EVIDENCE _LAW 543_ by wulinqing

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									EVIDENCE (LAW 543)                                            Fall 2011

                      HANDOUT # 2

               CASES & PROBLEMS:


                  Appellate Review
                 Witness Examination
                    Best Evidence

  Professor John Barkai & Judge Richard Pollack
       William S. Richardson School of Law
           University of Hawaii at Manoa
                  (808) 956-6546

          Cases are reprinted from Westlaw with permission.
                                TABLE OF CONTENTS

APPELLATE REVIEW OF EVIDENTIARY ISSUES ............................ 1

RELEVANCE ....................................................................................... 4
State v. Jaeger, 973 P.2d 404 (Utah 1999) ......................................... 5
State v. Arlt, 9 Haw.App. 263, 833 P.2d 902 (1992) ............................ 8
State v. Johnson, 3 Haw.App. 472, 653 P.2d 428 (1982) ................... 9
State v. Palisbo, 122 Haw. 546 (Unpublished) (2010)....................... 10
State v. Alston, 75 Haw. 517, 865 P.2d 157, 168 (1994) ................. 13
Evidence Irrelevant Under Rule 401 .................................................. 14
Practice cases:
     Look Before You Wheely .......................................................... 16
     A Night At The Ace Bar And Grill .............................................. 17
401 Relevancy Problems .................................................................. 18
U.S. v. Noriega, 117 F.3d 1206 (1997) .............................................. 19
State v. Klafta, 73 Haw. 109, 831 P.2d 512 (1992) ........................... 21
State v. Edwards, 81 Haw. 293, 916 P.2d 703 (1996) ...................... 24
Kaeo v. Davis, 68 Haw. 447, 719 P.2d 387 (1986) .......................... 25
Evidence Irrelevant Under Rule 403 .................................................. 29
U.S. v. Old Chief, 519 U.S. 172 (1997) ............................................. 32
State v. McNeely, 8 P.3d 212 (Or.2000) ............................................ 34
403 Relevancy Problems .................................................................. 35

COMPETENCE ................................................................................. 36
State v. Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993) ....................... 37
State v. Moreno, 68 Haw. 233, 709 P.2d 103 (1985) ....................... 40
Rock v. Arkansas, 483 U.S. 44 (1987) ............................................. 41
Competency Problems ..................................................................... 43

WITNESS EXAMINATION................................................................. 44
State v. Marsh, 68 Haw. 659, 728 P.2d 1301 (1986) ........................ 45
State v. Rulona, 71 Haw. 127, 785 P.2d 615 (1990) ......................... 46
Tanner v. U.S., 483 U.S. 107 (1987) ................................................. 47
State v. Furutani, 76 Haw. 172, 873 P.2d 51 (1994) ......................... 50
State v. Yamada, 108 Haw. 474, 122 P.3d 254 (2005) ..................... 51
Side-by-side Comparison of HRE / FRE 606 .................................... 54
Baker v. State, 35 Md.App. 593, 371 A.2d 699 (1977) ...................... 55

Professor John Barkai, U.H. Law School                                                     Page - i
Toledo v. Lam, 67 Haw. 20, 675 P.2d 773 (1984) ............................. 59
The Jencks Act, 18 U.S.C. § 3500: ................................................. 59
State v. Leong, 51 Haw. 581, 465 P.2d 560 (1970) .......................... 60
State v. Elmaleh 7 Haw.App. 488, 782 P.2d 886 (1989) ................... 61
Witness Examination Problems ......................................................... 64

WITNESS EXAMINATION SIMULATION .......................................... 65
Direct Examination ............................................................................ 66
Cross Examination ............................................................................ 68
Some Common Legal Objections ...................................................... 70
Hawaii Liquor Commission v. Jones ................................................ 71
Hawaii Liquor Commission v. Jones - Evidentiary Problems ............ 73
Foundations and Impeachment Class Material ................................. 74

AUTHENTICATION ........................................................................... 82
Exhibits - Steps In Introducing Exhibits ............................................. 83
State v. Sequin, 73 Haw. 331, 832 P.2d 269 (1992) ......................... 84
State v. Vance, 61 Haw. 291, 602 P.2d 933 (1979) .......................... 85
Bruther v. General electric, 818 F.Supp 1238 (S.D. Ind. 1993) ......... 86
United States v. Casto, 889 F.2d 562 (5th Cir. 1989) ........................ 88
United States v. Grant, 967 F.2d 81 (2d Cir. 1992) ........................... 89
United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998) ............... 90
United States v. Jackson, 208 F.3d 633 (7th Cir. 2000) .................... 92
State v. Konohia, 106 Haw. 517, 107 P.3d 1190 (2005) ................... 94
Pioneer Mill Company v. Dow, 90 Haw. 289, 978 P.2d 727 (1999) ... 96
Authentication Problems ................................................................... 98

BEST EVIDENCE ............................................................................ 100
HRE 1001 - 1008 ............................................................................. 101
United States v. Duffy, 454 F.2d 809 (5th Cir. 1972) ....................... 102
Seiler v. Lucasfilm, 808 F.2d 1316 (1987) ....................................... 103
Best Evidence / Original Writings Problems .................................... 105

Professor John Barkai, U.H. Law School
IMPEACHMENT .............................................................................. 108
HRE Impeachment Overview - JB ................................................. 109
FRE Impeachment Overview - JB ................................................. 110
Rule 607. Who May Impeach .......................................................... 111
HRE & FRE Rule 609 (Side-by-side) (SBS) .................................... 112
HRE 609 - JB ................................................................................ 113
FRE 609 - JB ................................................................................. 114
State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) H 609 .......... 116
U.S. v. Bracken, 969 F.2d 827 (9th Cir. 1992) F 609 ...................... 118
Luce v. United States, 469 U.S. 38 (1984) F 609 ............................ 120
Ohler v. United States, 529 U.S. 753 (2000) F 609 ......................... 121
Prior Conviction Problems ............................................................... 123
Impeachment Chart Problems - Rules 609 - JB ............................ 124
HRE 608 - JB ................................................................................ 125
FRE 608 - JB ................................................................................. 126
State v. Torres, 85 Haw. 417, 945 P.2d 849 (1997) R 608(a) ......... 127
State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987) R 608(b) ....... 131
HRE 609.1 Evidence of bias, interest, or motive .......................... 138
State v. Balisbisana, 83 Haw. 109, 924 P.2d 1215 (1996) R 609.1 139
HRE 613, Prior Statements of Witnesses ...................................... 142
FRE 613, Prior Statements of Witnesses ....................................... 143
Intrinsic and Extrinsic Impeachment: Rules 608, 609, 609.1, 613 .. 144
Rule 613 Prior Statements of Witnesses (SBS) ............................. 145
Prior Bad Acts & Bias Impeachment Problems ............................... 146
Contradiction & Prior Statements Problems .................................... 147
Court Observation Form #1 ............................................................. 149

                                  Supplemental Cases

State v. Kassebeer, 118 Hawai'i 493, 193 P.3d 409 (2008) ............ 150
                                Motion to Strike
State v Espiritu, 117 Hawai'i 127, 176 P.3d 885 (2008) .................. 151
                                         Best Evidence, Hearsay, Refreshing Recollection

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

       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

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

       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

Professor John Barkai, U.H. Law School   Page - 4
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 - 5
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 - 6
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 - 7
                                            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                 [1][2] 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....
                                                                 [3] 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 - 8
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 - 9
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 - 10
“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

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 - 11
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 - 12
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 - 13
                                  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

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 - 14
                            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 - 15
                                     Practice Case A - Civil
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.


  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
  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 - 16
Practice Case B - Criminal
  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
   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
   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

Professor John Barkai, U.H. Law School                                                          Page - 17

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 - 18
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 - 19
actual services he had performed....                STATE v. KLAFTA                    R 403
     Our review leads us to conclude that           73 Haw. 109, 831 P.2d 512 (1992)
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.
     ...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 - 20
   Before LUM, C.J., and PADGETT,                      who were involved in finding Heather on the
HAYASHI, WAKATSUKI and MOON, JJ.                       steep embankment next to the reservoir, and
PADGETT, Justice writes the opinion                    observed her condition at that time. Two of
                                                       these people were police officers, one of whom
... Sometime after noon on Saturday, April 21,         recovered maggots from Heather's diaper, put
1990, Heather Klafta, an infant, some 16 months        them in a preservative container and turned
old, was found lying face-down on the steep            them over to the entomologist who testified. In
bank of Lake Wilson, dehydrated, dirty, with dirt      addition, the State produced another officer who
in her mouth, numerous bruises, and infested           went over the area the day following, and
with maggots which were eating her. When the           observed a mongoose some 50 feet from where
police were able to find out who she probably          Heather was found.
was, they went to the nearby home of appellant,             The State also produced evidence of Dr.
her mother, to inquire. The divorced father, who       Craig Thomas, the emergency room physician
was there, informed them that the appellant had        who first treated Heather at the Wahiawa
told him that Heather had been taken away by           General Hospital;        the testimony of Dr.
the social services, and the appellant said that       Frederick Burkle, Jr., the physician who treated
Heather had been kidnapped on the previous             Heather at Kapiolani Hospital, when she was
Thursday, the 19th, by two black men.                  transferred there following the emergency
     It subsequently developed that Heather had        treatment at Wahiawa General; and Dr. Goff, an
in fact been abandoned by the appellant about          entomologist who explained the life cycle of the
2:00 a.m. on April 20th on a dirt mound between        maggots found on Heather and their significance
a road and the Wahiawa Reservoir.                A     with respect to the time frame.
6-year-old sister was a witness to the                      In addition, the State produced photographs
abandonment, and had attempted unsuccessfully          of Heather in the condition in which she was
to get her mother to go back for the child the         found.
next day. Appellant told the sister to say that she,        At trial, appellant objected to all of this
appellant, had given the child away to a social        testimony as being irrelevant and prejudicial.
worker and later told the sister to say that           She also objected to exhibits 8, 9, 10, 11, 15, and
Heather had been kidnapped. When the                   16; the testimony of Dr. Thomas; and the
ex-husband and father of Heather returned to the       testimony of the neighbors Troutman, Perry,
Wahiawa apartment of appellant on the evening          Villanueva, Casas, and Galban as cumulative, in
of the 20th, appellant told him Heather had been       addition to being irrelevant and prejudicial. ...
taken away by social services. Although there               The principal trial issue in this case was the
was a medical opinion that Heather would not           appellant's intent in abandoning Heather and
have survived another 24 hours, exposed as she         leaving her abandoned until she was finally
was, she recovered, and appellant was                  found. Framed in the statutory language, did
subsequently indicted, and ultimately convicted,       appellant, by abandoning Heather, intentionally
for attempted murder in the second degree.             engage in conduct which was a substantial step
     At trial, the State elicited testimony from       in a course of conduct intended or known by her
six neighbors who had observed Heather's               to be such as to cause Heather's death.
physical condition in the days preceding the                [1] The evidence of Heather's physical
abandonment, had observed appellant with               condition in the days immediately preceding the
Heather, and some of whom had observed                 abandonment, appellant's conduct toward her,
appellant after the abandonment, and before            where and when Heather was found, her
Heather was found.                                     condition at that time, and the period during
     The State also produced several witnesses         which she had been abandoned were all

Professor John Barkai, U.H. Law School                                                          Page - 21
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
     [2] 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
     [3] 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.
     [4] 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.)
testimony with respect to the maggot infestation         The State made its case against Sharon
of Heather was unduly prejudicial, we again see     Klafta by presenting evidence, which in the
no abuse of discretion. Probative evidence          majority's own words was “revolting to a person
always “prejudices” the party against whom it is    of ordinary sensibilities.” While evidence of

Professor John Barkai, U.H. Law School                                                       Page - 22
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
largely repetitive accounts of the maggots in
Heather's flesh by the two doctors, Dr. Craig
Thomas and Dr. Frederick Burkle, Jr., who
treated Heather. Further, each time one of these

Professor John Barkai, U.H. Law School                                                          Page - 23
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 - 24
KAEO v. DAVIS                                                                            R 401, 403
68 Haw. 447, 719 P.2d 387 (1986)

      Guardian of passenger injured when vehicle             [1] 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.
      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 - 25
     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              [2] 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 - 26
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[03] (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 - 27
403.                                                    since the reports were prepared by officers of the
                         B.                             Honolulu Police Department. Nor can we say its
      [3][4] 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
     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 - 28
                                       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

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

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

                               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 - 29
“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.

Professor John Barkai, U.H. Law School                                                          Page - 30
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

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 - 31
                      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 - 32
     ....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 - 33
STATE v. McNEELY, 8 P.3d 212 (Or.2000)
     [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 - 34
  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 - 35
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
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 - 36
           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               [16] 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 - 37
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 - 38
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
    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 - 39
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
    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.
    [3] 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 - 40
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 - 41
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 - 42

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 - 43

Professor John Barkai, U.H. Law School   Page - 44
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                  [3] 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
    [1] 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 - 45
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

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 - 46
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 - 47
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...
                                                                  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 - 48
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 - 49
State v. Furutani 76 Hawai'i 172, 873 P.2d 51 (1994)
FACTS:        After trial a juror told the    making a showing of prejudice under
court that she had voted to convict only      these constraints,” id., we hold that when
because she was pressured to do so by         a criminal defendant makes a prima facie
other jurors who wanted to go home for        showing that improper juror comments
the weekend. Later the same day, she          during deliberations have been “used as
also represented to defense counsel that      a circumstance against” him or her, see
she had voted to convict on the counts as     Carrillo, 566 S.W.2d at 914, “there is a
to which Furutani's signatures on checks      presumption of prejudice and the verdict
and tax returns were material only            will be set aside unless it is clearly
because another juror had opined during       shown that the juror's [comments] could
deliberations that if the signatures were     not have affected the verdict.” Sears,
not Furutani's, he would have taken the       Roebuck and Co., 70 Haw. at 564, 777
stand and said so.                            P.2d at 717 (citations omitted). And
                                              consistent with our case law, the burden
... “The general question, therefore,         is on the prosecution to make such a
becomes whether the defendant has been        “clear showing” beyond a reasonable
substantially prejudiced by particular        doubt. Williamson, 72 Haw. at 102, 807
comments or statements made by jurors         P.2d at 596; Larue, 68 Haw. at 578, 722
during deliberations regarding his or her     P.2d at 1042; Amorin, 58 Haw. at 630,
failure to testify. See Lopez v. Sears,       574 P.2d at 900.
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             We hold that the circuit court's COL
difficulty in showing prejudice arising       that     juror    “misconduct       during
from      jury     misconduct      [during    deliberations deprived [Furutani] of a
deliberations] is that [u]nder [Hawai'i       trial by twelve fair and impartial jurors”
Rules of Evidence (HRE) ] 606(b) ..., we      was not clearly erroneous. ...
cannot consider ... jurors' testimony as to
the effect of the improper statement[s]                    IV. CONCLUSION
upon them. We can only consider                  Inasmuch as the circuit court's FOFs
whether such ... statement[s] [were]          [Finding of Facts] and COL
made ..., and whether, given [those]          [Conclusions of Law] were not clearly
statement[s], we can say that [the            erroneous, we hold that the circuit court
defendant] had a trial before an impartial    did not commit an abuse of discretion in
jury.                                         granting Furutani's motion for new
...                                           trial. ... Affirmed.
    “[R]ecogniz[ing] the difficulty in

Professor John Barkai, U.H. Law School                                         Page - 50
                  SLEEPING JUROR?                      following grounds: (1) several jurors “seemed
                                                       sleepy [during defense counsel's closing
           STATE v. YAMADA                             argument] and did not consider the closing
     108 Hawai'i 474, 122 P.3d 254 (2005)
Background: Defendant was convicted of
                                                       After the court denied Yamada's motion, the jury
robbery and assault, but trial court granted a new
                                                       returned a unanimous verdict finding Yamada
trial because juror was sleeping during defense
                                                       guilty as charged on all counts. The court then
counsel's closing argument. Prosecution
                                                       dismissed the jury, except for the three jurors,
                                                       who were believed to be sleeping during closing
Holding: The Supreme Court, Moon, C.J., held
                                                       arguments. The court then proceeded to voir
that juror's misconduct was not prejudicial.
                                                       dire...the three jurors, only Saka admitted to
Vacated and remanded. Acoba and Duffy, filed
                                                       sleeping during the parties' closing arguments....
dissenting opinions.
                                                       THE COURT: [Saka], it's the procedure if
Opinion of the Court by MOON, C.J.
                                                       someone-if a juror is perceived to maybe have
Plaintiff-appellant State of Hawai i [hereinafter,
                                                       closed their eyes or gone to sleep during-not the
the prosecution] appeals ... findings of fact,         trial but closing, did at anytime during closing
conclusions of law and order of the Circuit Court      arguments when [the prosecution] or [defense
of the First Circuit, granting a new trial to          counsel] were arguing the case, did you go to
defendant-appellee Kaleokalani Yamada, who             sleep?
had been convicted of two counts of robbery in         [Saka]: I may have passed out a couple of
the first degree. ... On appeal, the prosecution       seconds, but I did notice on the Power Point, I
contends that the trial court abused its discretion    think it was during [the prosecution's closing
in granting Yamada's motion for new trial              argument] and when I did open them, it came
inasmuch as the court based its decision on the        back up, it was pretty much on the same bullet
sole ground that a juror slept through twelve          point...
minutes of defense counsel's one-hour long
closing argument, “without a showing of actual         The court summarized the jurors' statements: It
prejudice from the defense or a finding of             sounds to me like [the foreperson], even though
prejudice by the circuit court, and where the          her eyes were closed, was able to hear. She may
record as a whole evinced no prejudice to              have been a little drowsy, so to speak, but people
defendant.” For the following reasons, we              get drowsy. Mr. Gomez clearly was wide awake.
vacate the circuit court's March 15, 2004 order         [Saka] said he was asleep for ten to 15 seconds,
and remand this case for sentencing....                but he doesn't know. He may have missed as
                                                       much as 20 percent of the defense closing...
At trial, the prosecution presented two witnesses
who positively identified Yamada in a police lineup.   On March 14, 2004, the court entered an order
 Yamada presented one alibi witness who                granting Yamada's motion for new trial, finding
testified that she was with him at her house on the    and concluding as follows:...
night of the incident and that Yamada had              3. The Court granted the Motion on the sole basis
remained with her until the next afternoon.            that a juror was asleep for about twenty per cent
Additionally, Yamada's then-employer testified for     (20%) of defense counsel's closing argument,
the defense as to Yamada's physical appearance         that was approximately one hour long, thus the
and pertinent company policies regarding               juror was asleep for about twelve (12) minutes.
physical appearance to contradict the prosecution      III. DISCUSSION
witnesses' physical descriptions of the
perpetrator....                                        On appeal, the prosecution argues that the trial
                                                       court abused its discretion by granting Yamada's
The next morning, outside of the jury's presence,      motion for new trial based on a juror sleeping
defense counsel moved for a mistrial on the            during defense counsel's closing argument,

Professor John Barkai, U.H. Law School                                                         Page - 51
“without a showing of actual prejudice from the         granted the motion for new trial “on the sole basis
defense or a finding of prejudice by the circuit        that a juror was asleep for about ... twelve (12)
court, and where the record as a whole evinces          minutes.” Finding No. 3. Generally, courts have
no prejudice to [Yamada].” Specifically, the            held that “the mere falling asleep for a short time,
prosecution asserts that finding that a juror was       by a juror, during the argument of counsel for the
sleeping, without more, does not demonstrate            defendant in a criminal cause, does not of itself
prejudice and that any misconduct on Saka's part        constitute a sufficient cause for a new trial.”
was harmless because (1) he did not sleep
through any testimony, evidence, or jury                In U.S. v. Barrett, 703 F.2d 1076, as amended,
instructions and (2) the portion of the argument        (9th Cir.1982), the court followed the same test,
allegedly missed was not significant. Moreover,         noting:
the prosecution points out that, if defense counsel         Even if the juror in the present case is found to
believed Saka slept through significant portions of         have been asleep during portions of the trial,
the proceedings, defense counsel was under the              a new trial may not be required if he did not
duty to bring the misconduct to the court's                 miss essential portions of the trial and was
attention at that time for the court to correct the         able fairly to consider the case...
problem immediately.                                    Thus, the dispositive question for us in this appeal
                                                        is whether the prosecution has overcome the
With respect to jury misconduct, this court has         rebuttable presumption by showing that the
noted:                                                  alleged deprivation of the right to a fair trial was
The sixth amendment to the United States                harmless beyond a reasonable doubt. We
Constitution and article I, section 14 of the           believe it has.
Hawai i Constitution guarantee the criminally
accused a fair trial by an impartial jury...If any      Initially, as the prosecution points out, there is
juror was not impartial, a new trial must be            nothing in the record of the instant case to
granted.                                                suggest that Saka slept through any of the
    However, “not all juror misconduct necessarily      evidence adduced at trial or any of the jury
    dictates the granting of a new trial. A new trial   instructions that were given. There is also
    will not be granted if it can be shown that the     nothing in the record to suggest that he was
    jury could not have been influenced by the          unable to fully participate in jury deliberations...
    alleged misconduct.” Furutani, 76 Hawai i at
    180, 873 P.2d at 59....                             Even if Saka was sleeping and did not hear a
Where the trial court determines that the juror         portion of defense counsel's closing arguments,
misconduct could substantially prejudice the            he was given the correct instruction, and we
defendant's right to a fair and impartial jury, a       presume he followed it...We, therefore, believe,
rebuttable presumption of prejudice is raised and       based on the totality of circumstances, that the
the court must investigate the totality of              prosecution has met its burden in establishing
circumstances to determine if the misconduct            that the alleged deprivation of the right to a fair
impacted the jury's impartiality...In order to          trial was harmless beyond a reasonable doubt...
overcome the rebuttable presumption, the
prosecution must show that the alleged                  Although we do not condone jurors sleeping or
deprivation of the right to a fair trial was harmless   being otherwise inattentive while court is in
beyond a reasonable doubt.                              session, we recognize-as did the Supreme Court
                                                        of California in Hasson v. Ford Motor Company,
Assuming that Saka's sleeping constituted               32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P.2d 1171
misconduct, the trial court was under the duty to       (1982), that, at some point during a trial, even the
“determine whether the misconduct [was] of a            most diligent jurors may be less than one hundred
nature which could substantially prejudice              percent focused on the proceedings and may
[Yamada]'s right to a fair trial.” Adams, 10            “reach the end of [their] attention span at some
Haw.App. at 599, 880 P.2d at 232. The trial court       point during a trial and allow [their] mind[s] to
did not expressly enter a finding of prejudice, but     wander temporarily from the matter at hand.”...

Professor John Barkai, U.H. Law School                                                              Page - 52
Although the trial court in the instant case did not       Here the court did everything it was supposed to do in
explicitly determine that the juror's sleeping             making an inquiry into the juror misconduct. Under
constituted misconduct, we agree with its implicit         our case law, the court's decision is entitled to
finding that, by sleeping for twelve minutes, the          substantial deference by virtue of the abuse of
juror breached his duty of attentiveness and that          discretion standard.
he was, therefore, guilty of juror misconduct.
However, as emphasized by the court in Hasson              Deference to the court is also compelled because here
and as this court has repeatedly stated, “not all          the trial judge has been engaged with the jurors in the
juror misconduct necessarily dictates the granting         trial of the case, questioned and instructed them, and
of a new trial.”...As previously stated, once the          observed them and attended to them over several
trial court determines that juror misconduct could         days.
substantially prejudice the defendant's right to a
fair and impartial jury, -which we believe was             Dissenting Opinion by DUFFY, J.
implicit in the trial court’ granting of a new trial,- a   I respectfully dissent. The record presented does not
rebuttable presumption is raised, and the                  show that the circuit court abused its discretion in
prosecution must then show that the alleged                granting a new trial based on juror misconduct. As the
deprivation of the right to a fair trial was harmless      dispute between the majority and dissenting opinion of
beyond a reasonable doubt. And, as previously              Justice Acoba itself demonstrates, reasonable people
discussed, we agree with the prosecution that,             can reasonably differ in their judgment as to whether
based on the totality of circumstances, the juror          the sleeping juror could have substantially prejudiced
misconduct in this case was harmless beyond a              Yamada's right to a fair trial. Under the abuse of
reasonable doubt.                                          discretion standard, therefore, it cannot be said that
                                                           the circuit court clearly exceeded the bounds of reason
Finally, we emphasize, as the court did in Hasson,         in ordering a new trial...
   Retrials are to be avoided unless necessitated          In my view, where, as here, reasonable people can
   by a more substantial dereliction of jurors'            reasonably differ, reversal of the circuit court's
   duties than was evident in this case. “Society          decision constitutes an inappropriate intrusion on the
   has a manifest interest in avoiding needless            province of the trial court to make determinations
   retrials: they cause hardship to the litigants,         regarding the credibility of jurors and the effect of juror
   delay the administration of justice, and result in      misconduct upon Yamada's right to a fair trial...
   social and economic waste.”
                                                           Here, the circuit court was the trier of fact with respect
Accordingly, we hold that the trial court abused its       to the motion for a new trial... Having heard the entire
discretion in granting a new trial.                        case, it conducted a voir dire of the allegedly sleeping
                                                           jurors; evaluated their statements, demeanor, and
Dissenting Opinion by ACOBA, J.                            conduct; and ultimately concluded that Yamada's right
I respectfully disagree.                                   to a fair trial had been prejudiced. Under these facts,
                                                           therefore, I am unable to conclude that the circuit court
A slumbering juror is not a competent one. While the       abused its discretion in granting a new trial based on
prejudicial effect of such conduct may rest on the         juror misconduct.
specific facts of a case, in light of our case law we
ought not to establish the legal precedent in this         Accordingly, I would affirm the circuit court's order
jurisdiction that sleeping through twenty percent of a     granting a new trial based on juror misconduct.
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

Professor John Barkai, U.H. Law School                                                                    Page - 53
                                                RULE 606. COMPETENCY OF JUROR AS WITNESS

                                   HAWAII                                        FEDERAL
                                                                                 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 - 54
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 - 55
   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 - 56
   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 - 57
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.
                                                              Reversed; Remanded
   Jerome Frank in Fanelli v. United States Gypsum
Co., 141 F.2d 216, 217 (2d Cir. 1944), put it in these
   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 - 58
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
    [5] 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.
    [6] 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
    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
    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.
    [7] 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 - 59
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                [3] 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         [4][5] 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.
    [1][2] 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                [6] 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 - 60
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 - 61
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
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.


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.”


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 - 62
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

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....


Professor John Barkai, U.H. Law School                                                               Page - 63
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 - 64

Professor John Barkai, U.H. Law School   Page - 65
                              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.


-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

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

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

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 - 66
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

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

  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?

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?

Professor John Barkai, U.H. Law School                                                         Page - 67
                              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 - 68
    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.


    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 - 69
                        SOME COMMON LEGAL OBJECTIONS
“Objection, your Honor,”

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


Leading and suggestive of the answer
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
Privileged communication

Vague and Ambiguous

Professor John Barkai, U.H. Law School                                Page - 70
    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.


     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 - 71
Professor John Barkai, U.H. Law School   Page - 72
                         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 - 73

  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).


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 - 74
                                   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
         Q.   I am now showing State Exhibit #1 to opposing counsel. (Shows report to defendant’s
         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 - 75
                        PAST RECOLLECTION RECORDED
                                 HRE 802.1(4)

       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
        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 - 76
                                   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
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 - 77

        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


        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 - 78
       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 - 79
                             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.


         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,
       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 - 80
             the incident, right?
       A. Yes.
       Q. In fact, you’re taught to write down the actual words someone you arrest uses, aren’t
       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,
       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 - 81

Professor John Barkai, U.H. Law School   Page - 82
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)

-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?”


       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?”


“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.

    “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

Professor John Barkai, U.H. Law School                                                      Page - 83
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.

         [1] 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.” ...

        [2] 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
        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....

Professor John Barkai, U.H. Law School                                                      Page - 84
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.

       [12] 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.

        [13] 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. ...

       [14] 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 - 85
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
         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 - 86
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 - 87
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 - 88
UNITED STATES v. GRANT, 967 F.2d 81 (2d Cir. 1992)

         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 - 89
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.]

         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
         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
         Next, Jeff Bewley, the Server Administrator for an Internet service provider testified that the

Professor John Barkai, U.H. Law School                                                         Page - 90
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 - 91
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

        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 - 92
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 - 93
                                                                          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

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 - 94
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 - 95
                                                                                                     HRE 901
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.

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 - 96
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

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
        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 - 97
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
       (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 - 98
               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

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

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

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 - 99
             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).

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).

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
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 - 100
                                   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 - 101
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.

    . 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 - 102
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 - 103
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 - 104
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 - 105
   appearance of the plugs. D objects on grounds of the best evidence rule. What ruling and why? (G

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

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 - 106
       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 - 107
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 t o 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, eit her by what it says or by what it
omits to say affords some indication that the fact was different from the testimony of 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 - 108
                    HRE IMPEACHMENT OVERVIEW
                   No Rules: CAPACITY & CONTRADICTORY FACTS
RULE 607 - can impeach a witness you called for direct

   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
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

  (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)

  ... 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

  (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
  (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
  (3) used to counter attack on memory (PCS made when the memory was fresh)

Professor John Barkai, U.H. Law School                                                     Page - 109
                         No Rules: CAPACITY, CONTRADICTORY FACTS, BIAS
RULE 607. - can impeach a witness you called for direct

    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 ...?]

  (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

    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]

   (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 - 110
                   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 - 111
                                   RULE 609 IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME.
                             HAWAII                                                                     FEDERAL - Amended in 2006
 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 - 112
                          HAWAII - HRE RULE 609
                                         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
           (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
          (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.”

Professor John Barkai, U.H. Law School                                            Page - 113
                             FEDERAL FRE 609
     (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
     (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.
     However, evidence of a conviction more than 10 years old as calculated         advance written notice

Professor John Barkai, U.H. Law School                                                      Page - 114
                             FEDERAL FRE 609
     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
       (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
                                                                                           Amended in 2006
  Factors are not specified
  Do judges really apply different tests?
  Does it matter?

Professor John Barkai, U.H. Law School                                                  Page - 115
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
    [1] 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 - 116
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
    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 - 117
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 - 118
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.

Professor John Barkai, U.H. Law School                                                                    Page - 119
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 - 120
     ...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


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 - 121
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 - 122
                      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

    (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 - 123

        What can you say about Impeachment by Prior Conviction under the two 609 Rules
 Who / under what                                Hawaii                       Federal
 Everyone EXCEPT
 criminal DEFENDANT
                  Crim Def
 Appeal Pending

                                UNDER WHAT CONDITIONS?
                                    HAWAII RULES                           FEDERAL RULES
 Charge               Witness                Defendant          Witness              Defendant
 Felony Perjury
 Theft, HRS
 Theft, HRS

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 - 124
                             HAWAII - HRE RULE 608
        (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
    (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
     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

Professor John Barkai, U.H. Law School                                                 Page - 125
                                      FEDERAL FRE 608
    (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 - 126
       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                  [10] 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 - 127
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 - 128
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              [12] 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.
       [11] 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[3], 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 - 129
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
       c. Complainant's defective memory.
       [13] 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 - 130
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 - 131
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 - 132
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 - 133
            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             [10] 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
    [1][2] 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
    [3] 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 - 134
(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.             [14] 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
    [12] 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
    [13] Maryanne's testimony, however, clearly       revealed. State responds any error in excluding

Professor John Barkai, U.H. Law School                                                       Page - 135
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”)
   [15][16][17] 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.
   [18] 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.                 [19] 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,         [20][21]      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
                                                      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             [22] 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 - 136
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 - 137
RULE 609.1    EVIDENCE                                    OF           BIAS,

  (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

Professor John Barkai, U.H. Law School                                  Page - 138
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 - 139
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 - 140
    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 - 141
                                        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
 (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,
 (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 - 142
                                       FEDERAL RULE 613
                                PRIOR STATEMENTS OF WITNESSES
     (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
     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
     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
   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 - 143
                 INTRINSIC and EXTRINSIC IMPEACHMENT: RULES 608, 609, 609.1, 613
                              TYPE            INTRINSIC           EXTRINSIC                   FOUNDATION
                                                                                          Federal     Hawaii
       BIAS (partiality)
                                             CHARACTER ISSUES:
       CONVICTIONS R 609
       PRIOR BAD ACTS                                                                                 608(b)
       (of untruthfulness)
       R 608(b)


          INTRINSIC IMPEACHMENT:                                 FRE 613(b) Foundation:
          EXTRINSIC IMPEACHMENT:                                 HRE 613(b) Foundation:

Professor John Barkai, U.H. Law School                      Page - 144
                                                     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
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 - 145
                           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
        (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 - 146
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
       attorney for Cute-Rate:
       a.     Impeach Bier from the report, assuming Bier testified on direct exam: “I saw

Professor John Barkai, U.H. Law School                                              Page - 147
              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 - 148
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

Professor John Barkai, U.H. Law School                                               Page - 149
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

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

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 - 150
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.
(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
(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

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
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.”

Professor John Barkai, U.H. Law School                                                             Page - 151
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,
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

Professor John Barkai, U.H. Law School                                                            Page - 152
(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.


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[5][a] (Joseph M.

Professor John Barkai, U.H. Law School                                                               Page - 153
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 - 154

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