queried her as to her past conduct with 175 (4th ed. 1992). As Professors Wright and Gold regard to telling lies. This line of questioning clearly explain: [E]vidence that contradicts a witness can be constituted an attack on Complainant's general character offered to prove his lack of credibility by showing the for truthfulness and opened the door for bolstering witness has flawed perceptual, recall, or narrative evidence. abilities. Because such evidence suggests the witness Indeed, in closing arguments, defense counsel has committed only an honest mistake, it does not attack argued that Complainant was telling untruths. Defense Professor John Barkai, U.H. Law School Page - 146 counsel specifically called into question Complainant's capability of telling the truth, based on her answers to his questions about whether she had ever told a lie: Is she capable of telling the truth? You must determine this from the outset. You must determine this on your own, but I remember from the outset during my questioning of her to see if she was competent to testify, she told me she never lied. She never told fibs. She never did this in her whole life. This may very well be, it's for you to decide. c. Complainant's defective memory.  The State contends that defense counsel's questioning about many details of Complainant's life impugned Complainant's character for truthfulness. Upon a review of the record, we note that much of defense counsel's questioning of Complainant was aimed at testing Complainant's memory and recall, not only of the events leading up to Defendant's prosecution, but also her recollection of major events in her life, where she lived or went to school at a particular time, where her mother worked, etc. Generally, evidence that a witness has flawed perceptual, recall, or narrative abilities suggests that the witness has made an honest mistake or has a poor memory and is not an attack on the witness's general character for truthfulness. 28 Federal Practice and Procedure s 6116, at 70. Therefore, we disagree with the State's contention. ... we affirm. Professor John Barkai, U.H. Law School Page - 147 STATE v. ESTRADA 69 Haw. 204, 738 P.2d 812 (1987) HRE 403, 404, 609.1 608(b) Defendant James H.J. Estrada appeals his Officer Taguma was shot with his own gun, and attempted murder conviction and life sentence Estrada fled. Later that day, Estrada surrendered. without the possibility of parole for the shooting Officer Taguma was treated for severe of Maui County Police Officer Keith Taguma. abdominal injuries at Queen's Medical Center Estrada had claimed shooting Officer Taguma in hospital (hereinafter “Queen's Hospital”). self-defense accidentally after the latter had Officer Taguma later testified he had stopped become violent. Circuit Judge Boyd P. Estrada's car because of erratic driving and Mossman presided over the jury trial. Estrada claimed he was legitimately investigating raises as reversible errors 1) the denial of trial possible drunk driving. After discovering that continuances to investigate relevant reports of Estrada had no driver's license and possessed Officer Taguma's prior violent acts and abuse of indicia of alcohol consumption, Officer Taguma police powers; 2) the rulings restricting ordered Estrada and Gamit out of the car, discovery of Officer Taguma's past bad acts, reached into the car to retrieve an open beer can, employment history, plus medical records; 3) then found a pouch containing ammunition. the rulings barring the admission of evidence Without warning, Estrada began striking Officer that Officer Taguma had misused his police Taguma and yelling that the latter had no right to powers, physically abused his then-girlfriend, search the car. Officer Taguma retreated back to and lied on his employment application forms the police van, Estrada pursued to continue the for the Maui Police Department (hereinafter attack, a struggle ensued over Officer Taguma's “MPD”); 4) the jury's receipt of prejudicial gun, and Estrada shot Officer Taguma. evidence relating to his (Estrada's) unrelated Estrada, however, denied any bad driving or burglary arrest; ... For the following reasons, we drinking that night. He further testified that vacate the sentence, reverse the guilty Officer Taguma had never requested a driver's conviction, and remand the case for a new trial. license but had found a beer can in the car. After I. Estrada questioned the warrantless search, A. Officer Taguma became enraged, said “I can do FACTS RELATING TO THE SHOOTING. what I want because I am a policeman[,]” The preliminary facts are not disputed. Transcript, January 27, 1986 at 110, assaulted Officer Taguma was a receiving desk officer Estrada (who did not resist), stepped back, and working the night shift at the Wailuku, Maui pulled out the gun to aim at Estrada. Fearful of police station. In the early morning hours of being shot, Estrada rushed at Officer Taguma to June 29, 1985, he was assigned to get breakfast prevent any shooting, both men scuffled, and the for some other police officers from the Kahului gun fired. Burger King restaurant. Officer Taguma was in B. uniform and drove a marked police van. While FACTS RELATING TO THE TRIAL returning from the Burger King, Officer Taguma PROCEEDINGS. stopped the car driven by Estrada. Bayani On July 5, 1985, Estrada was indicted for Gamit (hereinafter “Gamit”) was Estrada's attempted murder. Beginning on July 12, 1985, passenger. Both vehicles parked in the defense counsel David Bettencourt (hereinafter Kentucky Fried Chicken restaurant parking lot. “Bettencourt”) sought disclosure of 1) all of Officer Taguma and Estrada got into a fight, Officer Taguma's personnel records and Professor John Barkai, U.H. Law School Page - 148 complaints against him while a Honolulu Police existed. Department (hereinafter “HPD”) officer and a Maui airport security guard; 2) all of Officer FN3. On June 29, 1985, the day of the Taguma's medical records; and 3) any favorable shooting, Junette was supposed to marry evidence as defined by Hawaii Rules of Penal Stephen. Upon hearing of the shooting, Junette's Procedure (hereinafter “HRPP”) Rule 16(b). first thoughts were that Officer Taguma, still After initially opposing the discovery request as upset over their break-up, may have provoked too broad and seeking confidential or irrelevant Estrada. Record Volume II at 395. evidence, Plaintiff-Appellee State of Hawaii (hereinafter “State”) reluctantly provided On January 9, 1986, prior to allowing Junette discovery. to take the stand during trial, Judge Mossman conducted an in limine hearing to determine the On January 6, 1986, just before the start of relevancy of her testimony. At this time, she jury voir dire, Bettencourt orally moved to revealed the existence of another report against continue the trial because of State's tardy Officer Taguma prepared by the Maui disclosure of a police report, involving Officer Prosecutor's Office Victim-Witness Counselor Taguma's ex-girlfriend Junette L. (hereinafter Dr. Brian Ogawa (hereinafter “the Ogawa “Junette”), had prejudiced the defense. She had Report”) on September 16, 1985. State had not been romantically involved with Officer disclosed the Ogawa Report. Junette Taguma from 1979 to 1984 (including living subsequently recanted or qualified most of her with him intermittently between 1982 and 1984) earlier accusations, but Bettencourt again orally but had broken up with him because of alleged moved for a continuance citing the necessity to physical abuse. On April 3, 1985, she had filed have time to review and investigate the Ogawa a complaint against Officer Taguma for Report. Judge Mossman denied the continuance harassing her and her then-fiance (now husband) motion, held both the Anakalea and Ogawa Stephen H. (hereinafter “Stephen”). [FN3] Reports inadmissible, and barred Junette from Specifically, she had charged that Officer testifying at trial. Judge Mossman ruled that Taguma 1) had beaten her several times prior to Junette's charges had been exaggerated, were and during August 1983; and 2) would often use not relevant, or alternatively, even if they were his police authority to pull over Stephen's car. relevant, their probative value would be Her allegations were listed in a report prepared substantially outweighed by the dangers of by MPD Officer Ramsey Anakalea (hereinafter unfair prejudice, confusion of the issues, or “the Anakalea Report”) on August 28, 1985. waste of time. Although the Anakalea Report had been given Bettencourt also sought discovery of a to Bettencourt on December 22, 1985, he confidential HPD Internal Affairs Division complained State's dilatory tactics had made it (hereinafter “IAD”) file on Officer Taguma and impossible to prepare the defense. Bettencourt testing materials used by psychologist Dr. also argued that, although Junette had been Harold Hall (hereinafter “Dr. Hall”) to evaluate initially willing to talk with him, she had later Officer Taguma and Estrada. The IAD file refused to testify, unless subpoenaed, after State allegedly contained information that Officer had contacted her (the record reflects only that Taguma had been forced to resign from HPD for State had contacted her, not what was said). misconduct and violation of regulations. Judge Mossman denied the continuance request Bettencourt also asserted that the IAD file would ruling adequate time to prepare the defense had show that Officer Taguma had lied on applying Professor John Barkai, U.H. Law School Page - 149 for employment with MPD by not revealing the bar hostess Maryanne M. (hereinafter true reasons for leaving HPD (Officer Taguma “Maryanne”) from taking the stand. She would had written about wanting to move to Maui as have testified that Officer Taguma, while a Maui the reason for resigning from HPD). After an in County liquor control inspector, had sexually camera review, Judge Mossman ruled the IAD harassed her, grabbed her breasts, and file plus Dr. Hall's materials were irrelevant and threatened to use his official powers to have her sealed them. Neither the defense nor State knew fired unless she had sexual relations with him. the contents of either item. Judge Mossman ruled such evidence irrelevant Officer Taguma then testified. During to Estrada's self-defense claims. Judge Officer Taguma's cross-examination, Judge Mossman finally barred the testimony of Mossman prohibited inquiry into whether psychiatrist Dr. Ned Murphy (hereinafter “Dr. Officer Taguma would file a civil lawsuit Murphy”) of Queen's Hospital. Dr. Murphy against Estrada after the outcome of the criminal would have testified that Officer Taguma's bad trial. Bettencourt, though, made Officer behavior during recovery could not be explained Taguma admit contacting a civil attorney (after by post-traumatic stress disorder (hereinafter the guilty verdict issued, Officer Taguma did file “PTSD”) but was due to preexisting character suit). Various other prosecution witnesses problems. Judge Mossman held this conclusion testified about Officer Taguma's injuries and the inadmissible because Dr. Murphy could not evidence indicating guilt. state with reasonable medical certainty that Estrada first testified for the defense. Among Officer Taguma had any propensity for violence the more significant defense witnesses, James or aggression. Glasgow (hereinafter “Glasgow”), who was in On rebuttal, Dr. Hall testified that Officer custody on June 1, 1985 for drunken driving Taguma's unruly actions at Queen's Hospital offenses, stated Officer Taguma had brutally were caused by normal PTSD and not by any assaulted him. Verna Inouye (hereinafter behavior problem. Other rebuttal witnesses also “Inouye”) said Officer Taguma, while a Kahului, refuted the defense witnesses' testimony. The Maui airport security guard, had screamed at jury then retired for deliberations on February 4, and threatened her for a minor parking violation 1986. in November 1984. Physician Dr. Peter Halford During deliberations, the jury asked for the (hereinafter “Dr. Halford”), who had treated self-defense instructions and Officer Taguma's Officer Taguma at Queen's Hospital, observed plus Dr. Halford's testimony on Officer Officer Taguma was habitually angry, verbally Taguma's behavior at Queen's Hospital prior to abusive, and had mental problems. Gamit release. As per his usual custom, Judge refused to testify. Mossman thereupon entered the jury room with Judge Mossman, however, excluded the a court reporter (to transcribe the proceedings) testimony of Officer Taguma's former and a bailiff. Judge Mossman then read some, employers, Thomas Higa (hereinafter “Higa”) of but not all, of the self-defense instructions, gave Longs Drugs store and Francis Kamakawiwaole the jury a complete written set of all the jury (hereinafter “Kamakawiwaole”), security chief instructions, and reread Officer Taguma's of the Sheraton- Maui Hotel. Both testimony, but not Dr. Halford's testimony. ex-employers would have stated that Officer Judge Mossman entered the jury room three Taguma had “an attitude problem” while separate times. Kamakawiwaole added that Officer Taguma ... was a “pit bull.” Judge Mossman also prevented II. Professor John Barkai, U.H. Law School Page - 150 QUESTIONS PRESENTED v. City and County of Honolulu, 69 Haw. ---, Because of the many issues presented by this 731 P.2d 149 (1986) (instances of police appeal, we will address them in the following officers' wrongdoing are admissible to establish order: the original aggressor). HRE Rule 404 1. Whether Judge Mossman abused his provides ... Judge Mossman therefore erred in discretion by denying the trial continuances to declaring that Junette's charges in the Reports investigate the Anakalea and Ogawa Reports? were not relevant. See State v. Burkhart, 5 YES. Haw.App. 26, 675 P.2d 811 (1984). 2. Whether Judge Mossman abused his ... discretion by denying discovery of A) the IAD  The IAD file describes two incidents. file on Officer Taguma; and B) Dr. Hall's testing The first occurred while Officer Taguma was an materials? YES as to the former, NO as to the HPD recruit (before he formally joined HPD). latter. Officer Taguma allegedly made obscene phone 3. Whether Judge Mossman abused his calls to a female acquaintance. Her boyfriend discretion by excluding evidence regarding and another male friend attacked Officer Officer Taguma's A) prior bad acts; B) Taguma. During the fight, Officer Taguma falsification of his MPD employment either claimed he was a police officer or had application forms; and C) contemplated civil police officer friends. No charges resulted from suit (i.e., bias) against Estrada? YES as to all this supposed occurrence. The second, however, three. is far more serious. Officer Taguma was 4. Whether the introduction to the jury of accused of initiating sexual relations with a Estrada's unrelated burglary arrest constituted prostitute he had arrested in return for promising reversible error? YES. to testify favorably at her trial. The prostitute ... notified IAD which conducted an investigation. III. Officer Taguma denied having sexual relations DENIAL OF CONTINUANCES. but admitted 1) not reporting she had tried to ... bribe him after her arrest; and 2) improperly  Judge Mossman had the discretion to meeting with her. Based on the IAD report, deny the continuances, State v. Altergott, 57 Officer Taguma was allowed to resign instead of Haw. 492, 559 P.2d 728 (1977), and to exclude being fired for the serious HPD rule violations irrelevant or wasteful, time-consuming (the police officer union, the State of Hawaii testimony. State v. Matias, 57 Haw. 96, 550 Organization of Police Officers, had negotiated P.2d 900 (1976). Even relevant “evidence may this settlement). be excluded if its probative value is substantially The IAD file contents, if true, display a outweighed by the danger of unfair prejudice, pattern of misconduct, lying, and abuse of police confusion of the issues, or misleading the jury, authority predating Officer Taguma's official or by considerations of undue delay, waste of entry into HPD. Though evidence of prior bad time, or needless presentation of cumulative acts is not ordinarily admissible to prove the evidence.” Hawaii Rules of Evidence character of Officer Taguma “to show that he (hereinafter “HRE”) Rule 403. acted in conformity therewith [,]” such evidence  Officer Taguma's prior bad acts which is admissible under HRE Rule 404(b) when it is indicate a propensity for violence, aggression, or relevant and probative of any fact that is of abuse of police powers, however, were highly consequence to the merits of the present case. relevant to Estrada's self-defense claims. Meyer State v. Prince, 67 Haw. 231, 683 P.2d 1217 Professor John Barkai, U.H. Law School Page - 151 (1984). The relevant fact here is the controversy is relevant by showing Officer Taguma, as a over who was the original aggressor under HRE Maui County liquor control officer, was Rule 404(a)(2). See Feliciano v. City and physically aggressive, sexually harassed her, County of Honolulu, 62 Haw. 88, 611 P.2d 989 assaulted her, and abused the powers of his (1980). office for personal gain. See State v. Lui, 61 We accordingly direct that, on remand, the Haw. 328, 603 P.2d 151 (1979). Accordingly, presiding trial judge shall disclose the entire her testimony should have been admitted as contents of the IAD file to both sides who shall consistent with Glasgow's and Inouye's accounts then have an opportunity to review the evidence of Officer Taguma's misconduct. See State v. and argue which portions should be admitted Basque, 66 Haw. 510, 666 P.2d 599 (1983). and which other portions should be excluded. B. The trial court shall then exercise its discretion OFFICER TAGUMA'S FALSIFICATIONS. in accordance with HRE Rule 403. See State v.  Estrada contends that Officer Taguma's Iaukea, 56 Haw. 343, 537 P.2d 724 (1975). failure to reveal the true nature of his forced ... resignation from HPD on his application for V. employment with MPD adversely affects A. credibility so should have been revealed to the OFFICER TAGUMA'S PRIOR BAD ACTS. jury. Estrada also raises Officer Taguma's Estrada asserts that the Anakalea and Ogawa concealment of the true reasons why Junette left Reports as well as the testimony of Junette, Higa, him. State replies that Officer Taguma Kamakawiwaole, plus Maryanne were highly committed no lies under oath but merely relevant so should not have been excluded. characterized his 1) leaving HPD as a desire to State counters that the proffered evidence was 1) move to Maui and resume his police career; and irrelevant; or 2) cumulative since defense 2) break-up with Junette as a decision to have his witnesses Glasgow, Inouye, and Dr. Halford had police career assume top priority in his life. already testified as to Officer Taguma's violent We conclude that Officer Taguma's alleged and abusive nature. falsifications were relevant towards a ... determination of his credibility. The jury should We have already ruled that Junette's possess all relevant evidence that Officer testimony plus the Anakalea and Ogawa Reports Taguma may have lied to obtain and keep his are relevant so should have been admitted. The current job. Cf. Bagley v. Lumpkin, 798 F.2d jury, as sole judge of witness credibility and the 1297 (9th Cir.1986). It is for the jury to decide weight of the evidence, must determine the how much weight to give to the falsifications. veracity of Junette's allegations as they relate to See State v. Bogdanoff, 59 Haw. 603, 585 P.2d Estrada's self-defense claims. State v. Riveira, 602 (1978). The apparent falsification should 59 Haw. 148, 577 P.2d 793 (1978). have been admitted under the guidelines  Higa's and Kamakawiwaole's testimony, established in HRE Rule 608(b). though, were not relevant. Officer Taguma's C. supposed “attitude problem,” without any OFFICER TAGUMA'S BIAS specific instances of violence, aggression, or AGAINST ESTRADA. abuse of official powers, did not relate to Estrada argues that Officer Taguma's bias in Estrada's self-defense claims. See HRE Rule the outcome of the case (using a guilty verdict to 404(b). file a civil negligence action) should have been  Maryanne's testimony, however, clearly revealed. State responds any error in excluding Professor John Barkai, U.H. Law School Page - 152 Officer Taguma's bias was harmless since the exemplar was mistakenly submitted to the Bettencourt elicited Officer Taguma's admission jury, and no prejudice was intended. that a civil attorney was working on a Estrada's fingerprint exemplar was part of contemplated lawsuit against Estrada. State's Exhibit 78 (hereinafter “Exhibit 78”)  Bias, interest, or motive is titled “Latent Fingerprints of Keith Taguma.” always relevant under HRE Rule 609.1. So long What apparently happened is that State's Exhibit as a proper foundation is laid, bias can be raised 78 was submitted to the jury with neither party at any time by the witness's testimony or other realizing that Estrada's exemplar was also evidence. State v. Murphy, 59 Haw. 1, 575 P.2d included. Both State and Bettencourt are at fault 448 (1978). A criminal conviction can be used for not checking Exhibit 78 thoroughly and as evidence in a civil suit, and it is error not to thereby avoiding this problem. But only if this allow cross-examination to reveal possible bias. court concludes beyond a reasonable doubt that State v. Liuafi, 1 Haw.App. 625, 623 P.2d 1271 the evidence had not contributed to the guilty (1981). verdict will the conviction be upheld. State v.  The error in this case was harmless Kahinu, 53 Haw. 536, 498 P.2d 635 (1972), cert. because the bias was brought out. As a practical denied, 409 U.S. 1126, 93 S.Ct. 944, 35 L.Ed.2d matter, moreover, Officer Taguma's bias against 258 (1973). the man who shot him is obvious. State v.  Because Estrada's substantial due Gonsalves, 5 Haw.App. 659, 706 P.2d 1333 process rights to a fair trial are implicated, we (1985). Needless to say, on remand, however, will notice plain error under HRPP Rule 52(b), evidence of Officer Taguma's bias should be notwithstanding Bettencourt's failure to timely admitted if offered. [FN7] object and bring this issue to Judge Mossman's attention. State v. Marsh, 68 Haw. ---, 728 P.2d FN7. Officer Taguma has filed a civil action 1301 (1986). in the Second Circuit entitled Taguma v. Estrada,  Unquestionably, Estrada's Civil No. 86-0389. Bettencourt notes that fingerprint exemplar was inadmissible evidence Officer Taguma's complaint avers that Estrada of an unrelated crime under HRE rule 404(b). negligently fired the gun. This charge is State v. Pokini, 57 Haw. 17, 548 P.2d 1397 inconsistent with the present case involving an (1976). Exhibit 78 also contained, moreover, allegation of intentional conduct (i.e. attempted fingerprint exemplars of Gamit (for “Alien murder). Possession of a Firearm”) and a Romula Estrada (for “Hindering Prosecution”). The jury knew Gamit was VI. with Estrada during the shooting and could have easily inferred that Romulo Estrada was a relative. Not only EVIDENCE OF ESTRADA'S BURGLARY was the jury aware of Estrada's criminal record but ARREST. might have also been prejudiced by the assumption that Estrada argues that State violated his due he associated with other criminals. State v. Medeiros, 1 process and fair trial rights by essentially Haw.App. 536, 621 P.2d 986 (1981). sneaking in evidence of an unrelated burglary  The evidence in this case was close as shown by which the jury did not know he was acquitted of. the large amounts of evidence presented by both sides State counters that Bettencourt had used and the long, three-day deliberation the jury required to Estrada's fingerprint exemplar (to reach its verdict. The jury could easily have been cross-examine a prosecution witness), knew it prejudiced into convicting Estrada based on his and his associates' fingerprint exemplars. State v. Huihui, 62 was an exhibit, yet failed to make a timely Haw. 142, 612 P.2d 115 (1980). There was no objection, so waived any error. State also argues overwhelming, uncontradicted evidence of guilt, so the Professor John Barkai, U.H. Law School Page - 153 submission of Exhibit 78 to the jury cannot be deemed harmless. See State v. Pulawa, 62 Haw. 209, 614 P.2d 373 (1980). Judge Mossman, moreover, failed to conduct a voir dire to determine the extent of any jury prejudice. State v. Keliiholokai, 58 Haw. 356, 569 P.2d 891 (1977). Because of the improper submission of those inadmissible portions of Exhibit 78 to the jury, we must conclude that the error is not harmless beyond a reasonable doubt. State v. Domingo, 69 Haw. ---, 733 P.2d 690 (1987). Plain error thus occurred. See State v. LaRue, 68 Haw. ---, 722 P.2d 1039 (1986). ... The sentence is therefore vacated, the guilty conviction is reversed, and the case is remanded for a new trial. Professor John Barkai, U.H. Law School Page - 154 RULE 609.1 EVIDENCE OF BIAS, INTEREST, OR MOTIVE. HRE RULE 609.1 EVIDENCE OF BIAS, INTEREST, OR MOTIVE. (a) General rule. The credibility of a witness may be attacked by evidence of bias, interest, or motive. (b) Extrinsic evidence of bias, interest, or motive. Extrinsic evidence of a witness' bias, interest, or motive is not admissible unless, on cross- examination, the matter is brought to the attention of the witness and the witness is afforded an opportunity to explain or deny the matter. Foundation for extrinsic brought to the attention of impeachment on bias, the witness and the witness interest or motive: BIM is afforded an opportunity to explain or deny the matter. Professor John Barkai, U.H. Law School Page - 155 STATE V. BALISBISANA R 609.1 83 Hawai'i 109, 924 P.2d 1215 (1996) Defendant-appellant Nelson Balisbisana Fujimoto went into the bedroom and appeals from his conviction of abuse of a bathroom and began packing her things. As family or household member, in violation of she was bending over to put her things into a Hawai'i Revised Statutes (HRS) s 709-906 box, Balisbisana kicked her in the buttocks. (1993). Balisbisana contends that the family He ran out to Fujimoto's car, looking for the court's ruling on plaintiff-appellee State of boyfriend he imagined was hiding there, and Hawai'i's (the prosecution) motion in limine, later returned to the bedroom, punched wherein the court excluded reference to the Fujimoto in the arm, and kicked her in the leg. complaining witness's conviction for Fujimoto called the police, who arrested harassing Balisbisana, violated his rights, Balisbisana. The following day, July 20, 1995, under the Hawai'i and United States Balisbisana was charged by complaint with Constitutions, to confront the complaining abuse of family or household member. witness and cross-examine her to expose evidence of her motive for bringing false Prior to the start of the jury trial on August charges against him. For the reasons 15, 1995, the prosecution made an oral motion discussed below, we agree with Balisbisana, in limine, requesting that Balisbisana be vacate the conviction, and remand this case for prohibited from adducing evidence of prior new trial. bad acts of the complainant without an offer of *** proof. Beverly Fujimoto, the complainant, had lived with Balisbisana intermittently since late [Professor's Note: The prior bad act was a 1991. The following account is gleaned from conviction for harassment, a misdemeanor, Fujimoto's testimony at trial. In the week HRS 711-1106. Two weeks before preceding July 19, 1995, Fujimoto had moved Balisbisana's trial, the complainant, out of Balisbisana's home and was staying in a Fujimoto, plead guilty to harassing the hotel while she looked for another place to live. defendant]. On July 19, 1995, Fujimoto telephoned *** Balisbisana. When no one answered, she The only issue on appeal is the trial court's thought that it would be a good time to go to exclusion of Fujimoto's conviction for Balisbisana's house in Kalihi Valley to pick up harassing Balisbisana... some of her personal belongings because he was not there. She parked her car behind the Under HRE Rule 609.1 (1993), “[t]he house, and, as she walked through the yard, credibility of a witness may be attacked by Balisbisana jumped out at her and scared her. evidence of bias, interest or motive....” She told him that she was there to pick up her things, and they went inside. As they were *** walking in, Balisbisana called her a “whore” Balisbisana contends that the trial court and accused her of “fooling around.” violated his right to confrontation by prohibiting cross-examination that would have Professor John Barkai, U.H. Law School Page - 156 demonstrated that Fujimoto had a motive for protected by the sixth amendment to the fabricating the charges against him, that is, United States Constitution, which guarantees retaliation for her conviction. The prosecution an accused, inter alia, the right “to be argues that evidence of Fujimoto's conviction confronted with the witnesses against him [or was inadmissible under HRE Rule 609, which her.]” ... Davis, 415 U.S. 308, 94 S.Ct. 1105; provides in pertinent part that, “[f]or the Delaware v. Van Arsdall, 475 U.S. 673, 106 purpose of attacking the credibility of a S.Ct. 1431, 89 L.Ed.2d 674 (1986); Olden v. witness, evidence that the witness has been Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 convicted of a crime is inadmissible except L.Ed.2d 513 (1988) (per curiam). “Indeed, the when the crime is one involving dishonesty.” main and essential purpose of confrontation is We disagree with the prosecution that HRE to secure for the opponent the opportunity of Rule 609 is controlling. cross- examination [,] ... [and] the exposure of a witness' motivation in testifying is a proper One way of discrediting the witness is to and important function of the constitutionally introduce evidence of a prior criminal protected right of cross examination.” Van conviction of that witness. By so doing the Arsdall, 475 U.S. at 678-79, 106 S.Ct. at cross-examiner intends to afford the jury a 1434-35 (citations and internal quotation basis to infer that the witness' character is marks omitted) (emphasis in original). such that he [or she] would be less likely than the average trustworthy citizen to be In Davis, for example, the defendant truthful in his [or her] testimony. The sought to cross-examine a prosecution witness introduction of evidence of a prior crime is regarding his juvenile record to show that the thus a general attack on the credibility of witness may have made a hasty identification the witness. A more particular attack on of the defendant and otherwise assisted the the witness' credibility is effected by investigation due to fear of possible probation means of cross- examination directed revocation. The Alaska Supreme Court toward revealing possible biases, affirmed the conviction, concluding that prejudices, or ulterior motives of the “counsel for the defendant was able witness as they may relate directly to adequately to question the youth in issues or personalities in the case at hand. considerable detail concerning the possibility Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. of bias or motive[,]” notwithstanding the 1105, 1110, 39 L.Ed.2d 347 (1974). exclusion of the witness's juvenile record. 415 Balisbisana was not attempting to introduce U.S. at 315, 94 S.Ct. at 1109-10. The United evidence of Fujimoto's conviction to impeach States Supreme Court disagreed and reversed, her general character for truthfulness. Rather, stating: he sought to introduce evidence of the conviction for the “more particular” purpose We cannot accept the Alaska Supreme of revealing Fujimoto's motive for falsifying Court's conclusion that the charges against him. cross- examination that was permitted defense counsel was adequate to develop An accused's right to demonstrate the bias the issue of bias properly to the jury. or motive of prosecution witnesses is While counsel was permitted to ask [the Professor John Barkai, U.H. Law School Page - 157 witness] whether he was biased, counsel counsel been permitted to pursue his proposed was unable to make a record from which to line of cross-examination.” Van Arsdall, 475 argue why [the witness] might have been U.S. at 680, 106 S.Ct. at 1436; Corella, 79 biased or otherwise lacked that degree of Hawai'i at 261, 900 P.2d at 1328 (in sexual impartiality expected of a witness at trial.... assault trial where defendant asserted consent On these facts it seems clear to us that to as defense, trial court erred in limiting make any such inquiry effective, defense questioning regarding complainant's counsel should have been permitted to relationship with fiance and financial situation, expose to the jury the facts from which which could provide complainant motive to jurors, as the sole triers of fact and fabricate account of sexual assault and give credibility, could appropriately draw jury significantly different impression of her inferences relating to the reliability of the credibility. (Citations and quotation marks witness. Petitioner was thus denied the omitted.)). Like the Court in Davis, [w]e right of effective cross-examination[.] Id. cannot speculate as to whether the jury, as sole at 318, 94 S.Ct. at 1111 (emphases in judge of the credibility of a witness, would original). have accepted this line of reasoning had counsel been permitted to fully present it. But The appropriate inquiry, therefore, is we do conclude that the jurors were entitled to whether the jury had sufficient information have the benefit of the defense theory before from which to make an informed appraisal of them so that they could make an informed Fujimoto's motives and bias, absent evidence judgment as to the weight to place on of her conviction for harassing Balisbisana. If [Fujimoto's] testimony which provided “a so, the trial court's limitation on Balisbisana's crucial link in the proof ... of [Balisbisana's] right to cross-examine Fujimoto to show act.” Davis, 415 U.S. at 317, 94 S.Ct. at 1111. motive to bring false charges and testify We therefore hold that the trial court abused falsely, on the basis of “unfair prejudice, its discretion in excluding evidence of confusion of issues, confusing the jury, et Fujimoto's conviction from which the jury cetera,” was not an abuse of discretion. See could have inferred that Fujimoto had a Silva, 67 Haw. at 586, 698 P.2d 293 (trial motive to bring false charges against court's exclusion of evidence of witness's bias Balisbisana and give false testimony at trial. against Appellant not an abuse of discretion where other evidence of same witness's bias *** was admitted). In this case, as in Van Arsdall and Davis, defense counsel was not permitted Based on the foregoing, we vacate to expose the fact from which the jurors could Balisbisana's conviction and remand this case appropriately draw inferences relating to for a new trial. Fujimoto's motive or bias. The trial court prohibited all inquiry into Fujimoto's conviction for harassing Balisbisana; yet “a reasonable jury might have received a significantly different impression of [Fujimoto's] credibility had [Balisbisana's] Professor John Barkai, U.H. Law School Page - 158 HAWAII - HRE 613 PRIOR STATEMENTS OF WITNESSES. (a) Examining witness concerning prior statement. In examining a Oral or written PIS witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness Intrinsic Impeachment: at that time, (The Queen is Dead) No disclosure to witness but on request the same shall be shown or disclosed to opposing counsel. Call the Queen's doctor (opposing counsel gets to look) (b) Extrinsic evidence of prior inconsistent statement of witness. EXTRINSIC foundation Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless, on direct or cross-examination, Queen fully alive (1) the circumstances of the statement have been brought to the attention Traditional foundation of the witness, and (person, place, time, substance) (2) the witness has been asked whether the witness made the statement. “Did you say ...?” (c) Prior consistent statement of witness. Evidence of a statement PCS only if previously made by a witness that is consistent with the witness' testimony at the trial is admissible to support the witness' credibility only if it is offered after: (1) Evidence of the witness' prior inconsistent statement has been PIS was used to impeach and admitted for the purpose of attacking the witness' credibility, and the PCS made before PIS consistent statement was made before the inconsistent statement; or (2) An express or implied charge has been made that the witness' Claim or imply fabrication or testimony at the trial is recently fabricated or is influenced by bias or other BIM improper motive, and the consistent statement was made before the bias, and motive for fabrication, or other improper motive is alleged to have arisen; or PCS made before BIM arose (3) The witness' credibility has been attacked at the trial by imputation Claim bad memory and PCS of inaccurate memory, and the consistent statement was made when the made while FRESH event was recent and the witness' memory fresh. Professor John Barkai, U.H. Law School Page - 159 FEDERAL RULE 613 PRIOR STATEMENTS OF WITNESSES Before “restyled” (a) is the same as HRE (a) Examining witness concerning prior Oral or written PIS statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents The Queen is Dead for intrinsic disclosed to the witness at that time, impeachment No disclosure to witness but on request the same shall be shown or disclosed to Call the Doctor. Opposing counsel gets opposing counsel. to look (even with intrinsic) (b) Extrinsic evidence of prior inconsistent EXTRINSIC foundation statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain Queen is alive, but ailing or deny the same Don't disturb her now, you can tell her later and the opposite party is afforded an opportunity to Anytime is ok, even after extrinsic was interrogate the witness thereon, used or the interests of justice otherwise require. can excuse the foundation totally, if witness is gone and cannot be located (could easily happen with Hearsay declarants) This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). Can be used only to impeach unless it qualifies as substantive evidence under HRE 802.1(1) or FRE 801(d)(1). Degree of inconsistency: any material variance Extrinsic = must NOT be COLLATERAL Need a good faith basis to ask Professor John Barkai, U.H. Law School Page - 160 INTRINSIC and EXTRINSIC IMPEACHMENT: RULES 608, 609, 609.1, 613 TYPE INTRINSIC EXTRINSIC FOUNDATION Federal Hawaii PRIOR INCONSISTENT STATEMENT PRIOR INCONSISTENT STATEMENT BIAS (partiality) Defects: PERCEPTION/MEMORY/CAPACITY CONTRADICTORY FACTS CHARACTER ISSUES: CONVICTIONS R 609 PRIOR BAD ACTS 608(b) (of untruthfulness) R 608(b) REPUTATION - OPINION Re: TRUTHFULNESS / UNTRUTHFULNESS R 608(a) INTRINSIC IMPEACHMENT: FRE 613(b) Foundation: EXTRINSIC IMPEACHMENT: HRE 613(b) Foundation: COLLATERAL: BOLSTERING: REHABILITATION PROVISION: GENERAL 613 FOUNDATION: Professor John Barkai, U.H. Law School Page - 161 RULE 613 PRIOR STATEMENTS OF WITNESSES. HAWAII FEDERAL RULE 613. PRIOR STATEMENTS OF WITNESSES RULE 613 PRIOR STATEMENTS OF WITNESSES (a) Examining witness concerning prior statement. In examining a witness (a) Examining witness concerning prior statement. In examining a concerning a prior statement made by the witness, whether written or not, the witness concerning a prior statement made by the witness, whether written or statement need not be shown nor its contents disclosed to the witness at that time, not, the statement need not be shown nor its contents disclosed to the witness but on request the same shall be shown or disclosed to opposing counsel. at that time, but on request the same shall be shown or disclosed to opposing (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic counsel. evidence of a prior inconsistent statement by a witness is not admissible unless, on (b) Extrinsic evidence of prior inconsistent statement of witness. direct or cross-examination, (1) the circumstances of the statement have been Extrinsic evidence of a prior inconsistent statement by a witness is not brought to the attention of the witness, and (2) the witness has been asked whether admissible unless the witness is afforded an opportunity to explain or deny the the witness made the statement. same and the opposite party is afforded an opportunity to interrogate the (c) Prior consistent statement of witness. Evidence of a statement previously witness thereon, or the interests of justice otherwise require. This provision made by a witness that is consistent with the witness' testimony at the trial is does not apply to admissions of a party-opponent as defined in rule 801(d)(2). admissible to support the witness' credibility only if it is offered after: (1) Evidence of the witness' prior inconsistent statement has been admitted for the purpose of attacking the witness' credibility, and the consistent statement was Before “restyled” made before the inconsistent statement; or (2) An express or implied charge has been made that the witness' testimony at the trial is recently fabricated or is influenced by bias or other improper motive, and the consistent statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen; or (3) The witness' credibility has been attacked at the trial by imputation of inaccurate memory, and the consistent statement was made when the event was recent and the witness' memory fresh. Professor John Barkai, U.H. Law School Page - 162 PRIOR BAD ACTS & BIAS IMPEACHMENT PROBLEMS 1B At Albert's trial for possession and sale of cocaine, Albert takes the witness stand. Should the prosecution be permitted to ask the following questions? (a) “Albert, isn't it a fact that you robbed a Long's store last year?” (b) “Thirteen years ago Albert, you were arrested for turning back odometers, weren't you?” (c) “Last week, you smoked a marijuana joint at a rock concert, didn't you?” 2B At Albert's trial on the charge of illegal possession and sale of cocaine, Albert testifies and is impeached by a prior conviction. Albert next calls his sister, Judy, to the witness stand. Discuss the admissibility of the following testimony. Judy testifies on direct examination as follows: (a) I am familiar with Albert's reputation in the community for truthfulness. Albert's reputation in the community for truthfulness is good. (b) I would believe Albert under oath. (c) Just last week I heard Albert scold our little brother for lying to one of his friends. 3B Discuss the admissibility of the following testimony. On cross-examination, Judy is asked the following questions by the prosecutor: (a) You know don't you that Albert was convicted eleven years ago for robbery of a liquor store? (b) Are you aware that thirteen years ago Albert was arrested for turning back odometers? (c) Have you heard that Albert was fired last week from his job at Seats for shoplifting? (d) Judy, isn't it a fact that you are a prostitute? (e) Judy, you are the defendant's sister, aren't you? (f) Judy, Albert has promised you a job if he is found innocent, didn't he? 4. The defendant, Alexander, is charged with the unlawful possession of a firearm by a felon. At trial, the defendant's friend, Preston, testifies for the defense. Preston states that the gun in question, found on the ground near Alexander, was really his (Preston's). Is the following cross-examination by the prosecutor permissible? Q: “Preston, isn't it true that you and Alexander are a both members of the gang called “Anything for your Buddy”? Professor John Barkai, U.H. Law School Page - 163 CONTRADICTION & PRIOR STATEMENTS PROBLEMS (INCONSISTENT & CONSISTENT) 1. Negligence action following a two car collision. Plaintiff calls Witness 1, who testifies that she was a passenger in Plaintiff’s car, that she looked down for a moment to change the radio from a rock station to a country music station, and that when she looked up, she saw Defendant cross the center line, veer into Plaintiff’s path, and strike Plaintiff’s car head-on. On cross-examination, Defendant asks Witness 1, “Isn’t it true that Plaintiff is the one who crossed the center line?” Plaintiff objects that this is improper impeachment. How should the court rule? (L\G 464) 2. Same case. Assume Witness 1 refuses to acknowledge that it was Plaintiff who crossed the center line. May Defendant now call Witness 2 to testify to that effect? 3. Same case. Defendant calls Witness 3, a back-seat passenger in Plaintiff’s car, to testify that just before the accident, Witness 1 was not looking down to tune the radio, but had her head turned toward the back seat, was engaged in a conversation with Witness 3, and never turned her head forward before the crash. Plaintiff objects that this is improper impeachment. How should the court rule? 4. Same case. Assume that instead of testifying as in Question 3, Witness 3 will testify that Witness 1 was not changing the station from rock to country, but from country to rock, just before the accident. Plaintiff objects that this is improper impeachment. How should the court rule? 5. Prosecution of Defendant for robbery of Victim’s jewelry store. The prosecutor calls Witness, who testifies that she saw a woman running from the store just after the alarm started to sound. On cross-examination, Defendant asks Witness, “isn’t it true that just after the robbery, you told the police that the robbery was committed by a man?” Is this intrinsic or extrinsic impeachment? Is this evidence admissible? If so, for what purpose? (L\G 473) 6. Same case. To prove that Witness made the prior statement, Defendant calls the police officer with whom Witness spoke, and asks the officer to relate Witness’s statement that the robbery was committed by a man. Is this intrinsic or extrinsic impeachment? Is this evidence admissible? If so, for what purpose? Is any special foundation required before the impeachment attempt? 7. Same case. Assume that Witness’s prior statement was made in a sworn affidavit rather than orally to the police officer. The prosecutor objects. Is this evidence admissible? If so, for what purpose? 8. In the Hawaii Liquor Commission v. Jones case, on cross-exam of Bier by the Professor John Barkai, U.H. Law School Page - 164 attorney for Cute-Rate: a. Impeach Bier from the report, assuming Bier testified on direct exam: “I saw Watkins from the waist up inside the store.” b. Impeach Bier from the report, assuming Bier testified on direct exam: “As I was watching him inside the store, I saw that Watkins stumbled and almost fell as he approached the counter.” c. Impeach Bier, assuming that Bier was deposed under oath, and the deposition reads: Q: Now Officer Bier, how was Watkins walking when he was inside the store? A: I can't say for sure. I only saw him from the shoulders up when he was inside. You will be asked to “do” these three impeachments in class on the day in October that we have our small group sessions on “foundations and impeachment.” Professor John Barkai, U.H. Law School Page - 165 EVIDENCE COURT OBSERVATIONS Date of Observation ; Date of submission Name ______________________ Court Observed:* Circuit Court (777 Punchbowl Street) 3rd and 4th floors. Federal Court (300 Ala Moana Boulevard) Court TV/ truTV/ video access Judge: Time observed:__________ (45 minutes required) 1. Briefly describe the type of case(s) you observed and which part of the proceedings you saw. 2. Identify some of the evidentiary issues you observed and explain them. For example: objections made (or that could have been made), types of evidence introduced (documents, photos, diagrams, police reports, depositions, etc.), foundations presented, hearings outside the presence of the jury, relevance issues, impeachment, expert testimony, character evidence, hearsay, privileges, trial skills, questions you have about the process, etc. What did you learn about evidence from this observation? Professor John Barkai, U.H. Law School Page - 166
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