EVIDENCE (LAW 543) Fall 2017

HANDOUT # 5

CASES & PROBLEMS:

TOPICS:

Character & Habit

Other Relevance Issues
Lay & Expert Opinion
Privileges
Presumptions
Judicial Notice

Professor John Barkai

William S. Richardson School of Law
University of Hawaii at Manoa
[email protected]
http://www2.hawaii.edu/~barkai/L543.html

Cases are reprinted from Westlaw with permission.

Professor John Barkai, U.H. Law School - Evidence Page - 1

CHARACTER EVIDENCE......................................................................................4
MICHELSON v. UNITED STATES, 335 U.S. 469 (1948)......................................5
MEYER v. CITY AND COUNTY 69 Haw. 8, 731 P.2d 149 (1986)...................... 7
STATE V. KEKONA, 120 Haw. 420, 209 P.3d 1234 (2009) R404(a)........................................ 8
CHARACTER EVIDENCE PROBLEMS 1.......................................................... 10
STATE v. CASTRO 69 Haw. 633, 756 P.2d 1033 (1988).................................... 12
STATE v. STEGER 114 Haw.162, 158 P.3d 280 (2006).......................................15
Application of R404(b) in Hawaii .......................................................................... 16
STATE v. POND 118 Haw. 452, 193 P.3d 368 (2008) HRE 404(b) .....................................17
STATE v. FETELEE, 117 Haw.53, 175 P.3d 709 (2008).................................18
CHARACTER EVIDENCE PROBLEMS 2.......................................................... 21

OTHER RELEVANCE ISSUES.............................................................................22

(deleted)..............................................................................................................23-24
RULE 412 SEXUAL ASSAULT (side-by-side).................................................... 25
STATE v. CALBERO, 71 Haw. 115, 785 P.2d 157 (1989)................................... 27
STATE v. GRIFFIN, 126 Haw.40, 266 P.3d 448 (2011) ...................................... 30
SEXUAL ASSAULT PROBLEMS....................................................................... 35

HABIT
STATE v. OKUDA, 71 Haw. 434, 795 P.2d 1 (1990)........................................... 36
HABIT PROBLEMS.............................................................................................. 38

SUBSEQUENT REMEDIAL MEASURES

STATE v. GANO, 92 Haw. 161, 988 P.2d 1153 (1999) ........................................39
STATE v. LEALAO, 126 Haw.460, 272 P.3d 1227 (2012) ............................... 40
RELEVANCY 407 - 411 PROBLEMS.................................................................. 44

OPINIONS - LAY & EXPERT...............................................................................45

(Deleted).............................................................................................................46-47
EXPERT OPINIONS (side-by-side FRE v. HRE)..................................................48
Take Away Points from Federal and Hawaii Expert Cases.....................................50
DAUBERT v. MERRELL DOW PHARMACEUTICALS, 509 U.S. 579 (1993).............52

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GENERAL ELECTRIC COMPANY v. JOINER 118 S.Ct. 512 (1997)................53
STATE v. MONTALBO, 73 Haw. 130, 828 P.2d 1274.........................................54
TAKAYAMA v. KAISER, 82 Haw. 486, 923 P.2d 903 (1996).............................56
STATE V. DELEON, 319 P.3d 382, 131 Haw. 463 (2014)...................................57
TABIEROS v. CLARK, 85 Haw. 336, 944 P.2d 1279 (1997) ...............................58
SHOULD EXPERTS BE CALLED “EXPERTS”? ..............................................62
OPINIONS AND EXPERT TESTIMONY PROBLEMS (TRUE/FALSE)...........64
EXPERT WITNESS PROBLEMS - TRANSCRIPT..............................................65

PRIVILEGES..........................................................................................................66
SWIDLER & BERLIN & HAMILTON v. U.S......................................................67
TRAMMEL v. UNITED STATES, 445 U.S. 40 (1980).........................................67
UPJOHN COMPANY v. U.S., 449 U.S. 383; 101 S.Ct. 677 (1981)......................67
STATE v. LEVI 67 Haw. 247, 686 P.2d 9 (1984) HRE 505 .................................68
STATE v. CULKIN, 97 Haw.206, 35 P.3d 233 (2001) HRE 513..........................68
STATE v. PESETI, 101 Haw. 172, 65 P.3d 119 (2003)........................................69
STATE v. PADEKEN, Unpublished opinion, 121 Hawai'i 541....................................71
PRIVILEGE PROBLEMS......................................................................................72

PRESUMPTIONS ..................................................................................................76
PRESUMPTION PROBLEMS...............................................................................77

JUDICIAL NOTICE................................................................................................79
STATE v. VALLEJO, 9 Haw.App. 73, 823 P.2d 154 (1992).................................80
JUDICIAL NOTICE PROBLEMS.........................................................................81

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 CHARACTER
EVIDENCE
Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook

R404(a)
Under Rule 404(a)(2), the accused may offer evidence of the alleged victim's character in the form of
reputation or opinion testimony but most jurisdiction would exclude specific acts evidence. However,
Hawaii allows specific act evidence, see State v. Basque

R405. Character in issue versus character used circumstantially. A person's character may be relevant in
either of two ways:
(i) Character in issue. A trait of the person's character may be, in itself, an ultimate issue
in the case under the governing substantive law ("an element of a charge, claim, or
defense"). This relatively rare situation is known as "character in issue." The most
important example of character in issue in practice arises in the so-called "negligent entrust-
ment" case. If plaintiff contends that defendant was negligent in entrusting a dangerous
instrumentality to a particular servant, the trait of incompetence of the servant to handle the
instrumentality safely is an element of the claim.
(ii) Character used circumstantially (character to prove conduct). A trait of the person's
character, though not an element of a charge, claim, or defense, may be logically relevant
for the circumstantial inference that the person acted in a particular way on a particular
occasion. For example, it is not an element of a charge of murder that the defendant is a
violent person. But his violent or peaceable disposition would be logically relevant to
whether he committed the murder, because a violent man is at least somewhat more likely
to commit a murder than a peaceable man.

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

Q. Do you know the defendant Michelson?

A. Yes.

Q. How long do you know Mr. Michelson?

A. About 30 years.

Q. Do you know other people who know him?

A. Yes.

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

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

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

These are representative of answers by three witnesses; two others replied, in substance, that they never had
heard anything against Michelson.
On cross-examination, four of the witnesses were asked, in substance, this question: 'Did you ever hear that Mr.
Michelson (20 years earlier) was convicted of a violation of the trademark law in New York City in regard to
watches?' This referred to the twenty-year-old conviction about which defendant himself had testified on direct
examination. Two of them had heard of it and two had not.

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

'Did you ever hear that (27 years ago), the defendant, Solomon Michelson, was arrested for receiving stolen
goods?'

None of the witnesses appears to have heard of this.

The trial court asked counsel for the prosecution, out of presence of the jury, 'Is it a fact according to the best
information in your possession that Michelson was arrested for receiving stolen goods?' Counsel replied that it was,
and to support his good faith exhibited a paper record which defendant's counsel did not challenge.
The judge also on three occasions warned the jury, in terms that are not criticized, of the limited purpose for
which this evidence was received. [JB: R 105 instruction]
***
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the
prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt.
***

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

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

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

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MEYER v. CITY AND COUNTY OF HONOLULU
69 Haw. 8, 731 P.2d 149 (1986)

PADGETT, Justice.

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

[Before the HRE took effect] this court stated in Feliciano,: [W]here in a civil
action for assault there is an issue as to who committed the first act of aggression,
evidence of the good or bad reputation of both plaintiff and defendant for
peacefulness is also admissible.... [T]here is recognized a special need to know the
dispositions of the parties so as to judge their probable acts.

The ICA held that the ruling just quoted in Feliciano was abrogated by the
adoption of HRE 404, so that character evidence was inadmissible in a civil assault
case where the question was who committed the first act of aggression...

While it is true that character evidence is more likely to become an issue in a

criminal than a civil case, we think the ICA construed the terms "accused" and
"prosecution" too narrowly and that Feliciano, supra, is still good law.

.... we disagree with the ICA.

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

Affirmed in part, and reversed in part and remanded ....

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STATE v. KEKONA, 120 Hawai'i 420, 209 P.3d 1234 (2009) ICA opinion
HRE 404(a) – type of evidence
- convicted of attempted murder. The ICA held that:
(1) evidence of victim's prior abuses of defendant's current girlfriend was relevant and
admissible;
(2) defendant's failure to provide reasonable notice in advance of trial of the evidence of the
prior abuse did not preclude defendant from introducing that evidence;…
***
Kekona contends that: (1) the circuit court erred when it granted the motion in limine filed by
Plaintiff-Appellee State of Hawai‘i (State or prosecution) to prohibit him from introducing
evidence of alleged acts of prior physical abuse of Kekona's girlfriend, Tammy Antonio
(Antonio), by Sargent Ah Loo (Ah Loo), with whom Antonio had three children (motion in limine);

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

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

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

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

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

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

In State v. Basque, 66 Haw. 510, 511, 666 P.2d 599, 601 (1983), the State filed a motion in
limine to preclude the defendant from arguing to the jury or introducing into evidence the
criminal record of the deceased victim. The defendant maintained that “such evidence was
admissible to show who was the aggressor in the incident, a critical aspect [of his] claim that he
Professor John Barkai, U.H. Law School - Evidence Page - 8
acted in self-defense.” After balancing the State's interests against those of the defendant, the
trial court granted the motion, holding that jurors might place too much emphasis on the
deceased's criminal record.

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

… it is evident that a factual question existed as to who was the aggressor in this case. ....

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

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

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

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

During the proceedings below, the State argued that its motion in limine should be granted
because Kekona had failed to comply with HRE Rule 404(b) and provide reasonable notice in
advance of trial of the date, location, and general nature of the evidence of Ah Loo's prior abuse
of Antonio that Kekona intended to introduce into evidence at trial. … the purpose of the notice
required by HRE Rule 404(b)“is to reduce surprise and promote early resolution of admissibility
questions.” We also adopted the case-by-case approach for assessing the reasonableness of
the notice required by HRE.

… the State, by seeking to preclude such evidence from being offered at trial, had notice that
Kekona intended to support his defense with evidence of Ah Loo's prior abuse of Antonio…In
light of the foregoing discussion, we vacate the judgment and remand for a new trial.

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CHARACTER EVIDENCE PROBLEMS 1

1. Tort suit for damages in an automobile accident. Can plaintiff call a witness who will testify that
the defendant is known to be a careless driver?

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

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

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

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

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

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

(c) xxx

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

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

On cross-examination the prosecution asks Jim Turbin the following questions:

(f) You heard, haven't you, that Big Ed was given a commendation by the police department in
May for breaking up a fight at a basketball game?

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

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

5. On rebuttal, the prosecution again calls Mr. White to testify as follows:

(1) I have known Big Ed for five years at work and at home. I know him as a peaceful man.

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

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

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

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

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

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

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

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

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

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

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

Professor John Barkai, U.H. Law School - Evidence Page - 12

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

FN6. The defendant pounded the table and screamed at Dr. Hall. ...The Defendant: I'm tired of this
bullshit, man. Humiliate, I fucking hurt her, man. I didn't fucking want to humiliate her. And the fucking
first blow was to her neck you son of a bitch.

FN7... Castro allegedly threatened Dr. Hall.

him. Hall said Castro leaned towards him, glared and mumbled something. Although Castro's actual
II.
A dispositive issue on appeal is whether the trial court abused its discretion in allowing the jury to
hear evidence of the defendant's prior acts of violence and aggression directed at the complaining
witness.
***
The framers of the rule recognized that "[c]haracter evidence is of slight probative value and may be
very prejudicial." Haw.R.Evid. 404 Commentary (quoting Federal Rules of Evidence (Fed.R.Evid.) 404,
Advisory Committee's Note). For "[i]t tends to distract the trier of fact from the main question of what
actually happened on the particular occasion." Id. And "[i]t ... permits the trier ... to reward the good man
and to punish the bad man because of their respective characters despite what the evidence in the case
shows actually happened." Id. Haw.R.Evid. 404(b) thus reiterates the common law rule "that the
prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is
introduced for some purpose other than to suggest that because the defendant is a person of criminal
character, it is more probable that he committed the crime for which he is on trial." ...
Yet even when the evidence of other crimes, wrongs or acts tends to establish a fact of consequence
to the determination of the case, the trial court is still obliged to exclude the evidence "if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence." Haw.R.Evid. 403. For "the use of the word 'may' in [Haw.R.Evid.] 404(b) was 'not intended to
confer any arbitrary discretion on the trial judge' but was rather designed to trigger the Rule 403 balance."
B.
Evidence of Michael Castro's earlier acts of violence and aggression was admitted on grounds that it
was probative of several matters of consequence in the determination of the case and the probative value
substantially outweighed the danger of unfair prejudice. The decision to allow the jury to hear Ms.
Harkin's account of Castro's prior conduct, in our view, amounted to an abuse of discretion.
As we observed, when evidence of other crimes, wrongs, and acts is offered by the prosecution, the
problem for the trial court is one "of classifying and then balancing[, if necessary]." E.W. Cleary, supra. If
its purpose is only "to show some propensity to commit the crime at trial, there is no room for ad hoc
balancing. The evidence is then unequivocally inadmissible [.]" Id. If it is probative of any other fact of
consequence in the determination of the case, the court must then consider whether the prejudicial
impact of the evidence would be substantially greater than its probative worth. And, [i]n deciding whether
the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a
variety of matters must be considered, including the strength of the evidence as to the commission of the
other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes,
the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably
will rouse the jury to overmastering hostility.

Professor John Barkai, U.H. Law School - Evidence Page - 13

 Here, the trial court stated the other crimes evidence was being admitted because it was relevant in
the establishment of intent, preparation, plan, knowledge, and modus operandi and the probative value
was much greater than the prejudicial impact. Arguably, the evidence of prior crimes, wrongs, and acts
helped to prove the defendant's conduct was intentional. Yet, the introduction of such evidence can
hardly be justified on the basis of need or the inefficacy of alternative proof. For there was much more
from which an inference of intentional conduct could be drawn in the evidence of the offense for which the
defendant was being tried. There was even less justification to deem the evidence in question relevant
on grounds that it showed preparation, plan, knowledge, and modus operandi.
"Preparation" seldom is an ultimate issue in a criminal case. It often serves to establish identity.
"For example, evidence that a car was stolen by the defendant may serve to identify him as the
perpetrator of a subsequent robbery in which the car was used for escape." But the identity of the
assailant was not disputed here, and we discern no other basis to consider the evidence admissible under
the rubric of "preparation."
"With the possible exception of prosecutions for conspiracy, plan or design is not an element of the
offense; therefore, evidence that shows a plan must be relevant to some ultimate issue in the case." Like
evidence of preparation, proof of the existence of a plan often serves "to identify the perpetrators of the
crime." But we fail to see how such proof was of consequence to the determination of the case at hand.
The use of other crimes evidence is also permissible to show the act in question was performed with
guilty knowledge. Michael Castro, however, did not claim the crime for which he was being tried was
committed without such knowledge. Thus, the trial court's ruling that the evidence could be admitted
because it established knowledge does not pass muster too.
Where "the characteristics and methodology of the prior crime or act [are] so strikingly similar to
those of the crime or act being litigated as to support the inference that both were the handiwork of the
very same person [,]" evidence of the prior crime or act may be admitted. Haw.R.Evid. 404 Commentary.
Still, the identity of the perpetrator of the crimes was not denied, and the admission of the other crimes
evidence as proof of modus operandi cannot be justified here.
We therefore would have to say the incremental probative value of the evidence in question was not
great. The trial court's allowance on the prosecution's case-in-chief of evidence likely "to weigh too much
with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a
fair opportunity to defend against a particular charge[,]" Michelson v. United States, 335 U.S. 469 (1948),
was an abuse of discretion. On balance, the potential for unfair prejudice being generated by the
evidence was far greater than its value in establishing facts of consequence to the determination of the
case.
***
The judgment of conviction is vacated and the case is remanded for a new trial.

Professor John Barkai, U.H. Law School - Evidence Page - 14

State v. Steger 114 Hawai'i 162, 158 P.3d 280 (2006)
R 404(b) factors

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

- the strength of the evidence as to the commission of the other bad acts,

- the similarities between the [other] bad acts [and the charged crime],

- the time that has elapsed between the [other] bad acts [and the charged crime],

- the need for the evidence,

- the efficacy of alternate proof,

- and the degree to which the evidence will probably rouse the jury to overmastering
hostility....

Professor John Barkai, U.H. Law School - Evidence Page - 15

 Application of R404(b) in Hawaii

State v. Steger, 114 Hawaii 162, 173, 158 P.3d 280, 291 (App. 2006), cert. denied, 157
P.3d 534 (2007) (prior drug transactions rebutted accused’s disclaimer of knowing
possession of drugs seized from apartment he shared with two other people); State v.
Lioen, 106 Hawaii 123, 133, 102 P.3d 367, 377 (App. 2004) (prior DUI with license
suspension showed knowledge or recklessness regarding current suspension status,
which was an element of the charged DUI offense); State v. Bermisa, 104 Hawaii 387,
393, 90 P.3d 1256, 1262 (App. 2004) (prior nursing home violations were relevant to
show recklessness and to rebut mistake defense of nursing home operator charged with
manslaughter); State v. Torres, 85 Hawaii 417, 945 P.2d 849 (App. 1997) (defendant,
charged with digital penetration of the vagina of his nine-year-old niece while bathing
her, claimed “no bad intentions” and thereby opened door to evidence of his prior lust for
her); State v. Thompson, 1 Haw. App. 49, 61, 613 P.2d 908, 909 (1980) (defendant
contested intent to convert payee’s check and thereby opened door to his prior forgery
and conversion under similar circumstances). Compare State v. Fetelee, 117 Hawaii 53,
83–84, 175 P.3d 709, 739–40 (2008) (other crime was “separate and distinct” and
lacked similarity).

Other crimes proving matters not listed: Costales v. Rosete, 133 Hawaii 453, 331 P.3d
431 (2014) (other bad acts against youth correction facility wards placed defendant State
of Hawaii on notice); State v. Cabrera, 90 Hawaii 359, 978 P.2d 797 (1999) (store
security guards’ testimony that they commenced surveillance of defendant because they
“recognized him” did not offend rule 404); State v. Reyes, 66 Haw. 613, 670 P.2d 1282
(1983) (two prior escapes rebutted defense of necessity for charged escape); State v.
Morishige, 65 Haw. 354, 364, 652 P.2d 1119, 1127 (1982) (defendant’s entire criminal
history revealed an antisocial personality and refuted insanity defense claim that
charged assault was the product of an acute schizoid psychosis); State v. Iaukea, 56
Haw. 343, 537 P.2d 724 (1975) (sexual assault victim’s awareness of defendant’s
previous assaults and pending rape case established forcible compulsion and rebutted
consent); State v. Locken, 134 Hawaii 376, 341 P.3d 1176 (App. 2014) (prior incident
where accused tried to provoke a fight supplied context and explained remarks made by
assault victim to accused); State v. Kazanas, 134 Hawaii 117, 336 P.3d 217 (App.
2014), cert. accepted, 2015 Haw. LEXIS 46 (Feb. 23, 2015) (prior assaults rebutted
accused’s claim of physical inability to commit the charged assault);State v. Brooks, 123
Hawaii 456, 470–71, 235 P.3d 1168, 1182–83 (App. 2010) (evidence of prior similar
robberies “counterbalanced” impression accused gave of himself as a peaceful person);
State v. Arakawa, 101 Hawaii 26, 33, 61 P.3d 537, 544 (App. 2002), cert. denied, 63
P.3d 403 (2003) (defendant’s threat that domestic abuse victim would be found “in a
cane field” if she testified against him evidenced his consciousness of guilt); State v.
Shiroma, 9 Haw. App. 578, 855 P.2d 34, cert. denied, 857 P.2d 600 (1993) (defense of
false accusation motivated by anger and jealousy rebutted by proof that victim actually
feared defendant because of his involvement in drug deals); State v. Nizam, 7 Haw.
App. 402, 771 P.2d 899 (1989) (prior acts of violence committed against accused’s wife,
her sister, and her father rebutted EMED defense).

The need factor: State v. Acker, 133 Hawaii 253, 327 P.3d 931 (2014) (“strong need” for the
evidence, which rebutted accused’s claim of coercion by her husband-accomplice).

Professor John Barkai, U.H. Law School - Evidence Page - 16

STATE v. POND, 118 Hawai'i 452, 193 P.3d 368 (2008)
HRE 404(b) – Notice – by Defendant
Background: Defendant was convicted of abuse of family or household member and interference with
reporting an emergency or crime. Defendant appealed. The ICA affirmed. Sup Ct. vacated

Holdings: The Supreme Court, Nakayama, J., held that:

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

The complaining witness, (“Ms. Russell”) [and defendant Pond lived together]. Ms. Russell and Pond
presented conflicting testimony regarding an incident [each claiming the other was the aggressor].

During Ms. Russell's cross-examination, defense counsel asked whether she was smoking marijuana
when Pond came home. The prosecution objected. However, the court ruled “[i]t's a prior bad act”
because the question asks whether “she committed a crime that evening before he came home,” and
thus, required that Pond's counsel give the prosecution HRE Rule 404(b) reasonable notice. The court
thereafter struck the last question and ordered the jury to disregard it….

HRE Rule 404(b) is not per se unconstitutional…

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

B. The Circuit Court Committed Reversible Error By Precluding Pond From Cross-Examining
… Pond was not required to provide the prosecution HRE Rule 404(b) “reasonable notice” prior to cross-
examining Ms. Russell about whether she used marijuana [that night] because he intended to show the
jury that her perception and testimony about the incident were not credible….The circuit court committed
reversible error in limiting the cross-examination of Ms. Russell as to her marijuana use. Pond was
deprived of showing that Ms. Russell's perception of the events was altered through her alleged use of
marijuana…

.. we vacate Pond's conviction.

Concurring and Dissenting Opinion by ACOBA, J. [a very long dissent]

I concur except, respectfully, I believe that the Intermediate Court of Appeals (ICA) did gravely err (1) in
affirming the decision of the Second Circuit to exclude, based on a purported violation of the notice
provision in HRE 404(b); …

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

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

State v. Fetelee, 117 Hawai'i 53, 175 P.3d 709 (2008) Res Gestae
Supreme Court of Hawaii.

[Defendant was convicted ... of attempted murder in the second degree and other crimes.]

Fetelee became involved in three incidents that occurred in and around his apartment building.
Fetelee was charged with attempted murder for repeatedly stabbing one of the males and with
assault for punching and kicking unconscious the other male. One of the focal points of this case
involves the admission of the events that occurred during the apartment incident as part of the res
gestae of the charged offenses.

[The trial court ruled that these other incidents were part of the “res gestae” of the alleged offenses.]

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

[For a variety of reasons…]

We, therefore, conclude that the res gestae doctrine is no longer a legitimate independent ground for
admissibility of evidence in Hawai’i inasmuch as the it is superseded by the adoption of the HRE.
....
In light of the above discussion, we hold that the res gestae doctrine is no longer viable in this
jurisdiction and shall not be used or recognized as an independent basis for the admission of
evidence.

[the court also concluded that the evidence was not admissible under R 404(b)]
....

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

NAKAYAMA, J., concurring separately.

I respectfully concur in the result. Because the legislature intended that the Hawai‘i Rules of
Evidence (“HRE”) serve as “a singular and primary source” for evidentiary rules, I agree that the ICA
gravely erred by acknowledging the res gestae doctrine, inasmuch as the HRE supersedes the
common law res gestae doctrine. However, I write separately to emphasize the value and potential
viability of res gestae evidence, as numerous federal courts that continue to rely on this doctrine
have demonstrated.
....
Accordingly, the res gestae doctrine alongside HRE Rule 404 would not create ambiguity or
uncertainty.

Professor John Barkai, U.H. Law School - Evidence Page - 18

Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook

R404(b) Intent. Eextrinsic offense evidence is admissible to prove intent in drug cases. ("Rule 404(b)
evidence of prior involvement in uncharged drug offenses is indeed relevant and admissible on the issue of
intent) ("Rule 404(b) permits the admission of other crime evidence when a defendant places his intent
at issue in a drug conspiracy case by pleading not guilty"), (dissimilarities between extrinsic offense and
charged offense render extrinsic offense evidence inadmissible).

R404(b) Identity. A common basis for admitting other crimes evidence is to show, via a modus operandi
theory, that the accused was the person who committed the charged crime. This requires a showing that
the crime or its perpetrator and the other crime share distinctive characteristics that evince a
"signature quality."
The modus operandi theory works only if the two crimes share distinctive characteristics.
Example—Inadmissible. the government was erroneously permitted to introduce evidence of two
other bank robberies in which the defendant was allegedly involved. The court of appeals held that
the features common to the crimes were largely generic to "takeover" bank robberies and were
insufficiently distinctive in nature.
Example—Admissible. the court pointed to numerous similarities between two bank robberies that
made them "clearly distinctive from the thousands of other bank robberies committed each year." In
both robberies, the robber donned an orange ski mask before entering, carried a distinctive duffel bag
in one hand and a handgun in the other, vaulted over the teller counter and demanded money,
emptied the teller drawers by himself after putting down the handgun, and used a blue Chevrolet
Cavalier as a getaway car .

The degree of similarity in the characteristics must be substantial, but cannot be reduced to any
formula.
Example—Admissible. evidence of the defendant's participation in another transaction was
admissible where both transactions involved the sale in front of the same house of heroin in
pink balloons and where, in both instances, the defendant used a primer gray Volkswagen bug
and was accompanied by the apparent owner of the car.

R404(b) Motive. Although motive itself is rarely an element of a crime, evidence of motive is often
probative of the accused's guilt. Because it does not involve the use of character to prove conformity, other
crimes evidence may be used to prove motive under Rule 404(b).
The other crimes may themselves provide the motive for committing the charged crime. Proof of
the other crimes may help establish why this particular person is likely to have committed the
crime . Where identity is not an issue, other crimes evidence may tend to prove the defendant's state
of mind.
Example—Admissible. Evidence of the defendant's extensive history of fraudulent conduct
was admissible to prove that the defendant had a very strong motive for silencing the
victim.
Example—Admissible. The government's evidence included testimony that the defendant
owed drug debts at the time of each robbery .
Example—Inadmissible. the court held that although drug use or addiction may provide a
motivation to commit a bank robbery, such evidence is inadmissible unless the government
demonstrates both that the accused had a significant drug habit or addiction and that he did not
have the financial resources to support it.

R404(b) Other purposes—List not exclusive. The purposes listed in Rule 404(b) ...is not
exhaustive. The following are among the other purposes, listed and unlisted, for which other crimes
evidence may be offered:

Professor John Barkai, U.H. Law School - Evidence Page - 19

 · To prove absence of mistake . (defendant's license suspension for over-prescribing percodan
offered to prove his omission of prescription from medical chart was deliberate; but evidence excluded
under Rule 403).
· To demonstrate a common plan or scheme. (previous attempt by defendant to burn down same
building that defendant now charged with burning down); (burglary of garage to obtain equipment used to
commit charged burglary of post office), (stressing that charged and extrinsic offenses must both
constitute steps toward same final goal).
· Where the charged offense and the other crimes are inextricably intertwined (stabbing of
second victim immediately following first).
· To show knowledge. (to prove unlawful possession, evidence that defendant possess )
(evidence of defendant's prior employment at another fraudulent telemarketing company admissible to
prove defendant knew current telemarketing company was engaged in fraudulent practices)
· To show opportunity or capacity. (cohort's six prior drug convictions admissible to rebut prosecu-
tion's theory that cohort was too dumb to plan drug deal without defendant's help).
· To show consciousness of guilt. (threat against witness)
· To support or rebut a claim of entrapment. (allowing defendant to introduce evidence of good
character to prove lack of criminal predisposition); (allowing prosecution to introduce evidence of
defendant's bad character to prove criminal predisposition).

Professor John Barkai, U.H. Law School - Evidence Page - 20

 CHARACTER EVIDENCE PROBLEMS 21

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

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

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

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

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

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

7 Charge: Attempted murder and assault.

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

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

Professor John Barkai, U.H. Law School - Evidence Page - 21

 OTHER
RELEVANCE
ISSUES
RULES 406 - 415

Professor John Barkai, U.H. Law School - Evidence Page - 22

 RULE 412 SEXUAL ASSAULT
HAWAII - Amended 1999 FEDERAL - restyled
RULE 412. SEXUAL OFFENSE AND SEXUAL HARASSMENT CASES; RELEVANCE FRE 412. Sex Offense Cases
OF VICTIM'S PAST BEHAVIOR
(a) Notwithstanding any other provision of law, in a criminal case in which a person is The Victim’s Sexual Behavior or Predisposition
accused of sexual offense, reputation or opinion evidence of the past sexual behavior of an (a) Prohibited Uses. The following evidence is not admissible in a
alleged victim of the sexual offense is not admissible to prove the character of the victim to civil or criminal proceeding involving alleged sexual misconduct:
show action in conformity therewith. (1) evidence offered to prove that a victim engaged in other sexual
(b) Notwithstanding any other provision of law, in a criminal case in which a person is behavior; or
accused of a sexual offense, evidence of an alleged victim's past sexual behavior other than (2) evidence offered to prove a victim’s sexual predisposition.
reputation or opinion evidence is not admissible to prove the character of the victim to show
action in conformity therewith, unless the evidence is:
(b) Exceptions.
(1) Admitted in accordance with subsection (c)(1) and (2) and is constitutionally required to (1) Criminal Cases. The court may admit the following evidence in
be admitted; or a criminal case:
(2) Admitted in accordance with subsection (c) and is evidence of: (A) evidence of specific instances of a victim’s sexual
(A) Past sexual behavior with persons other than the accused, offered by the accused upon behavior, if offered to prove that someone other than the
the issue of whether the accused was or was not, with respect to the alleged victim, the source of defendant was the source of semen, injury, or other
semen or injury; or
physical evidence;
(B) Past sexual behavior with the accused and is offered by the accused upon the issue of
whether the alleged victim consented to the sexual behavior with respect to which sexual assault
(B) evidence of specific instances of a victim’s sexual
is alleged. behavior with respect to the person accused of the sexual
(c)(1)-(3) [Procedures for Admissibility - See Next Page] misconduct, if offered by the defendant to prove consent
(d) In any civil action alleging conduct which constitutes a sexual offense or sexual or if offered by the prosecutor; and
harassment, opinion evidence, reputation evidence, and evidence of specific instances of (C) evidence whose exclusion would violate the defendant’s
plaintiff's sexual conduct, or any of such evidence, is not admissible by the defendant to prove constitutional rights.
consent by the plaintiff or the absence of injury to the plaintiff, unless the injury alleged by the
(2) Civil Cases. In a civil case, the court may admit evidence
plaintiff is in the nature of loss of consortium.
(e) Subsection (d) shall not be applicable to evidence of the plaintiff's sexual conduct with offered to prove a victim’s sexual behavior or sexual
the alleged perpetrator. predisposition if its probative value substantially outweighs the
(f) In a civil action alleging conduct which constitutes a sexual offense or sexual harassment, danger of harm to any victim and of unfair prejudice to any
if the plaintiff introduces evidence, including testimony of a witness, or the plaintiff as a witness party. The court may admit evidence of a victim’s reputation
gives testimony, and the evidence or testimony relates to the plaintiff's sexual conduct, the only if the victim has placed it in controversy.
defendant may cross- examine the witness who gives the testimony and offer relevant evidence (c) Procedure to Determine Admissibility. [See next page]
limited specifically to the rebuttal of the evidence introduced by the plaintiff or given by the

Professor John Barkai, U.H. Law School - Evidence Page - 25

 plaintiff.
(g) Nothing in subsections (d), (e) or (f) shall be construed to make inadmissible evidence
offered to attack the credibility of the plaintiff.
(h) For purposes of this rule, the term "past sexual behavior" means sexual behavior other
than the sexual behavior with respect to which a sexual offense or sexual harassment is alleged.

RULE 412 SEXUAL ASSAULT - Procedures for Admissibility

HAWAII - Amended 1999 FEDERAL
RULE 412. SEXUAL OFFENSE AND SEXUAL HARASSMENT FRE 412. Sex Offense Cases
CASES; RELEVANCE OF VICTIM'S PAST BEHAVIOR
(c) Procedure to Determine Admissibility.
(c)(1) If the person accused of committing a sexual offense intends to offer (1) Motion. If a party intends to offer evidence under Rule 412(b),
under subsection (b) evidence of specific instances of the alleged victim's past the party must:
sexual behavior, the accused shall make a written motion to offer the evidence
(A) file a motion that specifically describes the evidence and states
not later than fifteen days before the date on which the trial in which the
evidence is to be offered is scheduled to begin, except that the court may allow the purpose for which it is to be offered;
the motion to be made at a later date, including during trial, if the court (B) do so at least 14 days before trial unless the court, for good
determines either that the evidence is newly discovered and could not have cause, sets a different time;
been obtained earlier through the exercise of due diligence or that the issue to (C) serve the motion on all parties; and
which the evidence relates has newly arisen in the case. Any motion made (D) notify the victim or, when appropriate, the victim’s guardian or
under this paragraph shall be served on all other parties and on the alleged representative.
victim. (2) Hearing. Before admitting evidence under this rule, the court
(2) The motion described in paragraph (1) shall be accompanied by a must conduct an in camera hearing and give the victim and
written offer of proof. If the court determines that the offer of proof contains parties a right to attend and be heard. Unless the court orders
evidence described in subsection (b), the court shall order a hearing in otherwise, the motion, related materials, and the record of the
chambers to determine if the evidence is admissible. At the hearing, the
hearing must be and remain sealed.
parties may call witnesses, including the alleged victim, and offer relevant
evidence. Notwithstanding subsection (b) of rule 104, if the relevancy of the
evidence that the accused seeks to offer in the trial depends upon the (d) Definition of “Victim.” In this rule, “victim” includes an
fulfillment of a condition of fact, the court, at the hearing in chambers or at a alleged victim.
subsequent hearing in chambers scheduled for this purpose, shall accept and remain under seal unless the court orders otherwise.
evidence on the issue of whether such condition of fact is fulfilled and shall
determine the issue.
(3) If the court determines on the basis of the hearing described in
paragraph (2) that the evidence that the accused seeks to offer is relevant and
that the probative value of the evidence outweighs the danger of unfair
prejudice, the evidence shall be admissible in the trial to the extent an order
made by the court specifies evidence that may be offered and areas with
respect to which the alleged victim may be examined or cross-examined.
Professor John Barkai, U.H. Law School - Evidence Page - 26
Professor John Barkai, U.H. Law School - Evidence Page - 27
STATE v. CALBERO, 71 Haw. 115, 785 P.2d 157 (1989) R 412
This is an appeal ...of sexual assault ... we reverse and remand for a new trial.* * *
In the course of the complaining witness' direct testimony, the following occurred:

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

Q. What did you think?

A. I got scared. I just sat real still.

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

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

At a sidebar conference, the following occurred:

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

After a lengthy discussion and argument, the court ruled as follows:

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

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

Professor John Barkai, U.H. Law School - Evidence Page - 28

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

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

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

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

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

Professor John Barkai, U.H. Law School - Evidence Page - 29

 testimony outweighs any interest the state has in its exclusion. .... Accordingly, we find that the rape
shield law as applied in this case violates appellee's Sixth Amendment right of confrontation. Id. at 36,
487 N.Ed.2d at 562-63.

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

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

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

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

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

... her alleged boasting of her past sexual experiences to appellant (if the jurors believe it occurred),
while parked in his car at the beach could be construed by reasonable jurors to be an invitation to sexual
advances, and, coupled with her failure to object, by either words, or actions, to those advances, to
constitute consent. The issue being tried here was consent, and the complaining witness' statements as to
her past sexual experience, in the context made, clearly were relevant to that issue and, consequently,
should have been admitted.

Reversed and remanded for a new trial.

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

State v. Griffin, 126 Hawai'i 40, 266 P.3d 448 (2011) (ICA affirmed) R 401, 403, 412
… murder … and sexual assault …found a DNA match to Griffin, who was convicted at
trial of only the murder charge.

The ICA held that: …

(3) evidence of victim's prior sexual behavior was not relevant to defendant's defense
that someone else killed victim, and thus was not admissible;
(4) evidence regarding defendant's in-custody telephone conversation with his wife was
relevant, and thus admission of the evidence was not plain error;

Prior to trial, Griffin filed a “Motion for Order Allowing Introduction of HRE 412 Evidence
at Trial.” Griffin argued that evidence of victim's marital affairs and promiscuity was
relevant to demonstrate that Griffin did not cause victim's death, pursuant to HRE Rule
412(b)(2)(A); (2) victim consented to sexual contact with Griffin; and …
…
HRE Rule 412 Evidence
… Griffin contends that the circuit court erred in precluding evidence of decedent's
prior sexual behavior. The evidence Griffin sought to introduce stemmed from Kevin's
[victim‘s husband] statements to police that decedent had extramarital affairs and
oftentimes stayed out late at clubs.

First, Griffin claims that evidence of a victim's prior sexual behavior is constitutionally
required under HRE Rule 412(b)(1),FN11 because it is “relevant, material, and favorable
to [his] defense” insomuch as it “would have established the possibility that persons
other than [Griffin] could have committed the ... offenses.” He also argues that evidence
of decedent's prior sexual behavior was admissible under HRE Rule 412(b)(2)(A)
because it would have shown that he was not the cause of decedent's injuries.

Preliminarily, we note that the use to which Griffin expected to put this prior sexual
behavior evidence is clearly to prove propensity. In his view, evidence that decedent
had previously stayed out late at clubs and engaged in affairs, proved that she stayed
out late and engaged in an affair on the date in question, albeit with someone other than
himself. The question becomes whether Griffin had another, permissible purpose for the
admission of this evidence.

Griffin argued below that he wanted to present this evidence “to raise the defense
where other people could have committed [the instant offenses].” Griffin …does not
adequately explain how evidence of decedent's prior sexual behavior would have shown
that other persons were responsible for decedent's injuries. In other words, Griffin has
not shown that the proffered sexual behavior evidence was relevant. Griffin has not
identified other persons who could have caused decedent's death nor has he shown
how her previous behavior points to someone else as her killer.

In State v. Rabellizsa, 79 Hawai‘i 347, 350, 903 P.2d 43, 46 (1995) , the Hawai‘i

Professor John Barkai, U.H. Law School - Evidence Page - 31

Supreme Court … held that “there must be a nexus between the proffered evidence and
the charged crime” and that third-party motive “must be coupled with substantial
evidence tending to directly connect that person with the actual commission of the
offense.” In this case, Griffin has presented no evidence linking any third person to
decedent's death, let alone substantial evidence. He has also failed to show how
evidence of decedent's prior sexual behavior could sufficiently link identifiable third
persons to her death. In short, Griffin has not demonstrated that decedent's prior sexual
behavior was relevant by establishing that it had a “tendency* to make the existence of
any fact that is of consequence” to his defense that someone else killed the decedent
“more probable or less probable[.]”

…The circuit court was correct in excluding evidence of decedent's prior sexual
behavior.

Evidence of Griffin's Police Station Phone Call

Griffin's third point of appeal concerns the admission of evidence at trial regarding
his in-custody telephone conversation with his wife…Ofr. Lombardi, who stated that he
overheard Griffin, while in custody, speak to Nancy over the telephone. Ofr. Lombardi
testified that Griffin said, “Clean the car, clean the car” with a sense of urgency. [JB:
there was some evidence that the victim might have been killed in the defendant’s car.]
Griffin did not object to Ofr. Lombardi's testimony at trial, which ordinarily waives any
claim that the evidence was improperly admitted. …

Relevance is a low threshold. …

Ofr. Lombardi's statements had at least some bearing on Griffin's consciousness of

guilt and his attempts to conceal evidence linking him to decedent's death, both facts at
issue in the case. Griffin disputed the State's theory that Nancy's actions helped to
prevent police from linking him to decedent's death. Ofr. Lombardi's testimony is
properly viewed as a building block in supporting that theory.

Considering Ofr. Lombardi's testimony as a whole, there is no plain error to be found

in the admission of statements regarding Griffin's telephone conversation while in
custody.

… we affirm Griffin's conviction

Professor John Barkai, U.H. Law School - Evidence Page - 32

 Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
R412 Sex Offense Cases
Rule 412(a)(1) proscribes the use of any evidence offered to prove that an alleged victim engaged in
other sexual behavior. This includes:
• All activities that involve actual physical contact such as sexual intercourse and sexual
contact.
• All activities that imply sexual intercourse or contact. See, e.g., United States v. Galloway, 937
F.2d 542, 548 (10th Cir.1991) (victim's use of contraceptives); United States v. Duran, 886 F.2d 167
(8th Cir.1989) (victim had illegitimate child ).
• Statements that indicate a desire to engage in sexual activity . United States v. Papakee, 573
F.3d 569, 573 (8th Cir. 2009).
• Fantasies or dreams that imply sexual activit y. See Advisory Committee's Note.
• Reputation or opinion evidence about the alleged victim .
The rule only reaches evidence of "other" sexual behavior. The Advisory Committee’s Note indicates
that evidence of sexual behavior intrinsic to the alleged sexual misconduct is not "other" sexual
behavior and may thus be admissible.
Sexual predisposition . Rule 412(a)(2) renders inadmissible ...the alleged victim's mode of dress,
speech and life-style if offered for its sexual connotation .
Prior false claims are not considered sexual behavior ... their admissibility must still be tested under
Rules 404, 405 and 608;

R413 Evidence of Similar Crimes in Sexual Assault Cases

Rule 413 specifically authorizes the admission of evidence of other instances in which the
defendant committed a sexual assault "for its bearing on any matter to which it is relevant." The other
instances need not have resulted in conviction and may have been either prior or subsequent to the
charged offense. United States v. Sioux, 362 F.3d 1241 (9th Cir. 2004). Although the Rule makes no
mention of the quantum of proof required to prove the defendant committed the other sexual assault or
assaults, this will in all likelihood be viewed as a question of conditional relevancy. See Huddleston v.
United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Therefore, the proponent of the
evidence will be required to offer only enough evidence so that a reasonable juror could find that the
defendant committed the other sexual assault. Any other act offered under this rule must constitute an act
of sexual assault or attempted sexual assault. United States v. Blue Bird, 372 F.3d 989, 992 (8th Cir.
2004) (trial court erred in admitting evidence of other acts by defendant that were not sexual acts, sexual
contact or attempts thereof).
Notice requirement. The prosecution must provide the defendant with notice of its intent to
introduce evidence under Rule 413. It must disclose the statements of witnesses or a summary of the
substance of their expected testimony at least fifteen days prior to trial. The court may, for good cause,
allow the prosecution to disclose the evidence at a later time. E.g., United States v. Guidry, 456 F.3d 493,
504-05 (5th Cir. 2006).
Rule 403. Rule 413 clearly favors admissibility of other sexual assault evidence. United States v.
Hawpetoss, 478 F.3d 820, 823-826 (7th Cir. 2007) (discussing factors to be considered). ... But courts
should still exclude such evidence when its probative value is substantially outweighed by the danger of
unfair prejudice. United States v. Mound, 149 F.3d 799, 800 (8th Cir.1998), United States v. Guardia, 135
F.3d 1326, 1329-30 (10th Cir.1998).

R413 Evidence of Similar Crimes in Civil Cases Concerning Sexual Assault or Child Molestation.
Type of evidence admissible. Contrary to the general rule barring evidence of a person's character to
prove that the person acted in conformity with that character, Rule 414 specifically authorizes the
admission of evidence of other instances in which the defendant committed an act of child molestation
"for its bearing on any matter to which it is relevant." The other instances need not have resulted in
Professor John Barkai, U.H. Law School - Evidence Page - 33
conviction. Although the Rule makes no mention of the quantum of proof required to prove the defendant
committed the other sexual assault or assaults, this will in all likelihood be viewed as a question of
conditional relevancy. Therefore, the proponent of the evidence will be required to offer only enough
evidence so that a reasonable juror could find that the defendant committed the other acts of child
molestation.

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

Rule 403. Rule 414 clearly favors admissibility of evidence of other acts of child molestation.
Cases: (upholding admission of twenty-two-year-old conviction), (upholding admission of twenty-five year
old incident). But courts should still exclude such evidence when its probative value is substantially
outweighed by the danger of unfair prejudice. (excluding evidence of molestations that occurred 21-23
years earlier, but admitting evidence of molestations that occurred 16-20 years earlier).

Professor John Barkai, U.H. Law School - Evidence Page - 34

Professor John Barkai, U.H. Law School - Evidence Page - 35
 SEXUAL ASSAULT PROBLEMS - R 412-415
A defendant (D) charged with sexual assault and the victim (V) know each other. At some
time they have sex. V goes to hospital to be treated for injuries and files a rape charge with
the police. The defendant claims it was consensual sex (and therefore no crime). May D
admit the following evidence?

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

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

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

4 – 8 xxx
9. SOURCE OF INJURIES.
Kobe Bryant, the basketball star, was charged with raping a hotel employee in his hotel room. Bryant
conceded that he had sexual intercourse with the complainant, but claimed that the sex was consensual. At a
preliminary hearing, the prosecution called a doctor to testify that he examined the complainant shortly after the
incident and found cuts and abrasions in the vaginal area consistent with forcible sex. On cross-examination,
Bryant's attorney asked whether the injuries the doctor observed were consistent with multiple acts of
consensual intercourse with different men over a short period of time. The prosecution objected, citing the rape
shield law. Are the questions and answers permitted? Merritt)

10. PROSTITUTION
V accused D of rape. D's defense was that he supplied crack cocaine for V and reasonably believed that she
consented to the sexual acts in return. V offered evidence that V was known as a prostitute and that D knew of
V’s reputation, he reasonably believed that she consented to sex with him. Is that evidence admissible?
(Merritt)

11. OTHER ACTS

Wilbur Gabe was on trial for molesting his adopted daughter. The abuse allegedly began when the
adopted daughter was in first grade, and continued until she was fifteen years old. Besides the
testimony of the adopted daughter, at trial the government offered the testimony of another
female relative of Gabe's, who testified that Gabe had molested her 20 years earlier, when she was
seven years old. Is the other relative’s testimony admissible? [Merritt]

Professor John Barkai, U.H. Law School - Evidence Page - 36

 HABIT
STATE v. OKUDA, 71 Haw. 434, 795 P.2d 1 (1990) R 406

Defendant-Appellant Tom Okuda (Defendant) was convicted by a jury of six counts of

Fixing Tickets ...
***
Because of the volume of traffic tickets they handled and due to the passage of time, the
TVB [Traffic Violations Bureau] clerks, managing clerks, and police officers who testified
generally were unable to recall the specifics of the eight tickets pertinent to this case. The
trial court, however, permitted them to testify about the handling of other tickets in general as
evidence of habit and routine practice under Hawaii Rules of Evidence (HRE) Rule 406.

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

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

Applying the foregoing precepts, we hold that the trial court did not err in admitting the
questioned evidence pursuant to HRE Rule 406. Defendant's claim that the testimony dealt
with evidence of prior bad acts precluded by HRE Rule 404(b) is without merit.
We find no error in the trial court's admission of the questioned testimony under HRE
Rule 406.
***
The convictions of six counts of Fixing Tickets are affirmed.

Professor John Barkai, U.H. Law School - Evidence Page - 37

Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook

R406 Habit
Example —Habit established. In United States v. Luttrell, 612 F.2d 396, 397 (8th Cir.1980),
a prosecution for failure to file tax returns for 1974 and 1975, the prosecution was permitted
to introduce evidence of the defendant's failure to file returns for 1971-72 and 1976-78 in order to
establish his "habit" of failing to file.
Example—Habit not established. In Leonard v. Nationwide Mutual Ins. Co., 499 F.3d 419,
442 (5th Cir. 2007) evidence that, over the course of a decade, an insurance agent told five
customers that they should not purchase flood insurance unless they lived in a flood-prone area
did "not remotely qualify or quantify as a habit within the meaning of Rule 406."
Example—Routine practice established. In Mobil Exploration and Producing U.S., Inc. v. Cajun
Const. Serv., Inc., 45 F.3d 96, 100 (5th Cir.1995), evidence regarding the manner in which the
defendant loaded its trucks in over 3400 instances was held sufficient to establish that
routine practice of the defendant.
Example—Routine practice not established. In United States v. West, 22 F.3d 586, 591-92
(5th Cir.1994), the defendant attempted to prove that it was the routine practice of the FDIC to
allow parties to purchase their own discounted notes, held by a failed institution, through third
party straw purchasers. The trial court properly excluded the evidence because the defendant
failed to make a comparison of the number of transactions in which the FDIC allowed straw
purchasers with the number in which it did not.
Routine practice of an organization. Rule 406 substitutes the term "routine practice" for the more
traditional "custom."
Routine practice—Admissible.
· A military base's practice of using base facilities to make authorized retirement gifts.
That an insurance company's agents routinely waived written policy conditions.

Professor John Barkai, U.H. Law School - Evidence Page - 38

 HABIT PROBLEMS

1. Cars driven by Pablo (P) and Dell (D) crash at the four-way stop corner of First and Koa Streets at 6 p.m.,
July 2 last year. Are the following admissible?

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

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

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

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

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

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

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

2. The defendant was arrested and accused of stealing a shirt from Macy’s. A security guard stopped the
defendant as he was leaving Macy’s and carrying a crumpled, old Macy’s shopping bag with a shirt inside,
but no cash register receipt. The defendant claimed at trial that he purchased the shirt but was not given a
sales receipt. The prosecution then attempted to introduce evidence that it was the custom of Liberty
House to give sales receipts with every purchase. Is the evidence admissible? (SF 69)

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

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

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

Professor John Barkai, U.H. Law School - Evidence Page - 39

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

Professor John Barkai, U.H. Law School - Evidence Page - 40

 Rules 407-411
STATE v. GANO
92 Hawai'i 161, 988 P.2d 1153 (1999) HRE 408, 104, & ADOPTIVE ADMISSIONS

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

Not all evidence of civil settlement is excludable under HRE Rule 408... we do not believe that the policy of
protecting compromise offers in civil cases is served by protecting an accused who is attempting to “settle”
or “compromise” criminal charges by “paying off” the complainant. FRE Rule 408, Advisory Committee's
Note (examining the limitations within the final sentence of the identically worded federal rule and noting that
“an effort to “buy off” a ... prosecuting witness in a criminal case is not within the policy of the rule of
exclusion”) Rather, when an accused offers money to a complainant in exchange for “dropping the charges,”
the public policy against compounding crimes prevails.

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

Bowman book says,

Rule 408 applies in civil and criminal proceedings, but its exclusion is limited to evidence of compromise or
attempted compromise of civil liability. It is of no help to an accused whose aunt offered money to a sexual
assault complainant in exchange for dropping charges, holds State v. Gano, 92 Hawaii 161, 168, 988 P.2d
1153, 1160 (1999): “[W]e do not believe that the policy of protecting compromise offers in civil cases is served
by protecting an accused who is attempting to ‘settle’ or ‘compromise’ criminal charges by ‘paying off’ the
complainant.”

Professor John Barkai, U.H. Law School - Evidence Page - 41

State v. Lealao, 126 Hawai'i 460, 272 P.3d 1227 (2012) HSC HRE 409.5 Apology

Defendant was convicted of second degree assault. The ICA affirmed.

The Supreme Court, Acoba, J., held that:
(1) HRE 409.5 applies in civil but not in criminal cases;
(2) error in excluding the “I'm so sorry” portion of defendant's statement to complainant's niece, “I'm
so sorry. I made a big mistake,” was harmless beyond a reasonable doubt;
(3) defendant's statement to niece of complainant was relevant to his asserted defenses of self-
defense and defense of others; and
(4) statement was admissible as an admission by a party-opponent.

We hold that HRE Rule 409.5 which provides that evidence “express[ing] sympathy,
commiseration, or condolences concerning the consequences of an event in which the declarant
was a participant is not admissible to prove liability for any claim[,]” applies in civil but not in
criminal cases. Accordingly, the circuit court of the first circuit (the court) and the Intermediate
Court of Appeals (the ICA) erred in applying HRE Rule 409.5 in this criminal case. Here, Petitioner
remarked “I'm so sorry. I made a big mistake.” The court erred in concluding that the admissibility
of Petitioner's statement regarding having “made a big mistake,” was governed by HRE Rule
409.5. The court also erred in excluding the preceding words, “I'm so sorry,” because those words
explained the context of the “mistake” comment. However, such error was harmless beyond a
reasonable doubt in light of Petitioner's testimony in this case, in which he explained the statement
that he made a big mistake and essentially expressed regret that the incident had taken place.
Moreover, the statement “I'm so sorry. I made a big mistake” was relevant and admissible as a
party admission under HRE Rule 803(a)(1) in this criminal case. Accordingly, … affirmed.

[The statement in issue took place over a year after the incident and approximately a week-and-a-
half before trial.]

The [trial] court ruled at the close of the hearing that only that portion of Petitioner's statement
regarding having “made a big mistake” was admissible. The court appeared to view HRE Rule
409.5 as prohibiting the admission of “[e]vidence of statements or gestures that express sympathy,
commiseration or condolences concerning the consequences of an event in which the declarant
was a participant[,]” but as not requiring the “exclusion of an apology or other statement that
acknowledges or implies fault even though contained in part” of the apology. The court reasoned
that the phrase “I'm so sorry” was an expression of sympathy but that “I made a big mistake” was
not:
…
However, the plain language of HRE Rule 409.5 excludes expressions of sympathy,
commiseration, or condolence “to prove liability,” as opposed to proving a defendant's guilt. …
Also, the commentary notes that HRE Rule 409.5 “resembles measures recently adopted in
several sister states[,]” [citing other state rules limiting the rule to civil cases.]

It is clear from the plain language of HRE Rule 409.5, its commentary, and its legislative history
that the rule does not preclude the admission of expressions of “sympathy, commiseration, or
condolence” in criminal cases, and the court erred in assuming that it did. To the extent the ICA
concluded that it was within the court's discretion to exclude the “I'm so sorry” portion of Petitioner's
statement, but admit the “I made a big mistake” portion, based on the “assum[ption]” that HRE
Rule 409.5 is applicable” in criminal cases, …the ICA gravely erred. … [because the statement

Professor John Barkai, U.H. Law School - Evidence Page - 42

was an admissible party admission, the conviction stands].

Professor John Barkai, U.H. Law School - Evidence Page - 43

Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
R407 Subsequent Remedial Measures
The following are examples of remedial measures.
- A design change. ...Installation of safety features.
- The firing of or disciplinary action against an employee.
- A change in rules or policies.
- A new or modified warning.
Post-accident analyses or studies are generally not considered subsequent remedial measures. But see ,,
(some exceptions) .
(3) Timing of remedial measure. The remedial measure must be taken after the occurrence of the
accident or event that allegedly caused the injury or harm. Thus, a remedial measure taken after a product
was purchased, but before the accident or event that caused the alleged injury does not qualify as a
subsequent remedial measure.
(4) Third party remedial measures. Rule 407 does not bar the admission of remedial measures
taken by third parties. A third party will not be deterred from taking a remedial step by the fear that its
action will later be used as proof in a case to which it is not a party. Such evidence may, however, be
excluded under Rule 403.
Compelled remedial measures. Some courts have held that evidence of a party's own subsequent remedial
measure should be admissible when the party was compelled by the government to take the precautionary act.
The compulsory nature of the action negates the danger that the party would be deterred from taking it by the
fear that it would be used as evidence against it. In re Aircrash in Bali, Indonesia; Chase v. General Motors Corp.,
(recall letter).

R408 Compromise and Offers to Compromise

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

Must be an offer to compromise. Rule 408 protects statements only if they constitute or are made in
pursuit of a compromise. (letter that would have granted plaintiff reinstatement without condition not
protected); (memo prepared before settlement discussions began not protected); The context and
character of the statement or offer must evince some element of concession. (factors considered
include timing of offer, existence of disputed claim, conditional nature of offer, and presence of counsel).

Admissible for other purposes

• As an indicator of the measure of a litigant's success for purposes of determining the appropriate amount of
attorney's fees.
• Where the statement made in the settlement negotiation constitutes the wrongful conduct that is the basis
of the claim. (holding admissible that plaintiff consented, during settlement discussions regarding various

Professor John Barkai, U.H. Law School - Evidence Page - 44

marks, to defendant's use of double horsemen mark where offered to prove estoppel-by-acquiescence
defense to trademark infringement claim).

Use as prior inconsistent statement to impeach. Rule 408 was amended in 2006 to provide that
compromise evidence may not be used for impeachment purposes either as a prior inconsistent statement or
to establish a contradiction. The amendment thus resolves a division among the courts.
Applicability in criminal cases. Prior to the 2006 amendment to Rule 408, courts disagreed ... as to
whether Rule 408 precludes the admission in a criminal case of evidence that an accused settled or
attempted to settle a related civil claim. The amendment struck a compromise. Rule 408 does not bar the
introduction in a criminal case of statements or conduct during compromise negotiations regarding a civil
claim made by a government regulatory, investigative, or enforcement agency. The amendment thus
draws two distinctions. First, it distinguishes between settlement discussions between private parties
and those involving a government regulatory, investigative, or enforcement agency. Conduct and
statements made in settlement discussions between private parties are ordinarily protected from later use
in criminal cases. Second, when addressing compromise negotiations involving a government regulatory,
investigative, or enforcement agency, the rule distinguishes between statements and conduct (such as a
direct admission of fault) and an offer or acceptance of a compromise offer. Only the conduct or statements
may ordinarily be used in a criminal case.

Professor John Barkai, U.H. Law School - Evidence Page - 45

 Relevancy 407 - 411 Problems
1. P slips and falls on the top steps of an apartment's stairway. Two days after the accident, the
landlord replaces the rotted, now broken stairs. Is evidence of the repair admissible at P's trial?
2. P slips and falls on the top steps of an apartment's stairway. The landlord defends by saying
that she is not the owner of the building. Is evidence of the repair admissible?
3. P slips and falls on the top steps of an apartment's stairway. Two days before the accident the
landlord replaced the bottom two stairs. Is evidence of the repair admissible?
4. P sues a small shop owner for a slip and fall on a sidewalk in front of the shop. The law
provides that the shop owner is liable for upkeep on the sidewalk. Can P introduce the fact that
two days after the accident, workers from the City repaired the sidewalk?
5. P is hit by ACME's truck. Two days before the accident, new brakes were ordered for the
truck. Two2 days after the accident, the new brakes were installed on the truck. The driver was
fired one week after the accident. Is testimony about the brakes or the firing admissible?
6. After a lawn-mower got away from the handler and injured a bystander, the manufacture
changed the mower so that it now has a "deadman's switch," which shuts off the motor if the
operator's hands leave the handlebars. The injured bystander sued the lawn-mover manufacturer
claiming the mower had a design defect because it did not have a "deadman's" switch. Is
testimony about the new "deadman's" switch admissible?
7. In above lawn-mower case, could Plaintiff introduce evidence that another manufacturer had
installed a "deadman's" switch on their mower?"
8. Is testimony about adding a "deadman's" switch admissible in problem #6 if an engineer from
the mower company testified at trial that the mower was the "best product on the market with
state-of-the-art equipment."
After an auto accident, are the following statements of Dan, the defendant driver, admissible
against Dan by the plaintiff?
9. Dan: "I'm sorry. I was slow hitting the brakes."
10. Dan: "I am insured for this kind of thing."
11. Dan: "Don't worry about the medical expenses. I'll pay them."
12. P and D are involved in an accident. Immediately after the accident, D goes to P and says,
"My brakes were bad, will you settle it all for $500." P says: "No way!" At trial, can P testify that
D said "My brakes are bad"?
13. Can D be called by P as a Witness at trial and asked "Weren't your brakes bad?"
14. If D goes to visit P in the hospital and says "My brakes were bad, let me pay your $2,000
hospital bill," is the statement admissible?
15. Assume that P2 was also injured in the accident and settled her claim against D before P1's
trial. If P2 testifies for D at trial, is the settlement with D admissible?
16. In plea discussion with the Prosecutor, D says, "I hit that bum V but I'm not going to plead
guilty unless you offer me a better deal than that." There is no better deal offered, so D goes to
trial. Is D's statement to the prosecutor admissible?

Professor John Barkai, U.H. Law School - Evidence Page - 46

17. D is arrested and given Miranda warnings. D talks with the arresting police officer and says,
"I hit that bum V but I'm not going to plead guilty unless you help me get a reduced sentence."
There is no reduced sentence, so D goes to trial. Is D's statement to the officer admissible?
18. D pleads guilty in court and during the plea D says that "I hit V." Later, D is allowed to
withdraw his plea and go to trial. Can the prosecutor use D's in-court statement that he hit B
against him at trial?
19. D pleads guilty to assault. V later sues D in civil suit for damages. Is D's plea admissible in
the civil suit?

Professor John Barkai, U.H. Law School - Evidence Page - 47

 OPINIONS
(LAY & EXPERT)
Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
R701
Illustrative cases. Numerous cases exist in which federal courts have permitted lay witnesses to offer
their opinions.
· An opinion that a truck driver was "in total control" when his truck was struck.
· An opinion that a developer never intended to carry out promises made to purchasers.
· An opinion regarding the amount of lost profits suffered by the witness's business
· An opinion that the person shown in a videotape or bank surveillance photo was the defendant.
· An opinion concerning another person's state of mind or knowledge. (although "lay opinion
testimony regarding mental states is admissible, the court holds inadmissible testimony that defendant
knew his actions were illegal).
· Testimony about drug dealing and drug use. (experts may "translate drug jargon and code
words that might seem entirely innocuous to an untrained jury");
· Testimony providing background information about radical Islam and jihad.

Professor John Barkai, U.H. Law School - Evidence Page - 48

 EXPERT OPINIONS 1
HAWAII FEDERAL Restyled
RULE 701 OPINION TESTIMONY BY LAY WITNESSES. Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the witness' testimony in If a witness is not testifying as an expert, testimony in the form of an
the form of opinions or inferences is limited to those opinions or opinion is limited to one that is:
inferences which are (1) rationally based on the perception of the (a) rationally based on the witness’s perception;
witness, and (2) helpful to a clear understanding of the witness' testimony (b) helpful to clearly understanding the witness’s testimony or to
or the determination of a fact in issue. determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702

RULE 702 TESTIMONY BY EXPERTS. Rule 702. Testimony by Expert Witnesses

If scientific, technical, or other specialized knowledge will assist the A witness who is qualified as an expert by knowledge, skill,
trier of fact to understand the evidence or to determine a fact in issue, a experience, training, or education may testify in the form of an opinion
witness qualified as an expert by knowledge, skill, experience, training, or or otherwise if:
education may testify thereto in the form of an opinion or otherwise. In (a) the expert’s scientific, technical, or other specialized knowledge
determining the issue of assistance to the trier of fact, the court may will help the trier of fact to understand the evidence or to determine a
consider the trustworthiness and validity of the scientific technique or fact in issue;
mode of analysis employed by the proffered expert. (b) the testimony is based on sufficient facts or data;
[this sentence was added to the Hawaii rule in 1992 after Montalbo] (c) the testimony is the product of reliable principles and methods;
and
RULE 702.1 CROSS-EXAMINATION OF EXPERTS. (d) the expert has reliably applied the principles and methods to the
facts of the case.
RULE 703 BASES OF OPINION TESTIMONY BY EXPERTS.
The facts or data in the particular case upon which an expert bases Rule 703. Bases of an Expert’s Opinion Testimony
an opinion or inference may be those perceived by or made known to the An expert may base an opinion on facts or data in the case that the
expert at or before the hearing. If of a type reasonably relied upon by expert has been made aware of or personally observed. If experts in
experts in the particular field in forming opinions or inferences upon the the particular field would reasonably rely on those kinds of facts or
subject, the facts or data need not be admissible in evidence. The court data in forming an opinion on the subject, they need not be
may, however, disallow testimony in the form of an opinion or inference if admissible for the opinion to be admitted. But if the facts or data
the underlying facts or data indicate lack of trustworthiness. would otherwise be inadmissible, the proponent of the opinion may
disclose them to the jury only if their probative value in helping the
[this sentence was added to the language from the federal rule "to clarify jury evaluate the opinion substantially outweighs their prejudicial
the court's discretion to exclude untrustworthy opinions" - says the effect.
commentary]

Professor John Barkai, U.H. Law School - Evidence Page - 48

 EXPERT OPINIONS 2
HAWAII FEDERAL Restyled
Rule 704. Opinion on an Ultimate Issue
RULE 704 OPINION ON ULTIMATE ISSUE. (a) In General — Not Automatically Objectionable. An opinion is
Testimony in the form of an opinion or inference otherwise admissible not objectionable just because it embraces an ultimate issue.
is not objectionable because it embraces an ultimate issue to be decided (b) Exception. In a criminal case, an expert witness must not state an
by the trier of fact. opinion about whether the defendant did or did not have a mental state
or condition that constitutes an element of the crime charged or of a
defense. Those matters are for the trier of fact alone.

Rule 705. Disclosing the Facts or Data Underlying an Expert’s

Opinion
Unless the court orders otherwise, an expert may state an opinion —
and give the reasons for it — without first testifying to the underlying
facts or data. But the expert may be required to disclose those facts or
data on cross-examination.
RULE 705 DISCLOSURE OF FACTS OR DATA UNDERLYING Rule 706. Court-Appointed Expert Witnesses
EXPERT OPINION. (a) Appointment Process. … the court may order the parties to show
The expert may testify in terms of opinion or inference and give the because why expert witnesses should not be appointed and may ask
expert's reasons therefore without disclosing the underlying facts or data the parties to submit nominations. The court may appoint any expert
IF THE UNDERLYING FACTS OR DATA HAVE BEEN DISCLOSED that the parties agree on and any of its own choosing…
IN DISCOVERY PROCEEDINGS. The expert may in any event be (b) Expert’s Role. The court must inform the expert of the expert’s
required to disclose the underlying facts or data on cross-examination. duties. The court may do so in writing and have a copy filed with the
clerk or may do so orally at a conference in which the parties have an
RULE 706 COURT-APPOINTED EXPERTS. opportunity to participate. The expert:
In the exercise of its discretion, the court may authorize disclosure to (1) must advise the parties of any findings the expert makes;
the jury of the fact that a particular expert witness was appointed by the (2) may be deposed by any party;
court. (3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that
called the expert.
(c) Compensation. … entitled to a reasonable compensation,
(d) Disclosing the Appointment to the Jury. The court may
authorize disclosure to the jury …
(e) Parties’ Choice of Their Own Experts. This rule does not limit...

Professor John Barkai, U.H. Law School - Evidence Page - 49

 Take Away Points from Federal and Hawaii Expert Cases
DAUBERT Judge is the "Gatekeeper"
(1993) Relevant and reliable
 Factors 1 Tested
2 Peer review & publication
3 error rate
4 "general acceptance" (small Frye)
FRE 702 imposes a "gatekeeping" role for trial court to admit expert
scientific testimony, including that expert evidence is not only
relevant, but reliable and assists trier of fact. FRE 702 displaced
"general acceptance" to admit expert testimony under Frye v. United
States, 293 F. 1013, 1014 (1923)
KUMHO (1999) Daubert applies not only to scientific testimony but also to technical
and other specialized expert testimony
G.E. v. JOINER review expert issue on abuse of discretion standard
MONTALBO Relevant and reliable
(1992) Slightly different factors than Daubert
FUKUSAKU Less stringent re: reliability determination when dealing with
(1997) technical E.
VLIET (2001) Took Judicial Notice of "general acceptance". Need evidence to be
relevant and reliable.
TAKAYAMA v. Reasonable - (scientific) medical PROBABILITY
KAISER (1996) The standard for expert testimony in Hawaii is "PROBABILITY"
not "CERTAINTY." "Certainty" is used in many other jurisdictions
and in textbook examples
BACHRAN Could use "probability" or "certainty" as the standard
(1970)
CABABAG General SYNDROME testimony by Nanci Kreidman admissible to
(1993) explain "recantation." [Not all judges allow such testimony]
CASTRO (1988)Improper to use EXPERT to support the CREDIBILITY of the adult
victim of attempted murder.
BATANGAN Expert cannot testify that the child was believable
(1990)

Professor John Barkai, U.H. Law School - Evidence Page - 50

 Summaries of Hawaii Speeding Cases
STATE v.Manewa requires the prosecution to prove that the four tests conducted by
MANEWA, the officer were procedures recommended by the manufacturer for the
(2007) purpose of showing that the particular laser gun was in fact operating
properly on [the day of the incident]
STATE v.- admissibility of the laser gun reading
ASSAYE, (2009) - the prosecution must prove that the laser gun's accuracy was tested
according to procedures recommended by the manufacturer
- officer's testimony was insufficient to prove that he was qualified by
training and experience to operate the laser gun
- we hold that an "inadequate foundation was laid to show that the
[speed] measured by the [laser gun] could `be relied on as a
substantive fact[.]'"
- - Assaye's conviction must be reversed
STATE v.-speed check card was admitted into evidence, and the officer was allowed
FITZWATER, to testify that the results of the speed check showed that the speedometer
(2010) was accurate
-we hold that when an entity incorporates records prepared by another
entity into its own records, they are admissible as business records of the
incorporating entity provided that it relies on the records, there are other
indicia of reliability, and the requirements of HRE Rule 803(b)(6) are
otherwise satisfied. The requirements of (1) reliance, and (2) indicia of
reliability do not supplant the provisions of the rule; rather, we view them
as necessary in these circumstances to satisfy the rule's requirement that the
records were "made in the course of a regularly conducted activity" of the
incorporating entity. HRE Rule 803(b)(6);
In the instant case, the record does not clearly establish how the speed
check card was produced.

Professor John Barkai, U.H. Law School - Evidence Page - 51

DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC.,
509 U.S. 579 (1993) EXPERTS
[Infants and their guardians ad litem sued pharmaceutical company to recover for limb reduction
birth defects allegedly sustained as result of mothers' use of antinausea drug, Bendectin, during
pregnancy.

Trial court granted summary judgment for defendant pharmaceutical company, on the basis of
an affidavit of a well-credentialed [defense] expert who stated that he had reviewed all the literature
on Bendectin and human birth defects and no study had found Bendectin to be a substance capable
of causing malformations in fetuses. Testimony from eight experts for the plaintiff was rejected as
not meeting the Frye test - "sufficiently established to have general acceptance in the field to which
it belongs.' The court concluded that plaintiff's evidence did not meet this standard. The Supreme
Court found that a more flexible reliability test is permissible.]

Justice BLACKMUN opinion.

In this case we are called upon to determine the standard for admitting expert scientific testimony in
a federal trial.... We granted certiorari ... in light of sharp divisions among the courts regarding the
proper standard for the admission of expert testimony....

In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the
dominant standard for determining the admissibility of novel scientific evidence at trial....

The Frye test has its origin in a short and citation-free 1923 decision concerning the
admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to
the polygraph machine.
The merits of the Frye test have been much debated, and scholarship on its proper scope and
application is legion. Petitioners' … contend that the Frye test was superseded by the adoption of the
Federal Rules of Evidence. We agree.

... Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to
admissibility.

... In short, the requirement that an expert's testimony pertain to "scientific knowledge"
establishes a standard of evidentiary reliability. ...

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the
outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a
preliminary assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can be applied to the
facts in issue. We are confident that federal judges possess the capacity to undertake this review.
Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.
But some general observations are appropriate.

Professor John Barkai, U.H. Law School - Evidence Page - 52

 Ordinarily, a key question to be answered in determining whether a theory or technique is
scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested....

Another pertinent consideration is whether the theory or technique has been subjected to peer
review and publication....

Additionally, in the case of a particular scientific technique, the court ordinarily should consider
the known or potential rate of error...

... Finally, "general acceptance" can yet have a bearing on the inquiry....

To summarize: "general acceptance" is not a necessary precondition to the admissibility of

scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence --especially Rule
702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a
reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically
valid principles will satisfy those demands. [remanded]

GENERAL ELECTRIC COMPANY v. JOINER

118 S.Ct. 512 (1997) DAUBERT STANDARD

Thus, while the Federal Rules of Evidence allow district courts to admit a somewhat
broader range of scientific testimony than would have been admissible under Frye, they
leave in place the "gatekeeper" role of the trial judge in screening such evidence....

Professor John Barkai, U.H. Law School - Evidence Page - 53

STATE v. MONTALBO, 73 Haw. 130, 828 P.2d 1274 EXPERTS
[JB: This Hawaii case was decided 1 year before Federal court decided Daubert]

…Sexual Assault in the First Degree,... the trial court should have granted his motion in limine to
exclude evidence showing that his DNA [FN1] matched DNA from the scene of the crime... We
affirm.

FN1. Deoxyribonucleic acids are the molecular basis of heredity in many organisms, including man.
These acids are localized in cell nuclei. No two individuals, other than identical twins, have the same
DNA. The FBI as well as several commercial laboratories in the U.S., have imported techniques used
in molecular biology into the forensic context, in order to determine whether DNA left at the scene of
the crime by the crime's perpetrator, matches that of the defendant.

… DNA recovered from the scene of the assault matched DNA taken from appellant....

Appellant argues that this evidence did not meet the standard for admissibility set forth in Frye v.
United States, …

Whether scientific evidence is reliable depends on three factors, the validity of the underlying
principle, the validity of the technique applying that principle, and the proper application of the
technique on the particular occasion. ... The test of admissibility of scientific evidence set forth in Frye
is whether the scientific procedure upon which expert testimony is based, is "sufficiently established to
have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014. Thus
the focus of the test is not the validity of the underlying theory or the procedure itself, but the opinions
of experts within the relevant scientific field. ... At a "rather early stage in the use of scientific
evidence" at trial, most courts adopted the standard in Frye....

Frye has been subject to scathing attacks. It has been criticized as causing unacceptable delays in
the admissibility of reliable evidence due to the lag between the development of new techniques and
their acceptance in the scientific community. …it is ambiguous and difficult to apply.

A number of jurisdictions have abandoned Frye in favor of a more flexible approach that treats
reliability as an aspect of relevancy…

The critical inquiry with respect to expert testimony ... is whether such testimony 'will assist the trier
of fact to understand the evidence or determine a fact in issue....' Rule 702, Haw.R.Evid. Generally, in
order to so assist the jury an expert must base his testimony upon a sound factual foundation; any
inferences or opinions must be the product of an explicable and reliable system of analysis; and such
opinions must add to the common understanding of the jury. See Rule 703, Haw.R.Evid. Id. at 604-05,
645 P.2d at 1336. Therefore, the reliability prong of Kim could include the Frye test, but Kim is not
necessarily limited to general acceptance in the scientific community. Under the reliability prong of
Kim, it is possible that a court could also consider the scientific procedure itself, as well as other
evidence of the procedure's reliability.

Professor John Barkai, U.H. Law School - Evidence Page - 54

 Although general acceptance in the scientific field is highly probative of the reliability of a scientific
procedure, there are other indicators of suitability for admission at trial. [FN5] Examination of either
the principle underlying scientific evidence, or of the procedure itself, may be a sufficient basis upon
which to admit or deny evidence at trial, depending upon the procedure as well as upon the relevance of
the evidence to issues at trial. [FN6] Moreover, admission of scientific evidence is not solely a
question of reliability. See McCormick, supra, s 202 at 604 (question is whether scientific evidence on
balance will assist the jury). A court must consider whether the evidence presented at trial would add
to the common knowledge of the jury, would usurp the jury's function as a finder of fact, or would be
likely to confuse and prejudice the jury.

FN5. The court in Williams delineated the following factors that would be relevant to determine
whether a scientific technique is reliable: (1) the potential rate of error; (2) the existence and
maintenance of standards; (3) the care with which the scientific technique has been employed and
whether it is susceptible to abuse; (4) whether there are analogous relationships with other types of
scientific techniques that are routinely admitted into evidence; and (5) the presence of failsafe
characteristics. Williams, 583 F.2d at 1198-99. In United States v. Jakobetz, 747 F.Supp. 250
(D.Vt.1990) the court listed the following: (1) the expert's qualifications and stature; (2) the
existence of specialized literature; (3) the novelty of the technique and its relationship to more
established areas of scientific analysis; (4) whether the technique has been generally accepted by
experts in the field; (5) the nature and breadth of the inference adduced; (6) the clarity with which
the technique may be explained; (7) the extent to which basic data may be verified by court and
jury; (8) the availability of other experts to evaluate the technique; and (9) the probative
significance of the evidence.

We therefore "adopt" the Frye test of general acceptance in the relevant scientific community under
the reliability prong of the Kim analysis. We hold that a court should weigh general acceptance along
with the other factors listed below in order to determine, under Hawaii Rules of Evidence (HRE) Rules
702 and 703, whether scientific evidence should be admitted at trial. These factors include whether: 1)
the evidence will assist the trier of fact to understand the evidence or to determine a fact in issue; 2) the
evidence will add to the common understanding of the jury; 3) the underlying theory is generally
accepted as valid; 4) the procedures used are generally accepted as reliable if performed properly; 5)
the procedures were applied and conducted properly in the present instance. The court should then
consider whether admitting such evidence will be more probative than prejudicial.
... We take judicial notice that the DNA paradigm is not controversial and is widely accepted in the
relevant scientific community. [JB: remember this when we study judicial notice. Here the Supreme
Court took judicial notice.]

... Affirmed.

Professor John Barkai, U.H. Law School - Evidence Page - 55

 Hawaii Standard for Presenting Expert Testimony
“To a degree of reasonable XXX probability”
TAKAYAMA v. KAISER FOUNDATION HOSPITAL
82 Hawai'i 486, 923 P.2d 903 (1996)

AN EXAMPLE OF PRESENTING EXPERT TESTIMONY

[Patient sued neurosurgeon for medical malpractice, alleging that patient's quadriparetic
condition resulted from defendant's negligence in utilizing sublaminar wiring staging procedure
when patient's spinal canal was severely stenosed. Affirmed.]
***

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

Q. And what is your opinion?

A. I think ...

Q. [By Takayama's counsel] Do you have an opinion to a degree of reasonable medical

probability as to whether Dr. Robinson's version of where he made the laminotomy notches is
correct?
A. Yes, I do.

Q. And what is your opinion?

A. I don't think they were this far laterally or this far out to the side.

Q. And on what do you base that opinion, Dr. Bohlman?

A. I think on the post operative CT scan it looks like the notches are much closer to the spinous
process. I mean, these notches are way off to the side and ...

Professor John Barkai, U.H. Law School - Evidence Page - 56

 State v. DeLeon, 319 P.3d 382, 131 Hawai’i 463 (2014) Supreme Court of Hawai‘i
. (rejecting a requirement of scientific or medical certainty for expert opinion);
- murder in the second degree. ICA reversed as to one and affirmed others
 
Holdings: Recktenwald, C.J., held that trial courts should not require a reasonable degree of
scientific certainty before admitting expert opinions, but may exclude expert testimony based on
speculation or possibility. Opinion of defense expert expressed to a reasonable medical scientific
probability, that victim’s ingestion of cocaine in proximity to his death had an impact on his
behavior was admissible in support of self-defense claim;
  
… the circuit court plainly erred in excluding expert testimony. The defense expert was prepared
to testify that, to a reasonable degree of scientific probability, Powell was under the influence of
cocaine at the time of the shooting. However, the circuit court erroneously required that the
testimony be offered to a reasonable degree of scientific certainty, and accordingly excluded the
testimony. This error was not harmless beyond a reasonable doubt, and thus we vacate
DeLeon’s conviction for second-degree murder and remand for a new trial.
  
Although trial courts may exclude expert testimony that is speculative in nature, expert opinions
need not be based on a “reasonable degree of scientific certainty” in order to be admissible.
 
… in civil cases, that medical opinions must be based on reasonable medical probability.
Miyamoto v. Lum, 104 Hawai‘i 1, 15–16, 84 P.3d 509 (2004).

Because the HRE are patterned on the Federal Rules of Evidence, this court has looked to
federal cases for guidance. At least some federal courts have expressly rejected the proposition
that a “reasonable degree of scientific certainty” is required for the admission of expert testimony.
 
In United States v. Mornan, 413 F.3d 372, 376, 381 (3d Cir.2005), the court said - there is nothing
magical about the phrase, “to a reasonable degree of scientific certainty.” It is not derived from
the language of Rule 702 itself, and this Court has been unable to find any authority to support
the position that questions regarding the expert’s “degree of scientific certainty” categorically
renders expert testimony inadmissible.

At least some state courts appear to use the terms “certainty” and “probability” interchangeably
and favor admissibility of expert testimony under either standard. At least some other states have
expressly rejected the notion that expert testimony must be grounded in reasonable scientific
certainty to be admitted.

In Robinson v. United States, 50 A.3d 508, 514 (D.C.2012), the court stated that “…a particular
expert witness’s degree of certainty in proffering an opinion goes to the weight of the testimony,
not its admissibility, and ‘the weight to be given an expert opinion is for the jury to decide.’ ” The
Court of Appeals viewed the trial court’s ruling as a “question of the basic relevance of the
proffered testimony and whether it would assist the jury in understanding the facts in issue.” The
Court of Appeals stated that the proffered expert testimony “could have lent credence to [the
defendants’] contention that PCP could substantially hinder a witness’s ability to perceive and
remember events many hours later.” The Court of Appeals held, therefore, that excluding the
testimony because the expert could not specifically say how PCP affected the complaining
witness “misapprehended the purpose for which the evidence was offered and ran afoul of our
case law indicating that expert testimony ‘should generally be admitted if it will assist the jury to
understand the facts in issue.’ ”
 
In light of the foregoing authorities, we conclude that trial courts should not require a “reasonable
degree of scientific certainty” before admitting expert opinions.

Professor John Barkai, U.H. Law School - Evidence Page - 57

TABIEROS v. CLARK, 85 Hawai'i 336, 944 P.2d 1279 (1997) HRE 703, 705
These appeals arise out of a lawsuit alleging, inter alia, strict product liability and negligent design
following injuries sustained by Tabieros when he was struck by a large piece of mobile equipment, a
straddle carrier FN1 manufactured by Clark, while he worked at the Sand Island dockyard in the City and
County of Honolulu.

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

Clark contends that the trial court erred:...(3) by allowing, restricting, or excluding expert testimony...

… while working on the loading docks at Pier 52 in the City and County of Honolulu, Tabieros, an
employee of Matson Terminals, Inc. (Terminals), was sitting in a jitney parked on the dockside apron of
the Sand Island container yard. He was seriously injured when a Series 510 straddle carrier struck his
vehicle, crushing both of his legs...

4. Report of the National Ports Council

A documentary report entitled “Equipment Evaluation: The Operation of Clark Van Carriers ” (hereinafter,
“the NPCR”) was published in February 1973 by an organization-based in London, England-denominated
the “National Ports Council.” The NPCR purported to be a study, conducted in the ports of Great Britain,
of various operational, engineering, structural, and ergonomic characteristics (including driver visibility) of
Clark's Series 512, 520, and 521 straddle carriers, the production of which postdated the Series 510
version at issue in this case and which were larger, taller, and otherwise differently configured than the
Series 510. The plaintiffs attempted to introduce the NPCR as substantive evidence at trial on the basis
that it was relevant to whether the Series 510 had been defectively designed and Clark had been placed
on notice thereof. Clark sought to exclude any and all use of the NPCR at trial, contending that the report
constituted inadmissible hearsay, did not involve the Series 510 straddle carrier, was not relevant to the
issue of notice, and was “untrustworthy” on its face. The circuit court, in limine, disallowed the NPCR as
substantive evidence pursuant to HRE 403, but ruled that, “[t]o the extent that a proper foundation is laid
by the proponent, experts may refer to the report in their testimony.”...

a. inadmissibility of the NPCR as substantive evidence

We hold, for two reasons, that the circuit court did not err in excluding the NPCR...

Over Clark's repeated objections, the circuit court did, however, allow reference to the contents of the
NPCR by the plaintiffs' expert witness, Howard Josephs...

HRE 705, however, is silent on its face regarding the question-which the appellate courts of this state
have apparently never addressed-whether otherwise inadmissible evidence, on which an expert is relying
in the formulation of an opinion, may be disclosed in the first instance on direct examination...

Thus, it is not surprising that the case law of other jurisdictions is in general agreement that an expert may
discuss the underlying facts and data upon which he or she is relying on direct examination, even though
hearsay may be involved-at least for the limited purpose of disclosing the basis of his or her opinion...

Professor John Barkai, U.H. Law School - Evidence Page - 58

However, in our judgment[,] the logic underlying Rule 703 ... compels the conclusion that an expert should
be allowed to reveal the contents of materials upon which he reasonably relies in order to explain the
basis of his opinion.”)...

In our view, the reasoning of the foregoing authority is cogent and persuasive. Accordingly, we hold that
HRE 703 and 705 do not foreclose an expert witness from revealing, in the course of direct examination,
the contents of the materials upon which he or she has reasonably relied-hearsay though they may be-in
order to explain the basis of his or her opinion, provided, of course, that (1) the expert has actually relied
on the material as a basis of the opinion, (2) the materials are “of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject, ” and (3) the materials do
not otherwise “indicate lack of trustworthiness.”

In the present case, however, we do not believe that Josephs's testimony satisfied the foregoing
preconditions to disclosure of the contents of the NPCR within the context of explaining, on direct
examination, the bases of his expert opinions. First, the record indicates that, in all likelihood, Josephs did
not actually rely on the NPCR as a factual basis of his opinions. Prior to being offered as an expert in
safety engineering, human factors, the design of the Series 510 straddle carrier, remedial measures, and
related matters, the plaintiffs' counsel elicited an enumeration from Josephs of the factual bases of his
opinions regarding “what the cause of the accident was” and whether remedial steps could have been
taken to avoid it. Although he listed, among other things, (1) an examination of the straddle carrier
involved in Tabieros's accident, (2) the deposition testimony of the eyewitnesses to the accident, (3) the
deposition testimony of Clark's designer of the Series 510 straddle carrier, (4) the deposition testimony of
the representative of Navigation, who promulgated the design specifications for the vehicle, (5)
“classification records” relating to the history of the Series 510, (6) Matson's records regarding the
particular straddle carrier at issue, (7) documents relating to “other straddle carriers,” and (8) applicable
safety standards, Josephs made no allusion to the NPCR. On cross-examination by Clark's counsel,
Josephs first testified that he could not presently recall where he had first obtained the NPCR; once his
recollection was refreshed, however, he acknowledged that he had first received the report from
Tabieros's counsel.

Later in his testimony, when Tabieros's counsel inquired whether the NPCR was one of the bases of his
expert opinion, Josephs answered in the affirmative. Nevertheless, he testified immediately thereafter
only that the NPCR was “relevant” to his opinions, that it would be “valuable” and “of interest” to an
engineer or manufacturer designing a straddle carrier, and that it “supported” his opinions. In the latter
respect, Josephs read repeatedly from the NPCR and explicated its data and conclusions without ever
indicating in what manner the reports' contents formed a basis of his opinions or in what way he otherwise
relied on it.

Second, even if Josephs actually relied in some way on the NPCR as a factual basis of his opinions, it
was still necessary that the NPCR contain “facts or data ... of a type reasonably relied upon by experts in
the [engineering] field in forming opinions or inferences upon the subject” of the Series 510 straddle
carrier in order to satisfy the criteria prescribed in HRE 703. FN36 In our view, the record is grossly deficient
in this regard.

FN36. It is noteworthy that, although Josephs responded, “Yes,” when asked if the NPCR constituted one
of the bases of his opinion, he never testified that the NPCR contained the type of material upon which
engineers would reasonably rely.

Professor John Barkai, U.H. Law School - Evidence Page - 59

On cross-examination by Clark's counsel, Josephs acknowledged that he had never studied or inspected
the Series 512, 520, or 521 straddle carriers, which were the sole subjects of the NPCR. He did not know
the relative heights of the various models as compared to the straddle carrier involved in Tabieros's
accident. He was unaware of the means by which the data appearing in the NPCR was collected, the
credentials or qualifications of whoever was doing the collecting, or the number or identity of the NPCR's
authors. In fact, Josephs indicated that he had essentially accepted on blind faith that data collected by a
“quasi-governmental agency” would be reliable. Such uncritical reliance is hardly a hallmark of the
scientific method.

It is patently obvious from a review of the trial transcript that Josephs's testimony regarding the NPCR
served primarily as a conduit to publish its findings and conclusions, which had already been ruled
inadmissible as substantive evidence pursuant to HRE 403, to the jury and to bolster the credibility of
Josephs's opinions. Many of the questions posed to Josephs regarding the NPCR by the plaintiffs'
counsel, as well as his responses to them, had little or nothing to do with Josephs's area of expertise. For
example, Josephs was questioned about (1) the cost of obtaining a copy of the NPCR and its availability
to others, in an attempt to establish that Clark had, in fact, received notice of its existence and contents,
(2) the NPCR's length and governmental authorship, (3) Clark's “role in providing resources for the
report,” and (4) Josephs's beliefs as to whether Clark had destroyed documents.

Moreover, the plaintiffs' counsel prominently displayed the NPCR's principal findings and salient contents
to the jury through blow-up exhibits mounted on eight story boards. In this connection, the plaintiffs'
counsel expressed his belief that the portions of the NPCR that Josephs read to the jury could be used for
any purpose. That the circuit court shared his view is reflected by the following exchange:

[Clark's counsel]: I object to publication of the report.

THE COURT: Any response?

[Plaintiffs' counsel]: The response is that the publication of other material which the experts have relied
on, but is not in evidence, has been allowed and these are-

THE COURT: I will overrule and permit the demonstrative proof.

[Clark's counsel]: This is improper use of a treatis [sic] in that Mr. Josephs is actually testifying to what the
material contains. This goes far beyond what an expert is able to do with respect to references.

THE COURT: Under 70-

[Plaintiffs' counsel]: 703, a report replied [sic: actually “relied”] upon by an expert can be used in any
fashion.

THE COURT: I will overrule the objection and confirm my ruling.

Professor John Barkai, U.H. Law School - Evidence Page - 60

light of our holding regarding the parameters of HRE 703 and 705, it is apparent that the circuit court's
broad view of the permissible uses to which inadmissible evidence may be put by an expert witness was
erroneous. While it is perfectly proper for experts to discuss the data upon which they have actually and
reasonably relied in forming their opinions, a trial court does not have the unfettered discretion to allow
testimony designed fully to disclose the contents of all inadmissible material. As we have indicated, the
reason, pursuant to HRE 703 and 705, for allowing an expert witness to reveal the contents of otherwise
inadmissible evidence during direct examination is not to admit the evidence for its substantive, probative
value, but rather to permit the trier of fact to understand the basis of the expert's opinion in order to
assess the weight and effect to be accorded that opinion. The admissibility of such testimony, however, is
limited by the mandate of HRE 703 that the “underlying facts or data” do not otherwise “indicate lack of
trustworthiness.” Thus, expert testimony revealing inadmissible material for the purpose of either (1)
injecting untrustworthy evidence into the trial in order to lend greater authority to the testifying expert's
opinion or (2) indirectly placing before the jury the purportedly authoritative conclusions of others on the
same subject-not otherwise admissible on some independent ground-is improper.

The need for oversight by the trial court of expert testimony revealing otherwise inadmissible material is
particularly acute when the “underlying facts or data indicate lack of trustworthiness, ” HRE 703, or where
the probative value of the testimony “is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury,” HRE 403. In this case, the NPCR was based on multiple
hearsay, was of undetermined authorship, addressed hundreds of accidents that were substantially
dissimilar to Tabieros's, and contained warnings within its four corners that flagged the questionable
reliability of much of its data. Moreover, prior to Josephs's testimony, the circuit court had already
disallowed the NPCR as substantive evidence, not only pursuant to Clark's motion in limine, but also in
accordance with HRE 403.

Accordingly, because (1) it appears that Josephs did not, in fact, rely on the NPCR in forming his
opinions, (2) even if Josephs did so rely, the record establishes that such reliance would have been
scientifically unreasonable, and (3) the circuit court had already ruled as a matter of law that the NPCR
was less probative than prejudicial, we hold that the circuit court abused its discretion when it permitted
Josephs's testimony regarding the NPCR. Moreover, even had Josephs reasonably relied on it, we hold
that the circuit court was obligated to exercise appropriate restrictive supervision over his testimony, so as
to allow only that necessary to explain to the jury the manner in which the NPCR formed a part of the
basis of his expert opinion.

IV. CONCLUSION

we affirm the circuit court's judgment …and remand for a new trial.

Professor John Barkai, U.H. Law School - Evidence Page - 61

§ 702-5 Should HRE 702 witnesses be called “experts?”
From: Bowman, Hawaii Rules of Evidence Manual

The Advisory Committee’s Note to FRE 702 points out that use of the word “expert” in this rule
“does not … mean that a jury should actually be informed that a qualified witness is testifying as
an ‘expert.’ Indeed,” the Note continues:

there is much to be said for a practice that prohibits the use of the term “expert” by both the
parties and the court at trial. Such a practice “ensures that trial courts do not inadvertently put
their stamp of authority” on a witness’s opinion, and protects against the jury’s being
“overwhelmed by the so-called ‘experts.’ ”

The internal quotes identify material from Richey, Proposals to Eliminate the Prejudicial Effect
of the Use of the Word “Expert” Under the Federal Rules of Evidence in Criminal and Civil Jury
Trials, 154 F.R.D. 537 (1994).

The Richey agenda was adopted by the trial court in State v. Metcalfe, 129 Hawaii 206, 297 P.3d
1062 (2013), and the appeal challenged two elements of that agenda: (1) dispensing with a
formal announcement to the jury that witnesses qualified as experts; and (2) substituting for the
usual jury instruction on expert testimony the following:

During the trial you heard testimony of one or more witnesses who were allowed to give opinion
testimony. Training and experience may make a person qualified to give opinion testimony in a
particular field. The law allows that person to state an opinion about matters in the field. Merely
because such a witness has expressed an opinion does not mean, however, that you must accept
this opinion. It is up to you to decide whether to accept this testimony and how much weight to
give it. You must also decide whether the witness’s opinions were based on sound reason,
judgment and information.

Metcalfe rejects this challenge and holds that the trial court’s qualification procedure and
“opinion testimony” instruction both comported with HRE 702.

The Metcalfe witnesses, a forensic pathologist and a police detective, testified about their
respective qualifications at length before the jury. Both were well qualified “by knowledge, skill,
experience, training, or education,” as required by HRE 702, and Metcalfe so holds. The precise
issue of interest here concerns the propriety of dispensing with the announcement that the
witnesses had been qualified as experts. The court’s holding is succinct: “[N]othing in the HRE
would preclude the trial court from declining to qualify a witness as an expert in front of the jury,
so long as the requisite foundation for the witness’s testimony is established.”

Professor John Barkai, U.H. Law School - Evidence Page - 62

In the absence of a formal statement of expertise or qualification by the court, how shall jurors be
equipped to evaluate “opinion testimony” from witnesses no longer described as “experts?” First,
it seems crucial that qualifications be adduced before the jury, even in cases where Daubert-
Montalbo challenges have been determined with jurors absent. And secondly, we take up the
validity of the court’s charge regarding “opinion testimony.”

The Metcalfe instruction varied from the HAWJIC model jury instruction only in that it
substituted the phrases “witnesses who were allowed to give opinion testimony” and were
“qualified to give opinion testimony” for “experts,” in keeping with the intent to eliminate that
word from the jury trial lexicon. Metcalfe holds that this jury instruction passes muster under
HRE 702 because it supplies “understandable guidelines to assist [jurors] in evaluating expert
testimony” and “accurately state[s] factors for the jury to consider in evaluating expert
testimony.” There was no error here.

How shall trial judges react to the Metcalfe holding and protocol? Chief Justice Recktenwald,
writing for the Metcalfe majority, seems inclined to allow [judges] their choice between the
traditional and Richey procedures. Regarding the latter: “[I]n the future, trial courts adopting this
approach should ensure that such a decision is reflected on the record to facilitate appellate
review.” The Richey procedure minimizes the judicial imprimatur that is occasioned when a
judge refers to a rule 702 witness as an “expert.” And by forbidding even the lawyers for the
parties to employ this term, it seeks to minimize the weight that these “so-called experts” will
throw around in the judge’s courtroom.

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

 OPINIONS AND EXPERT TESTIMONY PROBLEMS (TRUE/FALSE)
_____ 1. A police officer with specialized training may testify that X was at fault in the
accident.
_____ 2. A person may not testify as an expert unless he has prior experience working with the
particular item, matter, or product involved in the litigation.
_____ 3. Testimony by an expert that a particular quantity of drugs was possessed by the
defendant with an intent to distribute violates Rule 704.
_____ 4. xxx
_____ 5. A person with no formal education might still qualify as an expert in a particular field.
_____ 6. A doctor is allowed to disclose the opinion of a consulting physician not otherwise
admitted into evidence relating to the condition of the patient in her testimony to the jury because
such an opinion is reasonably relied upon by an expert in the field.
_____ 7. xxx
_____ 8. xxx
_____ 9. A lay witness may not testify that he "thinks" the man was carrying a gun but is not
100% positive.
_____ 10. General acceptance of an explanative theory still plays a part in the Daubert/Kumho
Rule 702 gatekeeping determination.
_____ 11. A lay witness may testify that a person appeared nervous as she approached the
microphone.
_____12. An expert for the defense may testify as to whether the accused lacked a premeditated
intent to commit a homicide.
_____13. xxx
_____14. The Daubert decision of the Untied States Supreme Court makes the employment of
the Frye standard unconstitutional in state court.
_____15. xxx
(MG: 19-21)

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

 EXPERT WITNESS PROBLEMS - TRANSCRIPT
P sues D (an insurance company) to collect on a fire insurance policy. D refused to pay,
claiming the P set the fire (arson). D calls F (the fire marshal) as a witness. The court has
determined that F is an expert and may give an opinion.
Q:I would like to ask you some questions about factors that you considered when forming your
opinion. What did you do during the investigation?
A:I spoke with FF the fire fighter in charge that night.
Q:What did she tell you?
A:She said the fire spread very rapidly from the time she arrived on the scene at 9 pm.
[objection]
Q:Did she say anything else?
A:She had taken a 911 phone report of the fire from passerby who saw flames from windows on
the 1st, 3rd, and 5th floors. [objection]
Q:What is the significance of the 911 report?
A:It shows 3 separate and non-communicating fires at the same time which is a strong indication
of arson. The recognized authority Jane Byrne says in her book, Fire Investigation, that
separate non-communicating fires indicates arson.
Q:Is the Byrne book a recognized authority?
A:Yes. It’s a bible for us.
Q:Your Honor, I offer the Byrne book into evidence so that the jury can take it into the jury
room and study it. [objection]
Q:What else did you base your opinion upon?
A:Laboratory tests from a fire department arson expert. [objection]
Q:What else did you base your opinion upon?
A:About 10 minutes after I arrived on the scene, a calm person on the street told me that he had
seen a man running out of the building just before the fire started. [objection]
Q:What else did you base your opinion upon?
A:I saw "Tim Torchy," whom the department believes to be a professional arsonist standing
across the street watching the fire. [objection]
CROSS OF THE EXPERT
Q:F, you found evidence of faulty electrical wiring during your investigation of this building
didn't you?
A:Yes.
Q:Faulty wiring could have caused the fire, right?
A:It could have, but I concluded it was arson. [objection]
Q: I refer you to exhibit # 1, the Byrne book. Doesn't it say on page 227 that, "The primary rule of
fire investigation is that you should not reach the conclusion of arson, unless and until you can
rule out all accidental causes."?
A:Yes.

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

 PRIVILEGES
Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
Lawyer-Client Privilege
• A client or the client's lawyer and a lawyer representing another client in a matter of common
interest. This is sometimes referred to as the common interest, "pooled information" or (less
appropriately) "joint defense" privilege.
Example—Privileged. …statements made by a defendant during a meeting attended by the defendant
and his lawyer, a co-defendant and his lawyer, and another codefendant were held to be privileged.
Example—Not privileged. In United States v. Gotti, 771 F.Supp. 535, 545 (E.D.N.Y.1991), the court held
that the attorney-client privilege did not apply to communications between defendants in the absence of
any lawyer. The privilege protects communications to a lawyer representing another client in a matter of
common interest, but not client-to-client communications.

Client defined. A client may be an individual or any kind of entity, including a governmental unit,
corporation, or unincorporated association. E.g., In re County of Erie, 473 F.3d 413 (2d Cir. 2007)
(protecting communications between county attorney and county officials). Town of Norfolk v. United
States Army Corps of Engineers, 968 F.2d 1438, 1457-58 (1st Cir.1992) (protecting communications
between U.S. Attorney and Corps of Engineers). Even if the person or entity does not actually become a
client of the attorney, the privilege attaches to communications made while the potential client was
consulting the lawyer with a view toward obtaining legal services. In re Auclair, 961 F.2d 65, 70 (5th
Cir.1992). Communications made after the attorney has declined employment, however, remain
unprivileged.

A consulting expert employed to help the lawyer in the performance of his legal representation is also
covered by the privilege – cases for accountant; polygrapher.

A limited amount of disclosure outside the circle of lawyer, client, and their representatives may be made
without necessarily destroying confidentiality:
• Disclosure to third persons for the purpose of furthering the rendition of legal services is
permissible. This may include disclosures to a client's spouse, parent, or business partner, or a joint
client. Advisory Committee's Note. See Jenkins v. Bartlett, 487 F.3d 482, 490-91 (7th Cir. 2007) (police
liaison officer present to assist attorney appointed by union to represent police officer), cert. denied, 552
U.S. 1039, 128 S.Ct. 654, 169 L.Ed.2d 510 (2007); In re Auclair, 961 F.2d 65, 69-70 (5th Cir.1992) (joint
client).
• Disclosure to someone who is reasonably necessary for the transmission of the communication,
such as an interpreter, is permissible.

Professor John Barkai, U.H. Law School - Evidence Page - 66

From: Key Evidence Cases 2015 - http://federalevidence.com/key-evidence-cases#W

SWIDLER & BERLIN & HAMILTON v. U.S.

118 S.Ct. 2081 (1998)

The attorney-client privilege survives the death of the holder of the privilege.

Barring use of privileged communications for criminal investigation after the holder died.

TRAMMEL v. UNITED STATES, 445 U.S. 40 (1980)

From: Key Evidence Cases 2015 - http://federalevidence.com/key-evidence-cases#W

Holding "that the witness-spouse alone has a privilege to refuse to testify adversely; the witness
may be neither compelled to testify nor foreclosed from testifying

"Here, petitioner's spouse chose to testify against him. That she did so after a grant of immunity
and assurances of lenient treatment does not render her testimony involuntary."

UPJOHN COMPANY v. U.S., 449 U.S. 383; 101 S.Ct. 677 (1981)
Discussing the contours of the attorney-client privilege in the corporate setting.

Holding "the privilege exists to protect not only the giving of professional advice to those who
can act on it but also the giving of information to the lawyer to enable him to give sound and
informed advice" and that the corporate attorney-client privilege must be able to reach "below
officers and agents . . . responsible for directing" corporate affairs to learn facts relevant to the
legal situation and to render advice.

Rejecting use of a "control group test" that protects communications from and to "only the senior
management, guiding and integrating" the corporation, as frustrating the goals of the privilege to
provide relevant information for legal advice.

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

 HRE 505
STATE v. LEVI 67 Haw. 247, 686 P.2d 9 (1984)

first-degree murder. Held that: ... (2) conversations between defendant and former wife, where no others
were present, were privileged communications and should not have been admitted into evidence.
Reversed

Susan Kucinski, Levi's former wife, … testified to various conversations made by Levi concerning the killing.
These conversations fall into three situations. In the first, Kucinski testified to conversations which were
made in her presence during two meetings between Levi and Tachibana where Scott's murder was
planned. In the second, she testified to conversations that took place in the privacy of their home without
anyone present. During this conversation, Levi told Kucinski the explicit details of the killing, stating that he
had beaten Scott into unconsciousness, that he and Tachibana had then taken Scott to a banana patch
where Levi let Tachibana drive a tire iron through Scott's neck to give Tachibana "the satisfaction of killing
the man that was going out with his wife." In the third, Kucinski testified that she was present on several
occasions when Levi "bragged" about his involvement in the Scott murder to friends while drinking in a bar.
Each of these instances occurred while Kucinski and Levi were married to each other....

… we conclude that Kucinski's testimony on conversations in situations (1) and (3) are not confidential since
the presence of third parties negates any intention of confidentiality. We conclude, however, that the
conversation in situation (2), which was solely between Kucinski and Levi, is confidential.

HRE 513
STATE v.CULKIN
97 Hawaii 206, 35 P.3d 233 (2001)

Defendant was convicted ... of reckless manslaughter and second-degree reckless endangering. Defendant
appealed. The Supreme Court, held that: ... (3) attempted impeachment of defendant with evidence of false
identification, which caused defendant to invoke right against self-incrimination, was error;

We hold … the circuit court abused its discretion by permitting the prosecution to cross-examine Culkin
about multiple false identification cards discovered at his house with foreknowledge that Culkin intended
to invoke his fifth amendment privilege if questioned about them; ...

Inasmuch as there were no witnesses to the stabbing, this case turned in large part on Culkin's credibility.
The possession of false identification cards, and assorted activities undertaken therewith, were probative of
untruthfulness. … the risk of unfair prejudice occasioned by compelling a criminal defendant to invoke the
fifth amendment privilege in front of jurors is substantial. Generally, claims of privilege must be made
outside of the presence of the jury “in order to avoid “[t]he layman's natural first suggestion ... that the resort
to the privilege in each instance is a clear confession of crime.” “ ...Inasmuch as the prosecution was
advised that Culkin would not answer, we can only conclude that the prosecutor deliberately sought to
compel Culkin to invoke the testimonial privilege in the hope that the jurors would, in fact, interpret Culkin's
invocation as a “clear confession of crime.”

Moreover, the circuit court appears to have paid little heed to HRE Rule 513(b), which is quite explicit that,
“to the extent practicable,” claims of privilege should not be made in front of the jury. Both Culkin and his
attorney advised the circuit court that he would not answer questions about other identification cards and
would invoke his fifth amendment privilege if asked. [conviction vacated]
Professor John Barkai, U.H. Law School - Evidence Page - 68
STATE v. PESETI
101 Hawai'i 172, 65 P.3d 119 (2003)

Defendant was convicted of third-degree sexual assault of child less than 14 years old... Vacated and remanded.
...
Peseti contends that the family court erred in: (1) prohibiting defense counsel from cross-examining the
complainant regarding her recantation of her allegations of sexual abuse by Peseti, on the basis that her recantation fell
within either the statutory privilege set forth in Hawai'i Rules of Evidence (HRE) Rule 505.5(b) (1993) or HRE Rule
504.1(b) (1993), thereby violating Peseti's constitutional right to confront adverse witnesses as guaranteed by article I,
section 14 of the Hawai'i Constitution and the sixth amendment to the United States Constitution;
...
We agree that the family court's refusal to permit defense counsel to cross-examine the complainant regarding her
recantation of her allegations of sexual abuse by Peseti violated his constitutional right to confront adverse witnesses
under the Hawai'i Constitution.
...
We now hold that, when a statutory privilege interferes with a defendant's constitutional right to cross-examine,
then, upon a sufficient showing by the defendant, the witness' statutory privilege must, in the interest of the
truth-seeking process, bow to the defendant's constitutional rights.
...
Although it stands to reason that the right of confrontation via cross-examination, as guaranteed by article I, section
14 of the Hawai'i Constitution, will not trump a statutory privilege in every case in which a conflict arises between the
two, we believe that fundamental fairness entitles a defendant to adduce evidence of a statutorily privileged
confidential communication at trial when the defendant demonstrates that: "(1) there is a legitimate need to disclose the
protected information; (2) the information is relevant and material to the issue before the court; and (3) the party
seeking to pierce the privilege shows by a preponderance of the evidence that no less intrusive source for that
information exists."
...
The circuit court, however, deprived Peseti of the opportunity directly to question the complainant regarding
whether she had recanted her allegations of sexual abuse to her victim counselor and whether she had fabricated her
allegations in order to be removed from the Peseti home. We believe that the proffered cross-examination was
essential to the truth-finding process in the present matter because (1) the complainant might have admitted to recanting
to her victim counselor and offered an explanation or motive for doing so or, in the alternative, (2) the complainant
might have denied the alleged recantation to her victim counselor, a presumably dispassionate witness lacking any
motive to fabricate, at which point defense counsel would have had the opportunity to question the victim counselor
regarding the complainant's communications during the counseling process. The victim counselor's testimony in the
foregoing regard may well have aided the jury in evaluating the complainant's credibility regarding her alleged
recantation. "[T]he credibility of a witness is always relevant[.]"... Inasmuch as the family court prohibited defense
counsel from eliciting relevant evidence that could have affected the jury's assessment of the complainant's credibility
and motive to fabricate the allegations of Peseti's sexual abuse, we believe that Peseti was not afforded "the
constitutionally required threshold level of inquiry," ... accordingly, the family court committed an abuse of
discretion....

[W]e vacate the conviction and remand

Professor John Barkai, U.H. Law School - Evidence Page - 69

 Re: Peseti

From Bowman’s book

Right to question counselor about victim’s recantation

State v. Peseti, 101 Hawaii 172, 182, 65 P.3d 119, 129 (2003), holds that the accused’s
constitutional right to cross-examine a sexual assault complainant “regarding whether she had
recanted her allegations of sexual abuse to her victim counselor” trumps the rule 505.5 privilege.
The Peseti court established foundation requirements for disclosure at trial of victim-counselor
communications: “[W]e believe that fundamental fairness entitles a defendant to adduce
evidence of a statutorily privileged confidential communication at trial when the defendant
demonstrates that: ‘(1) there is a legitimate need to disclose the protected information; (2) the
information is relevant and material to the issue before the court; and (3) the party seeking to
pierce the privilege shows by a preponderance of the evidence that no less intrusive source for
that information exists.’”

The Hawaii Constitution’s Bill of Rights, art. 1, §14, was amended in 2004 to include,
immediately following the confrontation guarantee: “provided that the legislature may provide
by law for the inadmissibility of privileged confidential communications between an alleged
crime victim and the alleged crime victim’s physician, psychologist, counselor, or licensed
mental health professional ….” The intent was to overrule Peseti.

THE CONSTITUTION OF THE STATE OF HAWAII, Section 14

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an
impartial jury of the district wherein the crime shall have been committed, which district shall have
been previously ascertained by law, or of such other district to which the prosecution may be removed
with the consent of the accused; to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against the accused, provided that the legislature may provide by law for
the inadmissibility of privileged confidential communications between an alleged crime victim and
the alleged crime victim's physician, psychologist, counselor or licensed mental health professional;
to have compulsory process for obtaining witnesses in the accused's favor; and to have the assistance
of counsel for the accused's defense. Juries, where the crime charged is serious, shall consist of
twelve persons. The State shall provide counsel for an indigent defendant charged with an offense
punishable by imprisonment. (Nov 2, 2004)

The 2004 amendment may have the effect of insulating the HRE privilege exclusions of rules
504, 504.1, and 505.5 from invalidation under the Hawaii Constitution, as in Peseti.

[NOTE: however, the legislature has never passed a law that would do what the constitutional
amendment would allow.]

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

State v. Padeken Peseti & Rule 504.1
Unpublished opinion, 121 Hawai'i 541, 221 P.3d 519 (2009)

- charged third-degree sexual assault; victim was the minor daughter of Padeken's then girlfriend. …

Padeken asserts that under Peseti, his constitutional right of confrontation trumps the [privileges and that]
the Peseti test still stands and that under that test, he was entitled to use Minor's privileged
communications to impeach Minor.

We conclude that Padeken failed to demonstrate that he was entitled to use Minor's privileged
communications under the test set forth in Peseti…

… we conclude that the impeachment value of Minor's privileged communications was very minimal. We
further conclude that Padeken did not meet his burden under Peseti of demonstrating a legitimate need to
disclose the protected information or that there was no less intrusive source for the protected information.
The inconsistencies on which Padeken sought to impeach Minor involved non-critical or collateral
discrepancies and would not have served to cast doubt on Minor's testimony in any significant way. While
the cited inconsistencies may have suggested a lack of perfect memory by Minor, they would not have
reasonably supported an inference that Minor had lied about being sexually abused by Padeken.

Furthermore, … Padeken … was able to impeach Minor through other means that were at least as
effective. … Padeken was also able to develop his claim that Minor was biased and had fabricated the
allegations against Padeken because she disliked him and wanted to escape his discipline. … The record
shows that Padeken had less intrusive, non-privileged sources for the protected information. [non-
privileged written and videotaped statements to the police.] Moreover, Mother, who was called as a
defense witness, and Padeken himself were available to provide the defense with information relevant to
Minor's allegations and about why Minor might have a motive to lie. Under these circumstances, we hold
that the circuit court did not violate Padeken's constitutional right of confrontation by precluding Padeken
from using Minor's privileged communications to cross-examine or impeach Minor at trial.

We affirm

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

 PRIVILEGE PROBLEMS

1) Father, who is charged with business fraud, talks with his daughter who is a 3L at U.H.
Law School. He admits some shady business practices to his daughter. Can the
daughter be called as a witness against her dad or is the conversation protected by
a privilege?

2) Father then goes to see the lawyer for whom his daughter works as a law clerk. Father
discusses his problem with the lawyer while his own daughter is in the office? Is
the discussion with the lawyer in the daughter's presence privileged?

3) The lawyer thinks the father is disgusting, throws him out of the office, and refuses to
take the case. Was the discussion with the lawyer privileged?

4) Father consults with Lawyer # 2, who takes the case, but is licensed to practice in
Iowa, not Hawaii. Is father's discussion with Lawyer # 2 privileged?

5) Father also consulted with "Lawyer # 3" who is not licensed to practice law anywhere.
He failed the bar 5 times. He finally just bought a copy of the Hawaii Rules of
Evidence, printed a diploma on his computer, hung the diploma on his office wall,
and then just started practicing law. Is father's discussion with Lawyer # 3
privileged?

6) D is arrested and calls a lawyer from the jail while a police officer stands next to him
and listens. May the police officer testify to what D told her lawyer?

7) D is released from jail and goes to talk to her lawyer. The police have the law office
bugged. May the person listening to the bug testify to what D told her lawyer?

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

7.5) Defendant, out on bail awaiting trial on a criminal charge, speaks with her
attorney about the case using a cordless telephone. Unknown to Defendant, a
glitch in the signals causes the conversation to be transmitted to Witness, who is
located nearby speaking on her own cordless phone. Witness reports the
conversation to the police, and the prosecution calls her to testify at trial about
what she heard. Defendant objects on confidentiality grounds. How should the
court rule? (LG 571 2)

8) Criminal co-defendants jointly consult a lawyer. D1 wishes to turn "state's evidence"

and testify against D2 (in hopes of getting a "deal" from the prosecution). Can D1
testify to what D2 said during the meeting between D1, D2, and the lawyer?

9) In the problem above, can D1 testify to what he (D1) said during the meeting with D2
and the lawyer?

10) BUBBLES. D admits to his lawyer that he threw the first punch during a fight.

A) Can prosecutor ask D "Didn't you tell your lawyer that you threw the first
punch?" B) Can prosecutor ask D "Didn't you throw the first punch?"

11) Murder case. D sent his attorney a package with the murder weapon and a note which
reads: "Here is the gun I used in the shooting. You decide what to do with it."
What should the attorney do with the note and the gun?

11.1) From his desk at work, Collin sends his lawyer an e-mail message seeking legal
advice.  Collin's employer randomly monitors e-mail messages sent to and from
Collin's workplace, in order to ensure the computer system is not misused.  Collin
was informed of the monitoring when he joined the company, but has forgotten
about it.  As it happens, Collin's employer does not read his message to his
lawyer.  Is the message privileged?  Would the answer be different if the
employer did read the message? (SK 578)

11.2) Breach of contract action. Plaintiff takes Defendant’s deposition, and asks
Defendant about conversations she had with her attorney. Defendant objects on
the basis of the attorney-client privilege. Plaintiff responds that the privilege does
not apply because the deposition is part of the discovery process, not the trial, and
the rules of evidence do not apply during discovery. What result should occur?
(LG 545 6)
Professor John Barkai, U.H. Law School - Evidence Page - 73
12) A few days after an auto accident, the defendant driver gave a statement to the
insurance company's investigator who worked for the defendant's insurance
company. The insurance company later gave the statement to the lawyer it hired
to represent the defendant. Is that statement discoverable by the injured plaintiff
or is it privileged? See, Dicenzo v. Izawa 723 P.2d 171 (1986)

13) Paki, one of many co-parties in a civil case, does not appear in court. Paki's lawyer
refuses to disclose to the judge Paki's whereabouts or the identities of third parties
who may know Paki's whereabouts. Are Paki's whereabouts and the identities of
the third parties protected by a privilege? See, Sapp v. Wong 62 Haw. 34, 609
P.2d 137 (1980).

14) B Corporation consults with its attorneys about pending litigation against the
company. A technician in B Corporation is told, by his supervisor, to cooperate
with the attorneys and give them his statement. The technician is subpoenaed by
the party suing B Corporation and will be asked to provide information about his
communication with the attorneys for B Corporation. Will the technician and
Corporation B be able to claim the attorney-client privilege? (SF: 248)

15) OLD MOVIES. D shoots V and a woman sees it. D says "Howzit beautiful? Will
you marry me?" They get married. Can W be compelled to be a witness by the
prosecution at D's trial?

16) SPOUSES. D returns home from seeing a lawyer and tells his wife that he told the
lawyer that he shot V. Has D waived his privilege with his lawyer?

17) ALL IN THE FAMILY. In the problem above, after D tells his story about his
meeting with the lawyer to his wife, his daughter walks into the room and he
repeats the story. Has D waived his privilege?

18) First degree murder. Are the following statements privileged? D's former wife
testified to what she heard, while she was married to D:

1) a conversation (in her presence) between D and an alleged accomplice during

which they planned the murder;

Professor John Barkai, U.H. Law School - Evidence Page - 74

 2) when they were alone one night, her husband told her explicit details about the
killing;

3) D's bragging to friends (in her presence) about his involvement in the murder
while he was drinking in a bar.

See, State v. Levi 67 Hawaii 247; 686 P.2d 9 (1984)

19) An auto accident resulted in a death of one of the drivers. In a criminal, negligent
homicide case is a statement privileged if the statement was made by the
defendant driver to his doctor about the accident? The doctor will testify that in
order to evaluate properly the condition of his patient, it was necessary for him to
elicit from the patient the details of the accident in which he had been involved.

See, State v. Swier 66 Hawaii 448; 666 P.2d 169 (1983)

20) During a physical examination of the patient during a visit to the doctor, the doctor
sees scars below X's belt (in a private area normally covered by the patient’s
underwear). The doctor is called as a witness to testify about the scars. Is the
view of the scars privileged?

21) Plaintiff is hurt in an auto accident. Plaintiff's lawyer sends her to a doctor for an
opinion regarding the extent of plaintiff's permanent disability. Is the doctor's
opinion privileged?

Professor John Barkai, U.H. Law School - Evidence Page - 75

 PRESUMPTIONS

As an example of a statutory privilege:

PRESUMPTION OF PATERNITY
HRS § 584-4

(a) A man is presumed to be the natural father of a child if:

(1) He and the child's natural mother are or have been married to each other and the
child is born during the marriage. ...

(b) A presumption under this section may be rebutted in an appropriate action only by
clear and convincing evidence. ...

Professor John Barkai, U.H. Law School - Evidence Page - 76

 PRESUMPTION PROBLEMS
Hypos from L. Letwin, Evidence Law, (1986)

1. Facts: P was removed as a member of the Civil Service Commission because

he was elected to his local Neighborhood Board. P's removal was done to
comply with the following law:

HRS §76-51 The office of any member of the civil service commission who
occupies any elective or appointive office shall be conclusively presumed to
have been abandoned and vacated by reason thereof and the governor
shall thereupon appoint a qualified person to fill the vacancy.

P has filed suit for wrongful discharge.

1A. At trial, P claims that a neighborhood board position is not an elective office.
Corporation counsel argues that it is. P wants no instruction to be given to the
jury (claiming the bubble burst). Corporation counsel says the proper instruction
is "if you find that P did occupy an elective office, you must find that the office
was abandoned and vacated." What type of presumption is this?

Should the judge give that instruction?

1B. Suppose P does not contest that the neighborhood board position is an
elective office, but P wants to offer evidence that he has not abandoned and
vacated his civil service commission because his neighborhood board position is
part-time, can be done on the evenings and weekends, and in no way interferes
with his civil service commission position. Is that evidence admissible?

2. Facts: P sues to recover $300 from D, a mail order photography store on the
mainland. P claims he sent a money order for $300 to D, but never received the
camera that he ordered. As proof of payment, P testifies that he placed a money
order in an envelope properly addressed to D, he put the correct postage on the
envelope, and he deposited the envelope in a U.S. mail box. Is there a
presumption here? What type?

2A. D rests without cross-examining P or offering any evidence contradicting P's

claim that he had sent the money. D then moves for dismissal arguing that P has
offered insufficient evidence of mailing to meet his burden of proof. What ruling
on D's motion to dismiss? Is P entitled to any instruction? If so, how should the
instruction read?

2B. Same case. After P rests, D offers a witness who testifies that on the date P
claims to have mailed the letter, P was hospitalized and in traction, and thus
incapable of mailing a letter. No one from D's business testifies that they did not
receive the letter. What is the proper instruction for the jury?
Professor John Barkai, U.H. Law School - Evidence Page - 77
2C. Same case. Instead of the hospital testimony, D offers the testimony of D's
mailroom clerk who maintains regular, routine business records of all incoming
mail orders on money received. The clerk says that if money was received, he
would have a record of it. He says that he has no such record, and therefore no
money was received from P. D rests. P then asks for alternative instructions that
1) the letter is presumed to have been received by D, or 2) that the jury is to
believe that the money was received by D unless the jury believes the testimony
that the money was not received. What instruction, if any, should the court give?

2D. Same case. D offers both the evidence that P was hospitalized and that
there was no receipt of money. P then asks for an instruction that if the jury finds
that the letter was properly addressed and mailed then they must find that the
letter and check was received. Should that instruction be given?

3. Facts: Civil suit by P (mother) against D (a life insurance company) to collect

on a $50,000 life insurance policy on P's son. As evidence of son's death, P
testifies that 1) her son ran away from home when he was 18 years old, 2) she
has not heard from him in 6 years, and 3) she knows of no one who has heard
from him. P offers no other evidence of the son's death.

3A. D rests without cross-examining or offering any witnesses, and moves for
dismissal, arguing that P has offered insufficient evidence of the death of her son
to meet her burden of proof. Is there a presumption here? What type? What
should the court rule?

3B. Same case. D offers evidence that P received a letter from her son 4 years
after he left. D does not offer any evidence that the son is alive at the time of
trial. P asks for a presumption instruction. What should the instruction say?

3C. Same case. D offers evidence that one year ago the Bombay police had
arrested a person whose fingerprints matched those of the son. The person was
released from custody shortly after the prints were taken. There is no further
information about this person. What presumption instruction should be given?

3D. D offers both the fingerprint evidence and the letter evidence. P asks for a
presumption instruction that if the jury resolves the basic facts in favor of P, then
it must find for P, unless the jury believes that D, by a preponderance of the
evidence, has established that the son is alive today. What ruling?

Professor John Barkai, U.H. Law School - Evidence Page - 78

 JUDICIAL NOTICE
STATE v. LORENZO, 77 Hawai'i 219, 883 P.2d 641 (1994)
[This case is an example of an appellate court taking judicial notice.]

Lorenzo appeals, arguing that the lower court erred in denying his pretrial motion to dismiss the
indictment. The essence of the Motion is that the Kingdom of Hawai'i (Kingdom) was recognized
as an independent sovereign nation by the United States in numerous bilateral treaties; the
Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom
still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of
Hawai'i have no jurisdiction over him. Lorenzo makes the same argument on appeal. For the
reasons set forth below, we conclude that the lower court correctly denied the Motion…

Lorenzo did not meet his burden of proving his defense of lack of jurisdiction. Therefore, we must
affirm the judgment…

We also take judicial notice that within the Native Hawaiian community there is more than one
group that has disavowed Act 359's process and has declared itself to be either independent of the
State and the United States or has established its own constitution establishing a Native Hawaiian
"Nation within a Nation." At least one of those groups bases its declaration of independence on
P.L. 103-150. Some of those groups have actively sought recognition internationally and from the
United States government as a reorganized sovereign Hawaiian nation. However, none has been
successful so far.

… it was incumbent on Defendant to present evidence supporting his claim. Lorenzo has presented
no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with
recognized attributes of a state's sovereign nature. Consequently, his argument that he is subject
solely to the Kingdom's jurisdiction is without merit, and the lower court correctly exercised
jurisdiction over him….

Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook

R201 [I]t is a well-settled principle that the decision of another court or agency, including the
decision of an administrative law judge, is a proper subject of judicial notice. Judicial notice is
limited, however, to the existence and terms of the judicial record; it does not extend to the truth
of statements quoted in the record, or to factual findings.
Examples:
• That certain matters have been posted on a website.
• "[T]he fact that various newspapers, magazines, and books have published information *
* *. Courts may take judicial notice of publications introduced to `indicate what was in the public
realm at the time, not whether the contents of those articles were in fact true.'

Professor John Barkai, U.H. Law School - Evidence Page - 79

STATE v. VALLEJO, 9 Haw.App. 73, 823 P.2d 154 (1992)
FN2. We take judicial notice that Kapahulu Avenue is a county highway. Rule 201(b) and (f),
Hawaii Rules of Evidence (HRE) (1985).

The trial court then took judicial notice of the schedules of speed limits (Schedules) on county
highways on file with the clerk of the district court and found the official speed limit on Kapahulu
Avenue was 25 mph.

Speed limits for Honolulu county roads are established by Revised Ordinances of Honolulu (ROH)
1978 Chapter 15 (1983 ed.), the Traffic Code.

The Traffic Code establishes a myriad of regulations, including speed limits, governing traffic on county
roads. Speed limits are established by ROH s 15-7.2. …Rule 202(b), Hawaii Rules of Evidence (HRE)
(1985), requires the courts to take judicial notice of all duly enacted ordinances. When the court took
judicial notice of the Schedules filed with the clerk, it took judicial notice of ROH s 15-7.2.
Consequently, the ordinance was proved.

The pertinent provisions of HRS s 291C-31 (1985) read as follows:

(c) Whenever official traffic-control devices are placed in position approximately conforming to
law, such devices shall be presumed to have been so placed by the official act or direction of lawful
authority, unless the contrary shall be established by competent evidence.

HRS s 291C-31(c)'s presumption is the legislature's recognition of the common experience that,
where an official traffic control device is in a legally proper place on the highway, it was placed there by
some properly authorized agent of the government. Therefore, the legislative intent expressed in the
statute is that, if the State has proved the official nature of the traffic control device and its position
approximately conforming to law, it has established prima facie that the device was placed under
authority of law.

Affirmed.

Professor John Barkai, U.H. Law School - Evidence Page - 80

 JUDICIAL NOTICE PROBLEMS
1. Tort suit from an auto accident at University and Dole. P asks the court to take judicial notice
of the following facts (1) that there was no rain in Honolulu on the day of the accident and (2) that
the pavement at the intersection was dry. In support of request for judicial notice, P produces a
copy of the official weather bureau record for Honolulu for the day of the accident, which shows no
precipitation was recorded. Should judicial notice be taken?

2. SUBPOENA. D is cited to show cause why he should not be held in contempt of court for
failing to appear as a witness in a trial after being served with a subpoena. D denies he received the
subpoena. The prosecutor asks the court to take judicial notice that D was served with the subpoena,
directing the court's attention to a properly executed return of service filed by the sheriff and
included as part of the record of the case. The prosecutor also asks the court to take judicial notice
of the fact that D was previously held in contempt for failure to appear at an earlier hearing of the
same case, and was twice held in contempt at trials on the mainland.

3. xx

4. Government of Virgin Islands v Gereau.

Nine-day jury deliberation. Later, one juror said the bailiff told her "they should hurry up so I can
get home." Bailiff denied the conversation. Judge believed the bailiff because he knew she was
interested in earning extra money from extra work. Did the court take proper judicial notice? Was
it error?

5. xx

6. xx

7. xx

8. xx

9. Personal injury action arising from the head-on collision. Defendant asks the court to take
judicial notice that a large puddle often forms at this location and remains for up to a week or two
after a rainstorm. The judge is personally aware that this is true. Should the court take judicial
notice? (LG 74 5)

Professor John Barkai, U.H. Law School - Evidence Page - 81