Haw. Rev. Stat. § 622-56 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-56
Fees; service of more than one subpoena.
Status: in_force

(a) All copies of medical records requested under this part shall be paid for by the person, board, commission, or tribunal requesting such records. The cost shall be based on the actual cost of preparation.

(b) This part shall not be deemed to require the tender of more than one witness or mileage fee required, unless there is an agreement to the contrary.

(c) If more than one subpoena duces tecum is served upon the custodian or other qualified witness from a medical facility and the personal attendance of that person is required, the witness shall be deemed to be the witness of the party serving the first subpoena. [L 1971, c 139, pt of §1; am L 1972, c 104, §2(w); am L 1987, c 283, §61]
Haw. Rev. Stat. § 1 — HI Code / Division 4 / Title 33 / Chapter 626 / Section 1
Rule 705 Disclosure of facts or data underlying expert opinion.
Status: in_force

Rule 705 Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give the expert's reasons therefor without disclosing the underlying facts or data if the underlying facts or data have been disclosed in discovery proceedings. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

RULE 705 COMMENTARY

The difference between this rule and Fed. R. Evid. 705 is that the latter rule eliminates the need for prior disclosure "unless the court requires otherwise"; the present rule eliminates the need for prior disclosure so long as "the underlying facts or data have been disclosed in discovery proceedings."

The traditional approach, in cases where the expert lacked firsthand knowledge of the underlying facts, was to permit the opinion testimony only after the basis was specified in a hypothetical question derived strictly from evidence already admitted in the action. The hypothetical question has been subject to extensive criticism on the grounds that it is unnecessarily time-consuming, that it encourages bias, and that it often is confusing to the jury. See, e.g., Barretto v. Akau, 51 H. 383, 463 P.2d 917 (1969); McCormick §§14, 17. The general practice of incorporating into the hypothetical question the entire body of relevant data adduced by prior testimony often results in a formulation of formidable length and density. In a recent Hawaii case, the question alone took up five pages of the transcript, Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 108, 412 P.2d 669, 689 (1966). This is by no means a record. In an early California case, the hypothetical question took up 83 pages of transcript, with an additional 14 pages of objections. McCormick §14 n. 95.

The intent of this rule and of Fed. R. Evid. 705 is to eliminate the burdensome and outmoded necessity of formulating a hypothetical question in every instance in which an expert bases his opinion upon other than firsthand knowledge, and to render prior disclosure of underlying data discretionary with the court except in those relatively rare instances where discovery proceedings have not yielded the underlying material. In practice, such instances should be limited to situations where experts are obtained while the trial is in progress, given the continuing duty to disclose discovery material imposed by HRCrP 16(c)(2) and HRCP 26(e)(1)(B). In such instances prior testimonial disclosure, which need not be in hypothetical form, is required in order to allow the adversary to judge whether the basis lacks sufficient trustworthiness to qualify under Rule 703.

For similar provisions, see Cal. Evid. Code §802; Kans. Code Civ. Proc. §§60-456, 60-457; Uniform Rule of Evidence 705.Rule 604 Interpreters. An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation.

RULE 604 COMMENTARY

This rule is identical with Fed. R. Evid. 604. In Hawaii, circuit and district court judges are empowered to appoint interpreters by Hawaii Rev. Stat. §606-9 (1976). In addition, HRCP 43(f) and HRCrP 28(b) authorize the courts to appoint and to determine the compensation for interpreters.

Under this rule, an interpreter is regarded as a witness for purposes of the oath requirement of Rule 603 supra, and as an expert, consistent with provisions of Rule 702 infra, for the purpose of determining his qualifications to interpret or to translate in the matter at issue. Under Hawaii law, preliminary determination of his qualifications is a matter within the discretion of the court, John Ii Estate v. Judd, 13 H. 319 (1901). Hawaii law also holds that opportunity for a thorough cross-examination to test the qualifications of witnesses offered as expert translators is essential, McCandless v. Water Co., 35 H. 314, 320 (1940).

A line of Hawaii Supreme Court decisions establishes that the Hawaiian language may be judicially noticed by the court, see Territory v. Bishop Trust Co., 41 H. 358, 367 (1956); McCandless v. Water Co., 35 H. 314, 321-22 (1940); commentary to Rule 201 supra. "In this jurisdiction the Hawaiian language is not to be regarded as a foreign language, but as one of which the courts and judges must take judicial notice.... [T]he trial judge was at liberty to use his own knowledge of the Hawaiian language and also to call to his assistance the official interpreters of the court and, if it was deemed advisable, other experts." 35 H. at 321.Rule 1102 Jury instructions; comment on evidence prohibited. The court shall instruct the jury regarding the law applicable to the facts of the case, but shall not comment upon the evidence. It shall also inform the jury that they are the exclusive judges of all questions of fact and the credibility of witnesses.

RULE 1102 COMMENTARY

This rule, which has no Fed. R. Evid. counterpart, replaces two prior statutes, Hawaii Rev. Stat. §§635-15, 635-17 (1976) (repealed 1980) (originally enacted as L 1892, c 56, §1; am L 1932 2d, c 24, §1; am L 1972, c 89, §2B(e); and L 1932 2d, c 24, §2). §635-15 authorized the court to "charge the jury whether there is or is not evidence, indicating the evidence, if any, tending to establish or rebut any specific fact involved in the case." §635-17 authorized the court, "in a criminal case, [to] make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case." The present rule precludes "comment upon the evidence" in all cases. This of course is not intended to restrict the court's function set forth in Article II (judicial notice) and Article III (presumptions).Rule 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded 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.

RULE 403 COMMENTARY

This rule is identical with Fed. R. Evid. 403. It recognizes the necessity for discretionary qualification of the general admissibility rule, based on such factors as potential for engendering juror prejudice, hostility, or sympathy; potential for confusion or distraction; and likelihood of undue waste of time. See McCormick §185. "Unfair prejudice," as the Advisory Committee's Note to Fed. R. Evid. 403 explains, "means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." In some cases assessment of potential for prejudice will depend upon the court's view of the ability and willingness of jurors to follow a limiting instruction, see Rule 105 supra. Necessity for a Rule 403 "balance" can arise in a variety of contexts because of the pervasive nature of the principle. In particular, Rules 404(b), 608(b), and 609 implicitly call for application of this principle.

Hawaii courts have addressed the issue of discretionary exclusion of relevant evidence in the context of admissibility of gruesome or inflammatory photographs, see State v. Apao, 59 H. 625, 586 P.2d 250 (1978). "Other crimes" evidence, see Rule 404(b) infra, presents a classic example of the necessity for the Rule 403 balance, as the Hawaii Supreme Court recognized in State v. Iaukea, 56 H. 343, 349, 537 P.2d 724, 729 (1975): "The responsibility for maintaining the delicate balance between probative value and prejudicial effect lies largely within the discretion of the trial court." In State v. Murphy, 59 H. 1, 575 P.2d 448 (1978), again in commenting on "other crimes" evidence, the court stressed the trial court's responsibility of assessing the balance between probative value and prejudicial effect and noted that considerations germane to such a balancing process should include actual need for the evidence, availability of other evidence on the same issues, probative weight of the evidence, and the potential for creating prejudice and hostility against the accused in the minds of the jurors. The court recently noted that character evidence (see Rule 404(a) infra) must be evaluated with reference to the Rule 403 principle, see State v. Lui, 61 H. 328, 603 P.2d 151 (1979).Rule 607 Who may impeach. The credibility of a witness may be attacked by any party, including the party calling the witness.

RULE 607 COMMENTARY

This rule, which is identical with Fed. R. Evid. 607, rejects the traditional theory that a party calling a witness "vouches" for his truthfulness and therefore is barred from impeaching him. See generally McCormick §38. As the Advisory Committee's Note to Fed. R. Evid. 607 puts it:

A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right [to impeach] leaves the party at the mercy of the witness and the adversary.... The substantial inroads into the old rule made over the years by decisions, rules, and statutes are evidence of doubts as to its basic soundness and workability.

This rule supersedes a statute, Hawaii Rev. Stat. §621-25 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §58; am L 1972, c 104, §1(r)), which precluded a party from impeaching his own witness "by general evidence of bad character" but permitted impeachment by prior inconsistent statement when the witness "prove[d] adverse." In construing the provisions of the prior statute, the Hawaii courts suggested that a witness would "prove adverse" if his testimony was materially inconsistent with the prior statement, his inconsistency came as a surprise to the party offering his testimony, and he either expressly denied or, by evasion, implied a denial of the prior statement, Territory v. Witt, 27 H. 177 (1923); see also Kwong Lee Wai v. Ching Shai, 11 H. 444 (1898). Rule 607 thus effects a significant change in Hawaii law in accord with a growing trend in other jurisdictions, e.g., Cal. Evid. Code §785. Another good reason for abandoning the old impeachment limitation is that, as applied to defense witnesses, its constitutionality is suspect in criminal cases, see Chambers v. Mississippi, 410 U.S. 284 (1973).Rule 102 Purpose and construction. These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

RULE 102 COMMENTARY

This rule is identical with Fed. R. Evid. 102. It parallels similar provisions in the Hawaii Rules of Court, see HRCrP 2, HRCP 1, and HFCR 1. Except for Articles III and V, these rules have as their model the Federal Rules of Evidence (Fed. R. Evid.), 28 U.S.C. app., at 539 (1976), as amended, 28 U.S.C.A. Fed. R. Evid. (Supp. 1979). Accordingly, the commentary to each rule (except in Articles III and V) indicates whether the rule is identical with or differs from the counterpart federal rule. The intent is to make applicable, as an aid in construction, the federal decisional law construing identical or similar Fed. R. Evid. provisions. Other sources for these rules, noted from time to time in the commentaries, are the Uniform Rule of Evidence and the Cal. Evid. Code (especially for Article III).Rule 903 Subscribing witness' testimony unnecessary. The testimony of a subscribing witness is not necessary to authenticate a writing.

RULE 903 COMMENTARY

This rule is similar to Fed. R. Evid. 903, except that the present rule eliminates the clause, "unless required by the laws of the jurisdiction whose laws govern the validity of the writing." It supersedes a statute, Hawaii Rev. Stat. §622-1 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §62; am L 1972, c 104, §2(a)), which provided: "It shall not be necessary to prove an instrument by the attesting witness if attestation was not required in order for the instrument to be valid...."Rule 616 Televised testimony of child. In any prosecution of an abuse offense or sexual offense alleged to have been committed against a child less than eighteen years of age at the time of the testimony, the court may order that the testimony of the child be taken in a room other than the courtroom and be televised by two-way closed circuit video equipment to be viewed by the court, the accused, and the trier of fact, if the court finds that requiring the child to testify in the physical presence of the accused would likely result in serious emotional distress to the child and substantial impairment of the child's ability to communicate. During the entire course of such a procedure, the attorneys for the defendant and for the State shall have the right to be present with the child, and full direct and cross-examination shall be available as a matter of right.Rule 1002 Requirement of original. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

RULE 1002 COMMENTARY

This rule is identical with Fed. R. Evid. 1002 except that "statute" is substituted for "Act of Congress." Rule 1002 states the so-called "best evidence rule," requiring the production of the original document whenever the proponent seeks to prove the document's contents. See, e.g., Ripley v. Kapiolani Estate, 22 H. 86 (1914). The present rule applies this requirement to writings, recordings, and photographs as those terms are defined in Rule 1001.Rule 502 Required reports privileged by statute. A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if the law requiring it to be made so provides. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if the law requiring it to be made so provides. No privilege exists under this rule in actions involving perjury, false statements, fraud in the return or report, or other failure to comply with the law in question.

RULE 502 COMMENTARY

This rule is identical with the U.S. Supreme Court's proposed Rule 502, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975). A number of Hawaii statutes requiring that reports be made or information be supplied incorporate provisions against unauthorized disclosure of such reports or information. This has the effect of creating a qualified privilege for the reporting party and for the recipient on the reporting party's behalf.

Characteristic of such privilege provisions are those found in statutes dealing with social services, vital statistics, health, and motor vehicle safety. See, e.g., Hawaii Rev. Stat. §346-10 (Supp. 1979), which provides for confidentiality of records maintained by the Department of Social Services and Housing; Hawaii Rev. Stat. §334-5 (1976), which provides for qualified confidentiality of mental health records; Hawaii Rev. Stat. §324-23 (1976), which limits the use in legal proceedings of reports and information made to the Hawaii Tumor Registry; and Hawaii Rev. Stat. §287-14 (1976), which establishes a privilege against disclosure of certain motor vehicle accident reports in civil actions to recover damages.Rule 703 Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court may, however, disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

RULE 703 COMMENTARY

The first two sentences of this rule are identical with Fed. R. Evid. 703 in its entirety. The last sentence was added to clarify the court's discretion to exclude untrustworthy opinions.

The traditional view limits the facts or data upon which an expert may base an inference or an opinion to those obtained upon firsthand knowledge or to facts of record. McCormick §14. Characteristic examples of expert testimony based upon firsthand knowledge are the testimony of a physician, based on his medical examination of an individual, of a ballistics expert, based upon his examination of a bullet, or of a handwriting analyst, based upon his study of a specimen of handwriting. The expert may become conversant with facts of record either by being present during testimony or, more characteristically, through their submission to him in the form of a hypothetical question.

Hawaii decisions appear to adhere to the limitations of the traditional rule, see State v. Davis, 53 H. 582, 499 P.2d 663 (1972); Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 106, 412 P.2d 669, 687 (1966); Kawamoto v. Yasutake, 49 H. 42, 410 P.2d 976 (1966). In State v. Dillingham Corp., 60 H. 393, 411, 591 P.2d 1049, 1060 (1979), however, the court said:

In this jurisdiction, we have taken a liberal view toward the admission of evidence used to support an expert's opinion as to fair market value [of realty].... The factors considered and the extent of knowledge and reasoning of an otherwise qualified appraiser are matters which go to the weight rather than the competence of his testimony.

Rule 703 allows opinions based on data not admissible in evidence so long as "of a type reasonably relied upon by experts in the particular field." The Advisory Committee's Note to Fed. R. Evid. 703 points out:

[T]he rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.

McCormick agrees: "It is reasonable to assume that an expert in a science is competent to judge the reliability of statements made to him by other investigators or technicians." McCormick §15.Rule 1003 Admissibility of duplicates. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

RULE 1003 COMMENTARY

This rule is identical with Fed. R. Evid. 1003. It restates a prior statute, Hawaii Rev. Stat. §622-3 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §44; am L 1945, c 17, §1; am L 1972, c 104, §2(c)), which similarly provided for liberal use of facsimile copies in lieu of originals. See Territory v. Morgenstein, 39 H. 602 (1952). "Duplicate" is defined in Rule 1001(4) supra.Rule 105 Limited admissibility. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

RULE 105 COMMENTARY

This rule is identical with Fed. R. Evid. 105.

Hawaii has recognized the principle of limited admissibility. Low v. Honolulu Rapid Transit Co., 50 H. 582, 585-586, 445 P.2d 372, 376 (1968): "It is a basic proposition that evidence may be properly admitted for a limited permissible purpose even though it may not be admissible for all purposes." However, the present rule is not designed to provide automatic, uncritical admission in every such instance. As McCormick observes: "[I]n situations ... where the danger of the jury's misuse of the evidence for the incompetent purpose is great, and its value for the legitimate purpose is slight ... the judge's power to exclude the evidence altogether would be recognized." McCormick §59.

Determination of limited admissibility under this rule, therefore, involves a careful balance between the value of the evidence, in terms of the limited purpose for which it is admissible, and the danger of prejudice occasioned by possible consideration of the evidence by the jury for improper purposes in disregard of the limiting instruction. As the Advisory Committee's Note to Fed. R. Evid. 105 puts it: "A close relationship exists between this rule and Rule 403." The rule recognizes the necessity for discretionary judicial exclusion of such evidence when the danger of prejudice is great. Cf. Bruton v. United States, 391 U.S. 123 (1968).Rule 409 Payment of medical and similar expenses. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

RULE 409 COMMENTARY

This rule is identical with Fed. R. Evid. 409, the Advisory Committee's Note to which says:

Contrary to Rule 408, dealing with offers of compromise, the present rule does not extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. This difference in treatment arises from fundamental differences in nature. Communication is essential if compromises are to be effected, and consequently broad protection of statements is needed. This is not so in cases of payments or offers or promises to pay medical expenses, where factual statements may be expected to be incidental in nature.Rule 508 Trade secrets. A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.

RULE 508 COMMENTARY

This rule is similar to Uniform Rule of Evidence 507. Unlike the other privileges in this section, the rule provides a qualified right against disclosure, subject to broad judicial discretion. Hawaii courts have not addressed the issue at the appellate level; however, HRCP 26(c)(7) provides qualified protection against such disclosure during pre-trial discovery, investing the court with discretion to order "that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way." This rule extends that protection to the trial stage.Rule 102.1 Effect of commentary. The commentary to these rules when published may be used as an aid in understanding the rules, but not as evidence of legislative intent.

RULE 102.1 COMMENTARY

This rule has no Fed. R. Evid. counterpart. It closely resembles Hawaii Rev. Stat. §701-105 (1976), which limits the effect of the penal code commentary because, as the commentary to that section points out, "of the strong judicial deference given legislative committee reports and other evidence of legislative intent authored by the Legislature or its staff." See State v. Aiu, 59 H. 92, 98, 576 P.2d 1044, 1049 (1978); State v. Anderson, 58 H. 479, 483, 572 P.2d 159, 162 (1977); State v. Alo, 57 H. 418, 426-27, 558 P.2d 1012, 1017 (1976); State v. Nobriga, 56 H. 75, 77, 527 P.2d 1269, 1273 (1974).Rule 602 Lack of personal knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

RULE 602 COMMENTARY

This rule, which is identical with Fed. R. Evid. 602, restates the traditional common-law rule barring a witness from testifying to facts of which he has no direct personal knowledge. See McCormick §§10, 11. "Personal knowledge," for purposes of this rule, means that the witness perceived the event about which he testifies and that he has a present recollection of that perception. The personal knowledge requirement should not be confused with the hearsay ban, see Rule 802 infra. In fact, the requirements of Rule 602 apply to a hearsay statement admitted under any of the hearsay exception rules, 802.1, 803, and 804 infra, in that admissibility of a hearsay statement is predicated on the foundation requirement of the witness' personal knowledge of the making of the statement itself.

Evidence of personal knowledge is a general foundation requirement for admissibility of all evidence, subject to Rule 703 relating to expert witnesses. The Advisory Committee's Note to Fed. R. Evid. 602 points out: "It will be observed that the rule is in fact a specialized application of the provisions of Rule 104(b) on conditional relevancy." However, preliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony. "If under the circumstances proved, reasonable men could differ as to whether the witness did or did not have adequate opportunity to observe, then the testimony of the witness should come in, and the jury will appraise his opportunity to know in evaluating the testimony." McCormick §10. Compare Apo v. Dillingham, 50 H. 369, 371, 440 P.2d 965, 967 (1968), where the court said: "A party may testify as to the boundaries of the land he claims. But before such testimony is admissible, the witness must indicate his knowledge of the contents of documents to which he refers."Rule 402 Relevant evidence generally admissible; irrelevant evidence inadmissible. All relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States and the State of Hawaii, by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.

RULE 402 COMMENTARY

This rule, similar to Fed. R. Evid. 402, establishes the basic precondition for admissibility of all evidence: it must be "relevant" as that term is defined in Rule 401. In State v. Smith, 59 H. 565, 567-68, 583 P.2d 347, 349-50 (1978), the court held: "All relevant evidence is admissible unless some rule compels its exclusion.... Our laws give a [party] the right to introduce evidence of those relevant and material facts which logically tend to prove the issues involved and which is not otherwise excluded." See State v. Irebaria, 55 H. 353, 519 P.2d 1246 (1974); Territory v. Henry, 39 H. 296 (1952); Bonacon v. Wax, 37 H. 57 (1945).

There are, of course, many qualifications to the general admissibility of relevant evidence. The exclusionary rule in criminal cases, see, e.g., State v. Santiago, 53 H. 254, 492 P.2d 657 (1971), is a prime example. Rule 403 infra, requires exclusion of relevant evidence whenever the relevance or 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." Privilege (Article V) and hearsay (Article VIII) rules frequently interpose a bar to the receipt of relevant evidence.Rule 406 Habit; routine practice. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

RULE 406 COMMENTARY

This rule is identical with Fed. R. Evid. 406, the Advisory Committee's Note to which says: "Character and habit are close akin. Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait.... A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving.... When disagreement has appeared, its focus has been upon the question what constitutes habit, and the reason for this is readily apparent. The extent to which instances must be multiplied and consistency of behavior maintained in order to rise to the status of habit inevitably gives rise to differences of opinion.... While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated."Rule 805 Hearsay within hearsay. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

RULE 805 COMMENTARY

This rule is identical with Fed. R. Evid. 805. Because the principal concern in determining the admissibility of hearsay evidence is the assurance of trustworthiness, multiple hearsay creates a multi-level requirement for such assurance. However, if each level of hearsay independently meets the requirements for admissibility under an applicable hearsay exception, the circumstantial guarantee of trustworthiness for such a statement is as great as for single-level hearsay.

Instances of multi-level hearsay evidence are by no means uncommon. For example, former testimony of an unavailable witness, which qualifies for admissibility under Rule 804(b)(1), might contain testimony of an excited utterance, a statement against interest, or an admission by a party-opponent. Business records evidence presents multiple hearsay problems in cases where informants are not under a business duty, see the commentary to Rule 803(b)(6) supra. As long as each level meets the requirement of independent qualification, this type of evidentiary complexity offers no unique problem.Rule 101 Scope. These rules govern proceedings in the courts of the State of Hawaii, to the extent and with the exceptions stated in rule 1101.

RULE 101 COMMENTARY

This rule differs from Fed. R. Evid. 101 only in that "courts of the State of Hawaii" has been substituted for "courts of the United States and before United States magistrates." Rule 1101 provides greater detail regarding the applicability of the rules in various courts and proceedings.Rule 509 Privilege against self-incrimination. To the extent that such privilege exists under the Constitution of the United States or the State of Hawaii, a person has a privilege to refuse to disclose any matter that may tend to incriminate the person.

RULE 509 COMMENTARY

This rule is similar to Cal. Evid. Code §940. It derives directly from the constitutional privilege against self-incrimination assured by the Fifth Amendment to the U.S. Constitution and by Article I, Section 10, of the Constitution of the State of Hawaii. It was also incorporated in a prior statute, Hawaii Rev. Stat. §621-18 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §53; am L 1927, c 164, §1; am L 1971, c 151, §1; am L 1972, c 104, §1(m)), which provided in part:

Nothing herein shall render any person who in any criminal proceeding is charged with the commission of any indictable offense, or any offense punishable on summary conviction, compellable to be a witness against himself; or, except as otherwise provided, shall render any person compellable to answer any question tending to incriminate himself....

In a landmark case nearly a century ago, Counselman v. Hitchcock, 142 U.S. 547, 563 (1892), the U.S. Supreme Court concluded that the privilege against self-incrimination extended not only to the accused in a criminal case but also to witnesses generally: "The object [of the privilege] was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but is as broad as the mischief against which it seeks to guard." See Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment privilege applicable to states); State v. Santiago, 53 H. 254, 492 P.2d 657 (1971).

This privilege may be lost in only two ways. The first is through voluntary disclosure by the holder of the privilege, see Rule 511 infra. The second is through a grant of immunity, as provided for by statute, see Hawaii Rev. Stat. ch. 621C (Supp. 1979); Kastigar v. United States, 406 U.S. 441 (1972).Rule 603 Oath or affirmation. Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the witness' duty to do so.

RULE 603 COMMENTARY

This rule is identical with Fed. R. Evid. 603. Its intent is to retain the common-law requirement that a witness must solemnly undertake to tell the truth. As the Advisory Committee's Note to Fed. R. Evid. 603 puts it: "[N]o special verbal formula is required."

Although under early common law, refusal of a witness to affirm his belief in a supreme being or to invoke the deity according to a specified formulary oath rendered him incompetent, modern law is contrary. In United States v. Looper, 419 F.2d 1405, 1407 (4th Cir. 1969), the court said: "The common law ... requires neither an appeal to God nor the raising of a hand as a prerequisite to a valid oath. All that the common law requires is a form or statement which impresses upon the mind and conscience of a witness the necessity for telling the truth."

The liberal requirement for an "oath or affirmation" is broadly consistent with Hawaii law. Hawaii Rev. Stat. §1-21 (1976) provides that "[t]he word 'oath' includes a solemn affirmation." A prior statute, superseded by this rule, stated: "Every court ... may administer the following oath-affirmation to all witnesses legally called before them: Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth?" Hawaii Rev. Stat. §621-12 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §48; am L 1973, c 155, §1). In State v. Ponteras, 44 H. 71, 75, 351 P.2d 1097, 1100 (1960), the court, in determining the issue of the sufficiency of an oath administered to a minor, stated: "No particular words are required in exacting the declaration or promise from a child to tell the truth."

The rule is also in accord with Hawaii's statutes on perjury. Hawaii Rev. Stat. §§710-1060 through 710-1062 (1976) all proscribe false statements under oath, and Hawaii Rev. Stat. §710-1000(10) (1976) defines "oath" for the purposes of these statutes: "'Oath' includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated...." In addition, Hawaii Rev. Stat. §710-1068 (1976) provides that it is no defense that "the oath was administered or taken in an irregular manner."Rule 512 Privileged matter disclosed under compulsion or without opportunity to claim privilege. Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (1) compelled erroneously, or (2) made without opportunity to claim the privilege.

RULE 512 COMMENTARY

This rule is identical with the U.S. Supreme Court proposal for Rule 512, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975). The original Advisory Committee's Note said: "Confidentiality, once destroyed, is not susceptible of restoration, yet some measure of repair may be accomplished by preventing use of the evidence against the holder of the privilege. The remedy of exclusion is therefore made available...." Rejecting the argument that the holder of the privilege should resist erroneous compulsion by exhausting all remedies, including appeal from a judgment of contempt, the Note explained: "[T]his exacts of the holder greater fortitude in the face of authority than ordinary individuals are likely to possess, and assumes unrealistically that a judicial remedy is always available." This rule also resembles Uniform Rule of Evidence 511.Rule 106 Remainder of or related writings or recorded statements. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

RULE 106 COMMENTARY

This rule is identical with Fed. R. Evid. 106.

The rule incorporates the common law doctrine of completeness, see McCormick §56. As the Hawaii Supreme Court said in Holstein v. Young, 10 H. 216, 220 (1896), a party cannot "utilize so much of this evidence as will serve his turn and reject the remainder." Cf. HRCP 32(a)(4), which provides: "If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced."

The Advisory Committee's Note to Fed. R. Evid. 106 points out: "The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial."Rule 704 Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

RULE 704 COMMENTARY

This rule is identical with Fed. R. Evid. 704. It abolishes the common-law rule disallowing testimony upon an "ultimate issue" in the case of trial.

Rejection of the "ultimate issue" ban is consistent with recent actions in a majority of the states, see McCormick §12. Determination of what is or is not an "ultimate issue" rendered the rule difficult to apply in practice; undue restrictiveness in its application often deprived the jury of useful information; the necessity for framing testimony in such a way that it does not violate the rule often produced awkward and confusing circumlocutions; and the usual justification for the ban, that such testimony invades the province of the jury, was of questionable logical validity in any event. See McCormick, supra; 7 Wigmore, Evidence §§1920, 1921.

Prior to the adoption of this rule Hawaii adhered to the "ultimate issue" exclusion, see Friedrich v. Department of Transportation, 60 H. 32, 586 P.2d 1037 (1978); Sherry v. Asing, 56 H. 135, 147, 531 P.2d 648, 657 (1975); Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 412 P.2d 669 (1966).

The abolition of the "ultimate issue" rule does not leave the court without safeguards. First, the present rule requires that the testimony be "otherwise admissible." Second, under the limitations of Rules 701 and 702 supra, opinion testimony must be helpful to the trier of fact. Third, under Rule 705 infra, the court at its discretion may require prior disclosure of the underlying facts or data upon which the opinion is based. Finally, under Rules 403 and 703 supra, the court has discretion to exclude the testimony entirely if it is prejudicial, confusing, misleading, unnecessarily cumulative, or lacking in trustworthiness. As the Advisory Committee's Note to Fed. R. Evid. 704 puts it:

These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have the capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed.Rule 702 Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.

RULE 702 COMMENTARY

This rule is identical with Fed. R. Evid. 702 except for the deletion of a comma after the word "education."

The rule liberalizes the traditional common law stricture limiting expert testimony to "some science, profession, business or occupation ... beyond the ken of the average layman," McCormick §13. Hawaii decisions have tended to adhere to the traditional limitation, e.g., State v. Smith, 59 H. 565, 583 P.2d 347 (1978), where the court allowed expert medical testimony regarding the effects of LSD on human beings. Noting that the "allowance or disallowance of the testimony of an expert witness is addressed to the sound discretion of the trial court," the court in Smith established two preconditions for the receipt for expert testimony: "first, the subject matter of the inquiry must be of such a character that only persons of skill, education or experience in it are capable for forming a correct judgment as to any facts connected therewith and second, the testimony must be of a nature to aid the jury." 59 H. at 569, 583 P.2d at 350. Rule 702 requires only that the testimony be of assistance to the trier of fact. The Advisory Committee's Note to Fed. R. Evid. 702 recommends, as the test for admissibility, "whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." So understood, the shift is in degree only.

The rule also sets a broad standard with respect to the scope of expert testimony. The traditional limitation to scientific, professional, or technical matters is expanded to include "other specialized knowledge" helpful to the trier of fact. Consistent with this, the determination of an expert's qualifications is similarly broad, admitting as an expert a person qualified "by knowledge, skill, experience, training, or education."

Committing the determination of expert qualifications to the discretion of the court is consistent with State v. Torres, 60 H. 271, 277, 589 P.2d 83, 87 (1978), where the court said:

[T]he determination of whether or not a witness is qualified as an expert in a particular field is largely within the discretion of the trial judge and, as such, will not be upset absent a clear abuse of discretion.

See also State v. Murphy, 59 H. 1, 575 P.2d 448 (1978); City and County of Honolulu v. Bonded Investment Co., Ltd., 54 H. 385, 507 P.2d 1084 (1973).

Determination by the court that a witness qualifies as an expert is binding upon the trier of fact only as this relates to admissibility of the expert's testimony. The trier of fact may nonetheless consider the qualifications of the witness in determining the weight to be given to his testimony. See Territory v. Adelmeyer, 45 H. 144, 363 P.2d 979 (1961).

RULE 702 SUPPLEMENTAL COMMENTARYRule 605 Competency of judge as witness. The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

RULE 605 COMMENTARY

This rule is identical with Fed. R. Evid. 605, the Advisory Committee's Note to which says:

The solution here presented is a broad rule of incompetency, rather than such alternatives as incompetency only as to material matters, leaving the matter to the discretion of the judge, or recognizing no incompetency. The choice is the result of inability to evolve satisfactory answers to questions which arise when the judge abandons the bench for the witness stand. Who rules on objections? Who compels him to answer? Can he rule impartially on the weight and admissibility of his own testimony? Can he be impeached or cross-examined effectively? Can he, in a jury trial, avoid conferring his seal of approval on one side in the eyes of the jury? Can he, in a bench trial, avoid an involvement destructive of impartiality? The rule of general incompetency has substantial support.Rule 407 Subsequent remedial measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving dangerous defect in products liability cases, ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

RULE 407 COMMENTARY

This rule is similar to Fed. R. Evid. 407, the Advisory Committee's Note to which points out: "The rule incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault.... The ... ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees, and the language of the present rule is broad enough to encompass all of them."

This rule is limited strictly to exclusion of such evidence when offered as proof of negligence or culpable conduct. The second sentence of the rule lists some of the other purposes for which this evidence may be admitted. The rule varies from Fed. R. Evid. 407 in the addition of "dangerous defect in products liability cases" as one permissible purpose for which remedial measures may be admitted. This codifies the result in Ault v. International Harvester Co., 117 Cal. Rptr. 812, 815-16, 528 P.2d 1148, 1151-52 (1975), where the court held that the rule barring evidence of subsequent repairs should not apply in a products liability case. The Ault court reasoned as follows:

While [the traditional rule] may fulfill this anti-deterrent function [of encouraging, or at least not discouraging, the making of repairs by defendants] in the typical negligence action, the provision plays no comparable role in the products liability field....

The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement.... In short, the purpose of [the traditional rule] is not applicable to a strict liability case and hence its exclusionary rule should not be gratuitously extended to that field.

In Hawaii, under Stewart v. Budget Rent-a-Car Corp., 52 H. 71, 75, 470 P.2d 240, 243 (1970), a manufacturer, seller, or lessor is strictly liable in products liability cases provided there is proof of "a defective product which is dangerous to the user or consumer or to his property." Evidence of subsequent remedial measures is admissible under this rule to prove such a defect.Rule 1006 Summaries. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

RULE 1006 COMMENTARY

This rule is identical with Fed. R. Evid. 1006, the Advisory Committee's Note to which says: "The admission of summaries of voluminous books, records, or documents offers the only practicable means of making their contents available to judge and jury."Rule 802 Hearsay rule. Hearsay is not admissible except as provided by these rules, or by other rules prescribed by the Hawaii supreme court, or by statute.

RULE 802 COMMENTARY

This rule is identical with Fed. R. Evid. 802, except for the substitution of the phrase "by the Hawaii supreme court or by statute" for the federal rule formulation, "by the Supreme Court pursuant to statutory authority or by Act of Congress," and the addition of a comma after "rules" to increase clarity.

The exclusionary rule does not apply to statements that fall under any of the various hearsay exceptions categorized in Rules 802.1, 803, and 804. Another important limitation to the rule is the provision excepting rules prescribed by the Hawaii Supreme Court. Some examples of this exception are HRCP 4(g), allowing proof of service by affidavit; HRCP 43(e), allowing affidavits on a motion based on facts not appearing of record; HRCP 56, allowing affidavits in summary judgment proceedings; and HRCP 65(b), allowing showing by affidavit for a temporary restraining order.

The Hawaii Supreme Court has frequently and routinely affirmed the truism that hearsay is inadmissible unless it qualifies under a hearsay exception, e.g., State v. Bannister, 60 H. 658, 660, 594 P.2d 133, 134 (1979). The rationale, noted the Bannister court, is that "the trier of fact is unable to test the [declarant's] trustworthiness."Rule 1005 Public records. The contents of a public record, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

RULE 1005 COMMENTARY

This rule is similar to Fed. R. Evid. 1005 in intent. The "public records" covered are those specified in Rule 1001(5) supra. Since production of original public records would be burdensome to both proponents and public officials, numerous statutes, e.g., Hawaii Rev. Stat. §502-82 (1976) (recorded instruments of conveyance) dispense with such a requirement. In this instance, however, a distinct preference for certified or compared copies is expressed.Rule 603.1 Disqualifications. A person is disqualified to be a witness if the person is (1) incapable of expressing oneself so as to be understood, either directly or through interpretation by one who can understand the person, or (2) incapable of understanding the duty of a witness to tell the truth.

RULE 603.1 COMMENTARY

The intent of this rule, which is similar to Cal. Evid. Code §701, is to complement Rule 601 supra, and to require disqualification of witnesses whose incapacity either to articulate in an understandable fashion or to understand the truthtelling obligation renders their testimony valueless.

Under this rule the competency of a witness is a matter for determination by the court. Competency has traditionally embodied a level of threshold capacity "to understand the oath and to perceive, recollect, and communicate that which he is offered to relate." Law Revision Comm'n Comment to Cal. Evid. Code §701. Capacity to perceive and to recollect are implicit in Rule 602's personal knowledge requirement. This rule covers the oath and the ability to communicate, matters which may be of concern in cases of youthful or mentally infirm witnesses.

This rule generally restates existing Hawaii law. A superseded statute, Hawaii Rev. Stat. §621-16 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §50; am L 1972, c 104, §1(k)), provided that the court could "receive the evidence of any minor; provided, that the evidence of the minor is given upon his affirmation to tell the truth...; provided also, that no such evidence shall in any case be received unless it is proved to the satisfaction of the court ... that the minor perfectly understands the nature and object of the affirmation...." To the extent that the previous law required a "perfect" understanding, the current rule effects a liberalization of the competency standard for children. In Republic v. Ah Wong, 10 H. 524, 525 (1896), the court said: "There is no precise age within which children are excluded from testifying. Their competency is to be determined, not by their age, but by the degree of their knowledge and understanding."

In Territory v. Titcomb, 34 H. 499, 502 (1938), the court announced that "the proper test must always be, does the lunatic understand what he is saying, and does he understand the obligation of an oath?.... [I]f he can stand the test proposed, the jury must determine all the rest." Rule 603.1 is consistent with the Ah Wong and Titcomb decisions.Rule 610 Religious beliefs or opinions. Evidence of beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

RULE 610 COMMENTARY

This rule is identical with Fed. R. Evid. 610, the Advisory Committee's Note to which says:

While the rule forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature, an inquiry for the purpose of showing interest or bias because of them is not within the prohibition. Thus disclosure of affiliation with a church which is a party to the litigation would be allowable under the rule.Rule 1007 Testimony or written admission of party. Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by the party's written admission, without accounting for the nonproduction of the original.

RULE 1007 COMMENTARY

This rule is identical with Fed. R. Evid. 1007. It requires that the admission of the party-opponent be in the form of testimony or in writing, and thus follows the suggestion contained in McCormick §242. In addition, as the Advisory Committee's Note to Fed. R. Evid. 1007 points out, "[t]he limitation, of course, does not call for excluding evidence of an oral admission when nonproduction of the original has been accounted for and secondary evidence generally has become admissible. Rule 1004 supra."Rule 511 Waiver of privilege by voluntary disclosure. A person upon whom these rules confer a privilege against disclosure waives the privilege if, while holder of the privilege, the person or the person's predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is a privileged communication.

RULE 511 COMMENTARY

This rule closely resembles Uniform Rule of Evidence 510. The sole justification for any rule of privilege is protection of a personal right of confidentiality that is recognized to be of greater societal importance than the principle of free disclosure of all relevant evidence in a judicial proceeding. Any intentional disclosure by the holder of the privilege defeats this purpose and eliminates the necessity for the privilege in that instance. Consistent with this, waiver of privilege is generally absolute. Once confidentiality has been destroyed by intentional disclosure, the holder of the privilege may not reinvoke it, and the evidence is as admissible as if no privilege had initially existed.

Hawaii courts have recognized the principle of waiver of privilege by voluntary disclosure, see McKeague v. Freitas, 40 H. 108 (1953); Territory v. Cabrinha, 24 H. 621 (1919); Takamori v. Kanai, 11 H. 1 (1897).Rule 706 Court-appointed experts. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that a particular expert witness was appointed by the court.

RULE 706 COMMENTARY

Fed. R. Evid. 706 purports to govern the appointment and compensation of expert witnesses. It also contains a subdivision (c) entitled, "Disclosure of appointment," which is similar to this rule. The Advisory Committee's Note to the federal rule points out that a trial judge has inherent power to appoint an expert witness, and defends subdivision (c) as "essential if the use of court appointed experts is to be fully effective."

Hawaii judges are empowered to appoint experts of their own choosing by HRCrP 28(a) and by Kamahalo v. Coelho, 24 H. 689 (1919). This rule does not address appointment or compensation because those matters are more appropriately dealt with in court rules than in rules of evidence.Rule 408 Compromise, offers to compromise, and mediation proceedings. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, or (3) mediation or attempts to mediate a claim which was disputed, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations or mediation proceedings is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation proceedings. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

RULE 408 COMMENTARY

This rule is identical with Fed. R. Evid. 408. The rule has been accepted in Hawaii, see First Bank of Hilo v. Maguire, 25 H. 43, 49-50 (1919); HRCP 68.

RULE 408 SUPPLEMENTAL COMMENTARY

The Act 119, Session Laws 1989 amendment added paragraph (3) relating to mediation. The federal note does not specifically address mediation.Rule 615 Exclusion of witnesses. At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

RULE 615 COMMENTARY

This rule is identical with Fed. R. Evid. 615, the Advisory Committee's Note to which points out that "the efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion." See 6 Wigmore §§1837-1841 (Chadbourn rev. 1976); Harkins v. Ikeda, 57 H. 378, 557 P.2d 788 (1976); State v. Leong, 51 H. 581, 583, 465 P.2d 560, 562 (1970).

The authorities differ, however, on whether such exclusion is subject to judicial discretion or is mandatory on a motion of any party. The present rule adopts the latter position. This modifies prior Hawaii case law, which has held that exclusion of witnesses is discretionary. Hawaiian Ocean View Estates v. Yates, 58 H. 53, 564 P.2d 436 (1977); Yoshitomi v. Kailua Tavern, Ltd., 39 H. 93, 98 (1951).

The present rule does not address the question of the appropriate judicial penalty in the event of violation by a witness of an exclusion order, as this is a procedural rather than an evidentiary concern. However, the Hawaii Supreme Court addressed this point and held in Yoshitomi that the trial court's refusal to admit the testimony of a witness who had disobeyed the exclusion order was within the scope of sound judicial discretion. 39 H. at 98-99. In Leong, however, the court distinguished Yoshitomi by implication, holding that the trial court's refusal in a criminal case to admit the testimony of a defense witness who had violated the exclusion rule constituted reversible error, violating the defendant's "constitutional right to have witnesses testify in his favor." 51 H. at 586, 465 P.2d at 562-63.[Rule 409.5] Admissibility of expressions of sympathy and condolence. Evidence of statements or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule.

RULE 409.5 COMMENTARY

This rule, shielding expressions of "sympathy, commiseration, or condolence", resembles measures recently adopted in several sister states. See, e.g., CA Evid. Code §1160, excluding expressions of "sympathy or a general sense of benevolence". The rule favors expressions of sympathy as embodying desirable social interactions and contributing to civil settlements, and the evidentiary exclusion recognizes that the law should "facilitate or, at least, not hinder the possibility of this healing ritual". Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460, 474 (2003). The Hawaii legislature also stated: "Your committee finds it appropriate to allow individuals and entities to express sympathy and condolence without the expression being used ... to establish civil liability". Senate Standing Committee Report No. 1131, March 21, 2007.

Whether a challenged utterance amounts to an expression of sympathy or an acknowledgment of fault will be entrusted to the sound discretion of the trial court under Rule 104(a). In making this determination, the court could consider factors such as the declarant's language, the declarant's physical and emotional condition, and the context and circumstances in which the utterance was made.Rule 1008 Functions of court and jury. When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (1) whether the asserted writing ever existed, or (2) whether another writing, recording, or photograph produced at the trial is the original, or (3) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

RULE 1008 COMMENTARY

This rule is identical with Fed. R. Evid. 1008. Most preliminary questions of fact are addressed to the court under Rule 104(a). The issues reserved for the jury by this rule are considered to be related to "the merits of the controversy," see Fed. R. Evid. 1008, Advisory Committee's Note. See Rule 104(b) supra.Rule 507 Political vote. Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted pursuant to chapter 11, by secret ballot unless the vote was cast illegally.

RULE 507 COMMENTARY

This rule is similar to Uniform Rule of Evidence 506 and to the unenacted U.S. Supreme Court proposal for Rule 507, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975). The Advisory Committee's Note to proposed Rule 507 pointed out: "Secrecy in voting is an essential aspect of effective democratic government, insuring free exercise of the franchise and fairness in elections. Secrecy after the ballot has been cast is as essential as secrecy in the act of voting."

The present rule applies only if the election in question was "political [and] conducted pursuant to chapter 11 [of the Hawaii Rev. Stat. (1976)]." The scope is accordingly governed by Hawaii Rev. Stat. §11-3 (1976): "This chapter shall apply to all elections, primary, special primary, general, special general, special, or county, held in the State." Provision in the rule for an exception in the event of an illegally cast vote is consistent with the law of election offenses and crimes, Hawaii Rev. Stat. ch. 19 (1976).Rule 806 Attacking and supporting credibility of declarant. When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

RULE 806 COMMENTARY

This rule is identical with Fed. R. Evid. 806 except that the phrase, "or a statement defined in Rule 801(d)(2)(C), (D), or (E)," is omitted as superfluous, inasmuch as these categories of party-opponent admissions are treated in these rules as hearsay exceptions under Rule 803(a) supra. As the Advisory Committee's Note to Fed. R. Evid. 806 puts it: "The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified."Rule 305 Prima facie evidence. A statute providing that a fact or a group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this article unless the statute expressly provides that such prima facie evidence is conclusive.

RULE 305 COMMENTARY

The purpose of this rule is to indicate the construction that should be given to the large number of provisions, scattered throughout the Hawaii Rev. Stat., which state that a fact, or a group of facts, is "prima facie" evidence of another fact. See, e.g., Hawaii Rev. Stat. §560:1-107(1) (1976), making a certified or authenticated copy of a death certificate prima facie evidence of the fact, place, date and time of death and the identity of the decedent; §622-31, making a written finding of "presumed death" prima facie evidence of the death of the person named; §572-13(c), making a certified copy of a certificate of marriage prima facie evidence of the fact of such marriage; §575-2, making the absence of a husband or wife for six continuous months prima facie evidence of desertion; §634-22, making a record or affidavit of process prima facie evidence of all that it contains.

A number of the statutory prima facie evidence provisions contain express language to indicate whether the particular provision affects the burden of proof or only the burden of producing evidence. E.g., Hawaii Rev. Stat. §584-4(b) (1976), which provides that prima facie evidence of paternity may be overcome only by "clear and convincing evidence"; Hawaii Rev. Stat. §701-117 (1976), which provides that contrary evidence that raises "a reasonable doubt in the mind of the trier of fact" is sufficient. Absent such explicit statutory clarification, judicial determination will be required to determine whether a statutory provision creates a presumption affecting the burden of proof or the burden of producing evidence consistent with the criteria established in Rules 303(a) and 304(a) supra.

A few statutes establish either a conclusive presumption, e.g., Hawaii Rev. Stat. §76-51 (1976), or irrebuttable prima facie evidence, e.g., Hawaii Rev. Stat. §480-22(a) (1976). These are conclusive presumptions as defined in Rule 301(2)(A) and, as such, they are not presumptions within the intent of this article and are expressly excluded from the scope of this rule.Rule 411 Liability insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

RULE 411 COMMENTARY

This rule is identical with Fed. R. Evid. 411. The virtual unanimity of judicial rejection of evidence that a party is or is not insured against liability is soundly based on both legal and policy considerations. Foremost among these is the question of relevance. The fact that a party to an action does or does not carry liability insurance provides no logical basis for an inference of negligence or lack of negligence. Of equal concern is the danger that knowledge of the existence or the lack of liability insurance coverage might bias the jurors and influence them to make a decision on irrelevant and improper grounds. See Carr v. Kinney, 41 H. 166, 176 (1955); Gilliam v. Gerhardt, 34 H. 466 (1938).(1973).

Determination by the court that a witness qualifies as an expert is binding upon the trier of fact only as this relates to admissibility of the expert's testimony. The trier of fact may nonetheless consider the qualifications of the witness in determining the weight to be given to his testimony. See Territory v. Adelmeyer, 45 H. 144, 363 P.2d 979 (1961).

RULE 702 SUPPLEMENTAL COMMENTARY

The Act 191, Session Laws 1992 amendment added the second sentence to this rule. The problem with Fed. R. Evid. 702, as adopted in 1975, and with original Haw. R. Evid. 702, patterned thereafter, was that neither of these rules nor their commentaries mentioned Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), establishing a requirement that a novel scientific development or technique "have gained general acceptance in the particular field in which it belongs" as a condition of admissibility in connection with expert testimony. The general-acceptance standard of Frye was widely recognized as a reliability check of emerging scientific developments and techniques.

The criterion of Rule 702, that expert testimony "assist the trier of fact to understand the evidence," necessarily incorporates a reliability factor and thus countenances a Frye-like inquiry as an ingredient of the reliability determination. This is the holding of State v. Montalbo, 73 H. 130, 828 P.2d 1274 (1992), observing that Rule 702's assistance requirement contemplates expert testimony based upon "a sound factual foundation...an explicable and reliable system of analysis...[and having the capacity to] add to the common understanding of the jury." The reliability determination "could include the Frye test," id., but is not so limited: "[I]t is possible that a court could also consider the scientific procedure itself, as well as other evidence of the procedure's reliability." Id. Montalbo thus anticipated the present Rule 702 amendment, thereby confirming the drafters' belief that the amendment makes explicit what was formerly implicit in the assistance criterion. General acceptance in the scientific community is highly probative of the reliability of a new technique but should not be used as an exclusive threshold for admissibility determinations.ous authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.

McCormick agrees: "It is reasonable to assume that an expert in a science is competent to judge the reliability of statements made to him by other investigators or technicians." McCormick §15.

There are several safeguards against untrustworthy opinions. The facts or data must be established as reliable in the particular field. Therefore, concluded the Advisory Committee's Note to Fed. R. Evid. 703, a court would not be justified in "admitting in evidence the opinion of an 'accidentologist' as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied." Second, the present modification of the federal rules formulation provides expressly for exclusion at the discretion of the court. Finally, Rule 705 infra, allows the court at its discretion to require prior disclosure of facts or data upon which an opinion or inference is based.

A number of other jurisdictions have adopted a similar rule, see, e.g., Cal. Evid. Code §801(b).
Haw. Rev. Stat. § 622-54 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-54
§§622-54 and 622-55 REPEALED.
Status: repealed

§§622-54 and 622-55 REPEALED. L 1980, c 164, §9.
Haw. Rev. Stat. § 621C-5 — HI Code / Division 4 / Title 33 / Chapter 621C / Section 621C-5
Penalty.
Status: in_force

Any witness granted immunity hereunder who fails or refuses to testify or produce other information may be punished by the court for contempt, provided that the witness may be charged with and convicted of the other offense notwithstanding the fact that the witness has been punished by the court for contempt.
Haw. Rev. Stat. § 621-8 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-8
Attendance roll; parking violations exemption.
Status: in_force

(a) The clerk of each circuit court shall keep an attendance roll, in which shall be entered the name of each witness subpoenaed for the prosecution in criminal cases in the circuit, the name of each witness subpoenaed for the defendant at the expense of the State under order of the court, where each witness was subpoenaed or summoned, the date of appearance, the date of discharge, the number of days' attendance with the dates thereof, the place of residence of the witness and the number of miles necessarily traveled by the witness to the place of holding court. For all other witnesses in civil and criminal cases, including cases in family court, the clerk of each court shall keep an attendance roll in which shall be entered the name of each witness subpoenaed or summoned, each date the witness appeared, and the date of discharge.

(b) All witnesses summoned or subpoenaed to appear in any circuit court, family court, or district court case, as well as all court interpreters who appear at the request of the circuit court, family court, or district court, shall be exempt from any prosecution, penalty, or fine resulting from a parking violation for an expired meter committed in connection with the witness or court interpreter appearing in court; provided that the witness or court interpreter shall present any parking citation received during this time to the clerk of the court and the clerk shall verify that the witness or court interpreter was present at the time the citation was received. The supreme court shall adopt rules necessary to effect this section. [L 1907, c 53, §2; RL 1925, §2561; RL 1935, §3817; RL 1945, §9828; am imp L 1945, c 35, §1; RL 1955, §222-8; HRS §621-8; am L 1972, c 104, §1(f); am L 1988, c 281, §2; am L 1993, c 114, §1; am L 2011, c 42, §1]
Haw. Rev. Stat. § 624D-3 — HI Code / Division 4 / Title 33 / Chapter 624D / Section 624D-3
Issuance of subpoena.
Status: in_force

(a) To request issuance of a subpoena under this section, a party shall submit a foreign subpoena to a clerk of court in the circuit in which discovery is sought to be conducted in this State. A request for the issuance of a subpoena under this chapter does not constitute an appearance in the courts of this State.

(b) When a party submits a foreign subpoena to a clerk of court in this State, the clerk, in accordance with that court's procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

(c) A subpoena under subsection (b) shall:

(1) Incorporate the terms used in the foreign subpoena; and

(2) Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel. [L 2012, c 17, pt of §1]
Haw. Rev. Stat. § 624-24.5 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-24.5
Compelling attendance of witness; commission for taking testimony.
Status: in_force

(a) When the taking of a deposition is authorized by statute or rule of court, the attendance of the witness and the answering of questions may, except as otherwise provided, be compelled:

(1) By any court when the action or proceeding is pending before it or the taking of the deposition has been ordered by it;

(2) By the circuit court of the circuit in which the deposition is being taken, when the action or proceeding is pending before, or the taking of the deposition has been ordered by, another circuit court or an arbitrator or other person, other than a court;

(3) By the district court of the circuit in which the deposition is being taken, when the action or proceeding is pending before, or the taking of the deposition has been ordered by, another district court.

(b) When the taking of a deposition outside the State is authorized by statute or rule of court and the issuance of a commission or letters rogatory is appropriate, the same may be issued by any court before which the action or proceeding is pending, or which has ordered or given leave for the taking of the deposition. [L 1972, c 143, §1(b)]
Haw. Rev. Stat. § 624-27 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-27
Subpoena to witness.
Status: in_force

Where a commission to take testimony within the State has been issued from a court without the State, or where a notice has been given or any other proceeding has been taken for the purpose of taking testimony within the State, pursuant to the laws or practice of the state or jurisdiction wherein the deposition is to be used for purposes of discovery or as evidence, including the United States if it is a federal proceeding, the circuit court, in a proper case, on the presentation of a verified petition shall order the issuance of a subpoena to any witness, commanding the witness to appear before the commissioner, officer or person named or designated in the commission, notice or other paper, at a time and place specified in the subpoena, to testify in the same manner as is provided by the rules of court relating to depositions for use in [the] State. If any witness fails to obey the subpoena, or refuses to testify, or to produce a book or paper pursuant to a subpoena or to subscribe the witness' deposition, the court issuing the subpoena, if it is determined that a contempt has been committed, may prescribe the punishment as in the case of a recalcitrant witness in a circuit court in the State, and may make such additional or other orders as would be proper if the deposition were for use in the State.
Haw. Rev. Stat. § 621-6 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-6
REPEALED.
Status: in_force

L 1972, c 104, §1(t).
Haw. Rev. Stat. § 621-14 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-14
§§621-14 to 621-25 REPEALED.
Status: repealed

§§621-14 to 621-25 REPEALED. L 1980, c 164, §§2 to 4.
Haw. Rev. Stat. § 621-27 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-27
REPEALED.
Status: in_force

L 1972, c 104, §1(t).
Haw. Rev. Stat. § 622-59 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-59
Health care data discovery.
Status: in_force

Where health care data submitted to either a public or private organization for the purpose of aggregate treatment outcomes, trends, or cost analysis, or public reporting, that identifies or reasonably could be used to identify specific physicians, health care professionals, or individual patients, that portion of the data shall not be subject to discovery or admission into evidence in any civil or administrative proceeding involving the organization. Information, documents, or records made in the regular course of business by a hospital or other provider of health care are not to be construed as immune from discovery or use in any civil or administrative proceeding merely because they were presented to an organization for aggregate analysis.
Haw. Rev. Stat. § 624-42 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-42
§§624-42 to 624-44 REPEALED.
Status: repealed

§§624-42 to 624-44 REPEALED. L 1972, c 143, §1(j).
Haw. Rev. Stat. § 624-45 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-45
Costs.
Status: in_force

The applicant or plaintiff shall pay all costs of all proceedings under section 624-41, but such disbursements ultimately may be allowed in taxation of costs as in the case of disbursements for depositions.
Haw. Rev. Stat. § 621-4 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-4
Compelling attendance.
Status: in_force

Upon nonattendance of witnesses duly summoned, the service of the writ being proved, the court shall have summary power to cause their attendance and to punish them for contempt.
Haw. Rev. Stat. § 621-12 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-12
Oath; affirmation.
Status: in_force

Every court and person having authority to hear, receive, and examine evidence may administer the following oath-affirmation to all witnesses legally called before them: Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth?
Haw. Rev. Stat. § 624-25 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-25
Discovery.
Status: in_force

A civil action in the nature of a bill for discovery may be brought according to the usages and principles of courts of equity, unless the matter is governed by the rules of court.
Haw. Rev. Stat. § 621C-2 — HI Code / Division 4 / Title 33 / Chapter 621C / Section 621C-2
Procedures.
Status: in_force

If a person has been or may be subpoenaed to testify or to produce a record, document, or other object in an official proceeding as described in section 621C-1, a judge of a circuit court may, upon application by the attorney general or county prosecutor, issue an order requiring the person to testify or to produce a record, document, or other object, notwithstanding the person's refusal to do so on the basis of the person's privilege against self-incrimination. The order may be issued prior to the assertion of the privilege against self-incrimination but shall not be effective until the witness asserts the witness' privilege against self-incrimination and the presiding officer communicates the order to the witness. The application and order shall specify whether the immunity granted under this chapter is use immunity as set forth in section 621C-3 or transactional immunity as set forth in section 621C-4.
Haw. Rev. Stat. § 624D — HI Code / Division 4 / Title 33 / Chapter 624D / Section 624D
‑1] Short title.
Status: in_force

[§624D‑1] Short title. This chapter may be cited as the Uniform Interstate Depositions and Discovery Act.
Haw. Rev. Stat. § 624D-2 — HI Code / Division 4 / Title 33 / Chapter 624D / Section 624D-2
Definitions.
Status: in_force

In this chapter:

"Foreign jurisdiction" means a state other than this State.

"Foreign subpoena" means a subpoena issued under authority of a court of record of a foreign jurisdiction.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

"Subpoena" means a document, however denominated, issued under authority of a court of record requiring a person to:

(1) Attend and give testimony at a deposition;

(2) Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or

(3) Permit inspection of premises under the control of the person. [L 2012, c 17, pt of §1]
Haw. Rev. Stat. § 621-7 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-7
Fees; criminal cases.
Status: in_force

(a) Except as provided in subsection (c), every witness legally required to attend a state court or grand jury in any criminal case, other than a public officer or employee, shall be entitled to $40 for each day's attendance and a reasonable mileage fee to be established pursuant to rules adopted by the judiciary for each mile actually and necessarily traveled on the ground each way, including travel to and from the nearest airport when required to travel from another island or from outside the State.

In addition to witness' fees, every witness who attends a state court from:

(1) Outside the State shall be entitled to the actual round-trip cost of plane travel, plus $250 per twenty-four-hour day; or

(2) Any island in the State other than that on which the court holds session shall be entitled to the actual round-trip cost of plane travel, plus $55 per twenty-four-hour day; provided that when the witness is required to stay overnight, the witness shall be entitled to an additional $195 per twenty-four-hour day.

Any per diem payment made pursuant to this subsection shall cover all personal expenses, including board and lodging, and shall be computed on the basis of quarter-day periods of time.

(b) Any police officer or other public officer or employee (except the county attorney, prosecuting attorney, or deputy county attorney or deputy prosecuting attorney), who attends a state court as a witness from a district other than that in which the court is holding session, shall be allowed the police officer's, public officer's, or public employee's travel cost and mileage fees as provided in this section. A public officer or employee, if not salaried, shall receive witness fees.

(c) Every expert witness legally required to attend a state court or grand jury in any criminal case, other than a public officer or employee, shall be entitled to reasonable applicable fees for the testimony, consultation, and preparation associated with the expert witness' testimony and attendance in court.

In addition, every expert witness who attends a state court from:

(1) Outside the State shall be entitled to the actual round-trip cost of plane travel, plus $250 per twenty-four-hour day; or

(2) Any island in the State other than that on which the court holds session shall be entitled to the actual round-trip cost of plane travel, plus $55 per twenty-four-hour day; provided that when the expert witness is required to stay overnight, the expert witness shall be entitled to an additional $195 per twenty-four-hour day.

Any per diem payment made pursuant to this subsection shall cover all personal expenses, including board and lodging, and shall be computed on the basis of quarter-day periods of time.

(d) As used in this section, "expert witness" includes any witness subpoenaed on behalf of the State in a criminal case, or on behalf of a defendant at the expense of the State in a criminal case, who is subpoenaed for the witness' specialized knowledge, skill, experience, training, or education to assist a grand jury, trial jury, or judge to understand the evidence or determine a fact at issue in the case. [L 1907, c 53, §1; am L 1909, c 145, §1; RL 1925, §2560; am L 1925, c 23, §1; am L 1932 1st, c 13, §1; RL 1935, §3816; RL 1945, §9827; am L 1945, c 38, §1; RL 1955, §222-7; am L 1963, c 57, §1; HRS §621-7; am L 1972, c 104, §1(e); am L 1980, c 305, §1; gen ch 1985; am L 1989, c 176, §1; am L 2014, c 195, §2; am L 2016, c 159, §2; am L 2022, c 98, §1; am L 2025, c 153, §3]
Haw. Rev. Stat. § 626-2 — HI Code / Division 4 / Title 33 / Chapter 626 / Section 626-2
Effective date; applicability to future cases and pending cases.
Status: in_force

This chapter shall take effect on January 1, 1981.

The Hawaii Rules of Evidence in section 626-1 shall apply to actions, cases, and proceedings brought on or after January 1, 1981; provided that the rules shall also apply to further procedure in actions, cases, and proceedings then pending, except to the extent that application of the rules would not be feasible, or would work injustice, in which event former evidentiary rules or principles shall apply. [L 1980, c 164, pt of §1]
Haw. Rev. Stat. § 621-28 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-28
Accompaniment of children at judicial proceedings.
Status: in_force

A child less than fourteen years of age, involved in a judicial proceeding, including a grand jury proceeding, shall have the right to be accompanied by a parent, a victim-witness counselor, or other adult designated by the court. The accompanying person may be placed side by side with the child at the discretion of the presiding judge or court officer; provided that this position does not interfere with the proceedings of the court. The accompanying person shall not communicate in any manner with the child unless directed by the presiding judge or court officer.
Haw. Rev. Stat. § 621C-1 — HI Code / Division 4 / Title 33 / Chapter 621C / Section 621C-1
Self-incrimination claim precluded.
Status: in_force

If a person refuses, on the basis of the person's privilege against self-incrimination, to testify or produce a record, document, or other object in an official proceeding conducted under the authority of:

(1) A court or grand jury;

(2) An agency of the State; or

(3) Either house of the legislature, a joint committee of the two houses, or a committee or a subcommittee of either house;

and the presiding officer informs the person of an order issued under this chapter, the person may not refuse to comply with the order on the basis of the person's privilege against self-incrimination. [L 1978, c 212, pt of §2; gen ch 1985]
Haw. Rev. Stat. § 624D-6 — HI Code / Division 4 / Title 33 / Chapter 624D / Section 624D-6
Application to court.
Status: in_force

A motion to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under section 624D‑3 shall comply with the rules of court and statutes of this State and be submitted to the court in the circuit in which discovery is to be conducted.
Haw. Rev. Stat. § 624-1 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-1
§§624-1, 624-2, and 624-11 to 624-19 REPEALED.
Status: repealed

§§624-1, 624-2, and 624-11 to 624-19 REPEALED. L 1972, c 143, §1(j).
Haw. Rev. Stat. § 624-24 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-24
Arbitrators, etc.
Status: in_force

[(a)] An arbitrator or other person, other than a court, having authority to hear, receive and examine evidence, may order that the deposition of a witness be taken within the State, or by leave of a circuit court outside the State, for use as evidence in a pending civil matter, when the circumstances are such that it is probable that the witness will not be able to, or will not be compellable to, attend and give evidence before such person at the hearing. Except as otherwise provided, the deposition shall be taken and may be used in the same manner as is provided by the rules of court relating to depositions in civil actions in circuit courts.

[(b)] Nothing herein contained limits or affects any other power heretofore or hereafter conferred with respect to the taking of depositions. [L 1972, c 143, §1(a)]
Haw. Rev. Stat. § 622-44 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-44
§§622-44 and 622-45 REPEALED.
Status: repealed

§§622-44 and 622-45 REPEALED. L 1972, c 104, §2(r).
Haw. Rev. Stat. § 624-25.5 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-25.5
Proceedings and records of peer review committees and quality assurance committees.
Status: in_force

(a) As used in this section:

"Case review forum" means any meeting convened by the administrative or professional staff of a licensed hospital or clinic for the presentation and critique of cases for educational purposes.

"Health care review organization" means any organization that gathers and reviews information relating to the procedures and outcomes of health care providers and the care and treatment of patients for the purposes of evaluating and improving quality and efficiency of health care.

"Licensed health maintenance organization" means a health maintenance organization licensed in Hawaii under chapter 432D.

"Peer review committee" means a committee created by a professional society, or by the medical, dental, optometric, or administrative staff of a licensed hospital, clinic, health maintenance organization, preferred provider organization, or preferred provider network, whose function is to maintain the professional standards of persons engaged in its profession, occupation, specialty, or practice established by the bylaws of the society, hospital, clinic, health maintenance organization, preferred provider organization, or preferred provider network of the persons engaged in its profession, occupation, or area of specialty practice, or in its hospital, clinic, health maintenance organization, preferred provider organization, or preferred provider network.

"Preferred provider organization" or "preferred provider network" means a partnership, association, corporation, or other entity that delivers or arranges for the delivery of health services, and that has entered into a written service arrangement or arrangements with health professionals, a majority of whom are licensed to practice medicine or osteopathy.

"Professional society" or "society" means any association or other organization of persons engaged in the same profession, occupation, or a specialty within a profession or occupation, a primary purpose of which is to maintain the professional standards of the persons engaged in its profession, occupation, or specialty practice.

"Quality assurance committee" means:

(1) An interdisciplinary committee established by the board of trustees or administrative staff of a licensed hospital, clinic, long-term care facility, skilled nursing facility, assisted living facility, home care agency, hospice, health maintenance organization, preferred provider organization, preferred provider network providing medical, dental, or optometric care, or an authorized state agency whose function is to monitor and evaluate patient care to identify, study, and correct deficiencies in the health care delivery system, with a goal of reducing the risk of harm to patients, improving patient safety, or otherwise improving the quality of care delivered to patients; or

(2) An interdisciplinary committee composed of representatives of organizations described in paragraph (1) that is established collectively by the boards of trustees or administrative staff of these organizations, and whose function is to monitor and evaluate patient care to identify, study, and correct deficiencies in the health care delivery system, with a goal of reducing the risk of harm to patients, improving patient safety, or otherwise improving the quality of care delivered to patients.

(b) The department of health may establish quality assurance committees for the purpose of monitoring, improving, and evaluating patient care within the statewide trauma care systems. The proceedings of quality assurance committees authorized under this subsection shall not be subject to part I of chapter 92, and, for purposes of chapter 92F, the records of the proceedings shall be confidential.

(c) Neither the proceedings nor the records of peer review committees, quality assurance committees, or case review forums shall be subject to discovery. For the purposes of this section, "records of quality assurance committees" are limited to recordings, transcripts, minutes, summaries, and reports of committee meetings and conclusions contained therein. Information protected shall not include incident reports, occurrence reports, or similar reports that state facts concerning a specific situation, or records made in the regular course of business by a hospital or other provider of health care. Original sources of information, documents, or records shall not be construed as being immune from discovery or use in any civil proceeding merely because they were presented to, or prepared at the direction of, the committees. Except as hereinafter provided, no person in attendance at a meeting of a committee or case review forum shall be required to testify as to what transpired at the meeting. The prohibition relating to discovery or testimony shall not apply to the statements made by any person in attendance at the meeting who is a party to an action or proceeding the subject matter of which was reviewed at the meeting, or to any person requesting hospital staff privileges, or in any action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits.

(d) Information and data relating to a medical error reporting system that is compiled and submitted by a medical provider to a health care review organization for the purpose of evaluating and improving the quality and efficiency of health care, when done through a peer review committee or hospital quality assurance committee, shall not be subject to discovery.

For purposes of this subsection, the information and data protected shall include proceedings and records of a peer review committee, hospital quality assurance committee, or health care review organization that include recordings, transcripts, minutes, and summaries of meetings, conversations, notes, materials, or reports created for, by, or at the direction of a peer review committee, quality assurance committee, or a health care review organization when related to a medical error reporting system.

Information and data protected from discovery shall not include incident reports, occurrence reports, statements, or similar reports that state facts concerning a specific situation and shall not include records made in the regular course of business by a hospital or other provider of health care, including patient medical records. Original sources of information, documents, or records shall not be construed as being immune from discovery or use in any civil proceeding merely because they were reviewed or considered by a medical provider for submission to, or were in fact submitted to, a health care review organization.

(e) The prohibitions contained in this section shall not apply to medical, dental, or optometric society committees that exceed ten per cent of the membership of the society, nor to any committee if any person serves upon the committee when the person's own conduct or practice is being reviewed.

(f) The prohibitions contained in this section shall apply to investigations and discovery conducted by the Hawaii medical board, except as required by section 92-17, 453-8.7, or 663-1.7(e). [L 1971, c 207, §1; ren L 1972, c 143, §1(d); am L 1973, c 169, §1; am L 1975, c 170, §1; am L 1982, c 227, §5; gen ch 1985; am L 1989, c 354, §5 and c 373, §1; am L 1997, c 279, §1; am L 2004, c 54, §2; am L 2005, c 115, §2; am L 2008, c 9, §3; am L 2010, c 133, §2; am L 2011, c 176, §2]
Haw. Rev. Stat. § 624D-7 — HI Code / Division 4 / Title 33 / Chapter 624D / Section 624D-7
Application to pending actions.
Status: in_force

This chapter applies to requests for discovery in cases pending on April 12, 2012.

Revision Note

"April 12, 2012" substituted for "the effective date of this chapter".
Haw. Rev. Stat. § 622-57 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-57
Availability of medical records.
Status: in_force

(a) If a patient of a health care provider as defined in section 671‑1, requests copies of the patient's medical records, the copies shall be made available to the patient unless, in the opinion of the health care provider, it would be detrimental to the health of the patient to obtain the records. If the health care provider is of the opinion that release of the records to the patient would be detrimental to the health of the patient, the health care provider shall advise the patient that copies of the records will be made available to the patient's attorney upon presentation of a proper authorization signed by the patient.

(b) If an attorney for a patient asks a health care provider for copies of the patient's medical records and presents a proper authorization from the patient for the release of the information, complete and accurate copies of the records shall be given to the attorney within a reasonable time not to exceed ten working days.

(c) In the case of a deceased person, a personal representative of the deceased person's estate may obtain copies of or may authorize the health care provider to release copies of the deceased person's medical records upon presentation of proper documentation showing the personal representative's authority.

If no personal representative has been appointed, the deceased person's next of kin in order of superseding priority, without court order, may obtain copies of or may authorize the health care provider to release copies of the deceased person's medical records, except as otherwise provided in this subsection and subsections (d) and (e). A deceased person's next of kin possesses superseding priority when all kin ranked higher in the order listed in the definition of "deceased person's next of kin" are deceased or incapacitated. When there are multiple persons at the same level of superseding priority, all such persons shall be entitled to request and obtain the records. The person claiming to be next of kin of a deceased person and requesting the deceased person's medical records shall submit to the medical provider from whom the records are requested, an affidavit attesting to status as next of kin with superseding priority. The medical provider may rely upon the affidavit, and in so doing, shall be immune to any claims relating to release of the medical records.

(d) Notwithstanding applicable state confidentiality laws governing the following types of specially protected health information, a health care provider may honor, in whole or in part, a request by the deceased person's next of kin for release of medical records if the medical records of the deceased person contain references pertaining to any of the following types of specially protected health information:

(1) HIV infection, AIDS, or AIDS-related complex;

(2) Diagnosis or treatment of a mental illness; or

(3) Participation in a substance abuse treatment program.

(e) A health care provider shall refuse a request by the deceased person's next of kin for release of medical records if the deceased person had previously indicated to the medical provider in writing that the person did not wish to have medical records released to next of kin.

(f) Notwithstanding subsections (c) through (e), any medical records of a deceased person may be produced pursuant to a court order specifically compelling release.

(g) Reasonable costs incurred by a health care provider in making copies of medical records shall be borne by the requesting person.

(h) For the purposes of this section:

"Deceased person's next of kin" means a person with the following relationship to the deceased person:

(1) The spouse or reciprocal beneficiary;

(2) An adult child;

(3) Either parent;

(4) An adult sibling;

(5) A grandparent; and

(6) A guardian at the time of death.

"Personal representative" shall have the meaning provided in section 560:1-201. [L 1976, c 219, §15; am L 1984, c 150, §1; am L 2004, c 192, §1]
Haw. Rev. Stat. § 621-30 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-30
[ §621-30]Use of a facility dog.
Status: in_force

[ §621-30]Use of a facility dog. (a) For purposes of this section:

"Facility dog" means a dog that is a graduate of an assistance dog organization that is accredited by Assistance Dogs International or a similar internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations based on standards of excellence in all areas of assistance dog acquisition, training, and placement. A "facility dog" shall be specially trained to provide emotional support to witnesses testifying in judicial proceedings without causing a distraction during the proceedings.

"Vulnerable witness" means a witness whose ability to testify in a judicial proceeding will be hampered or ineffective without the assistance of a facility dog, for reasons including but not limited to intellectual or emotional disability, intimidation, or age.

(b) A court may permit the use of a facility dog in a judicial proceeding involving the testimony of a vulnerable witness if the court determines that there is a compelling necessity for the use of a facility dog to facilitate the testimony of the vulnerable witness.

(c) Before the use of a facility dog in a judicial proceeding, the moving party shall file a motion certifying to the court:

(1) The credentials of the facility dog;

(2) That the facility dog is adequately insured; and

(3) That a relationship has been established between the witness and the facility dog.

(d) To the extent necessary, the court may impose restrictions, or instructions to the jury, regarding the presence of the facility dog during the proceedings. [L 2016, c 178, §1]
Haw. Rev. Stat. § 621-10 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-10
Reporting daily.
Status: in_force

Every witness in a criminal case subpoenaed for the State or for a defendant by order of the court at the expense of the State shall, unless temporarily excused, report in person daily to the clerk of the circuit court from the time of the witness' appearance to the date of the witness' discharge and no per diem shall be allowed for any pay upon which attendance is not reported.
Haw. Rev. Stat. § 621-31 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-31
[ §621-31] Limitation on compellable testimony from journalists and newscasters; exceptions.
Status: in_force

[ §621-31] Limitation on compellable testimony from journalists and newscasters; exceptions. (a) A journalist or newscaster presently or previously employed by or otherwise professionally associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network, or digital news website shall not be required by a legislative, executive, or judicial officer or body, or any other authority having the power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise:

(1) The source, or information that could reasonably be expected to lead to the discovery of the identity of the source, of any published or unpublished information obtained by the person while so employed or professionally associated in the course of gathering, receiving, or processing information for communication to the public; or

(2) Any unpublished information obtained or prepared by the person while so employed or professionally associated in the course of gathering, receiving, or processing information for communication to the public.

(b) The limitation on compellable testimony established by this section may also be claimed by and afforded to any individual who can demonstrate by clear and convincing evidence that:

(1) The individual has regularly and materially participated in the reporting or publishing of news or information of substantial public interest for the purpose of dissemination to the general public by means of tangible or electronic media;

(2) The position of the individual is materially similar or identical to that of a journalist or newscaster, taking into account the method of dissemination;

(3) The interest of the individual in protecting the sources and unpublished information under subsection (a) is materially similar to the interest of the individuals referenced under subsection (a); and

(4) The public interest is served by affording the protections of this section in a specific circumstance under consideration.

(c) This section shall not apply if:

(1) Probable cause exists to believe that the person claiming the privilege has committed, is committing, or is about to commit a crime;

(2) The person claiming the privilege has observed the alleged commission of a crime; provided that the privilege granted by this section may be asserted if:

(A) The interest in maintaining the privilege granted by this section outweighs the public interest in disclosure; and

(B) The commission of the crime is the act of communicating or providing the information or documents at issue;

(3) There is substantial evidence that the source or information sought to be disclosed is material to the investigation, prosecution, or defense of a felony, or to a civil action for defamation, and the source or information sought is:

(A) Unavailable, despite exhaustion of reasonable alternative sources;

(B) Noncumulative; and

(C) Necessary and relevant to the charge, claim, or defense asserted;

(4) The information sought to be disclosed is critical to prevent serious harm to life or public safety; or

(5) The source consents to the disclosure of unpublished documents or other tangible materials provided by the source.

(d) No fine or imprisonment shall be imposed against a person claiming the privilege pursuant to this section for refusal to disclose information privileged pursuant to this section.

(e) The privilege described in this section may be claimed by journalists and newscasters as described in subsection (a) and individuals as described in subsection (b). The privilege shall not be claimed by persons who were the source of information. [L 2023, c 126, §2]
Haw. Rev. Stat. § 624-31 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-31
§§624-31 to 624-34 REPEALED.
Status: repealed

§§624-31 to 624-34 REPEALED. L 1972, c 143, §1(j).
Haw. Rev. Stat. § 621-26 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-26
Confessions, when admissible.
Status: in_force

No confession shall be received in evidence unless it is first made to appear to the judge before whom the case is being tried that the confession was in fact voluntarily made.

Revision Note

In section heading, comma added pursuant to §23G-15.
Haw. Rev. Stat. § 624D-4 — HI Code / Division 4 / Title 33 / Chapter 624D / Section 624D-4
Service of subpoena.
Status: in_force

A subpoena issued by a clerk of court under section 624D‑3 shall be served in compliance with rule 45(c) of the Hawaii rules of civil procedure.
Haw. Rev. Stat. § 626-1 — HI Code / Division 4 / Title 33 / Chapter 626 / Section 626-1
Enactment.
Status: in_force

The Hawaii Rules of Evidence as set forth in this section is enacted:
Haw. Rev. Stat. § 621-1 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-1
Subpoena, issue of.
Status: in_force

The clerks of the several courts shall issue writs of subpoena as provided by the rules of court or by statute. Except as otherwise provided, the clerks shall issue to any prosecuting officer, and to any party plaintiff or defendant, in any cause, civil or criminal, pending before such courts, or to the counsel of the party, writs of subpoena for witnesses, in blank, so that the names of the witnesses to be summoned may be inserted after the issuing of the writs.
Haw. Rev. Stat. § 626-3 — HI Code / Division 4 / Title 33 / Chapter 626 / Section 626-3
Inconsistent laws.
Status: in_force

If any other provision of law, including any rule promulgated by the supreme court, is inconsistent with this chapter, this chapter shall govern unless this chapter or such inconsistent provision of law specifically provides otherwise.
Haw. Rev. Stat. § 622-53 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-53
Affidavit accompanying medical records.
Status: in_force

(a) The medical records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:

(1) That the affiant is the duly authorized custodian of the medical records and has authority to certify the medical records;

(2) That the copy is a true copy of all the medical records described in the subpoena; and

(3) That the medical records were prepared by the personnel of the medical facility, staff physicians, or persons acting under the control of either, in the regular course of business at or near the time of the act, condition, or event.

(b) The affidavit shall be notarized by a notary public, who may be the custodian of the medical records; except where the custodian or the custodian's employer is a party to the cause of action or the medical facility is the place where the cause of action is alleged to have arisen and for which the subpoena duces tecum is being served.

(c) If none of the medical records described in the subpoena, or only a part thereof, are available, the custodian shall so state in the affidavit, and deliver the affidavit and such medical records as are available in the manner provided in section 622-52. [L 1971, c 139, pt of §1; am L 1972, c 104, §2(v); gen ch 1985]

Revision Note

Pursuant to §23G-15, in:

(1) Subsection (a)(1), punctuation changed; and

(2) Subsection (a)(2), punctuation changed and "and" added after ending punctuation.
Haw. Rev. Stat. § 624-28 — HI Code / Division 4 / Title 33 / Chapter 624 / Section 624-28
Taking and return of deposition.
Status: in_force

The officer, commissioner, or person before whom a witness appears, in a case specified in section 624-27, shall take down the witness' testimony, in writing, and shall annex thereto copies of all books and papers produced or such parts thereof as shall be required, and shall certify and transmit it in accordance with the laws and practice of the state or other jurisdiction from which the commission, notice, or other paper emanated.
Haw. Rev. Stat. § 622-58 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-58
Retention of medical records.
Status: in_force

(a) Medical records may be computerized or minified by the use of microfilm or any other similar photographic process; provided that the method used creates an unalterable record. The health care provider shall retain medical records in the original or reproduced form for a minimum of seven years after the last data entry except in the case of minors whose records shall be retained during the period of minority plus seven years after the minor reaches the age of majority.

(b) Records exempt from the retention requirement are: public health mass screening records; pupils' health records and related school health room records; preschool screening program records; communicable disease reports; and mass testing epidemiological projects and studies records, including consents; topical fluoride application consents; psychological test booklets; laboratory copies of reports, pharmacy copies of prescriptions, patient medication profiles, hospital nutritionists' special diet orders, and similar records retained separately from the medical record but duplicated within it; public health nurses' case records that do not contain any physician's direct notations; social workers' case records; and diagnostic or evaluative studies for the department of education or other state agencies.

(c) X-ray films, electro-encephalogram tracings, and similar imaging records shall be retained for at least seven years, after which they may be presented to the patient or destroyed; provided that interpretations or separate reports of x-ray films, electro-encephalogram tracings, and similar imaging records shall be subject to subsection (e).

(d) Medical records may be destroyed after the seven-year retention period or after minification, in a manner that will preserve the confidentiality of the information in the record; provided that the health care provider retains basic information from each record destroyed. Basic information from the records of a physician or surgeon shall include the patient's name and birthdate, a list of dated diagnoses and intrusive treatments, and a record of all drugs prescribed or given. Basic information from the records of a health care facility, as defined in section 323D-2, shall include the patient's name and birthdate, dates of admission and discharge, names of attending physicians, final diagnosis, major procedures performed, operative reports, pathology reports, and discharge summaries.

(e) The health care provider, or the health care provider's successor, shall be liable for the preservation of basic information from the medical record for twenty-five years after the last entry, except in the case of minors, whose records shall be retained during the period of minority plus twenty-five years after the minor reaches the age of majority. If the health care provider is succeeded by another entity, the burden of compliance with this section shall rest with the successor. Before a provider ceases operations, the provider shall make immediate arrangements, subject to the approval of the department of health, for the retention and preservation of the medical records in keeping with the intent of this section.

(f) For the purposes of this section, the term "health care provider" means as defined in section 671-1. [L 1984, c 150, §2; am L 1986, c 176, §1; am L 1988, c 80, §1]
Haw. Rev. Stat. § 621-2 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-2
§§621-2 and 621-3 REPEALED.
Status: repealed

§§621-2 and 621-3 REPEALED. L 1972, c 104, §1(t).
Haw. Rev. Stat. § 622-52 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-52
Subpoena duces tecum for medical records, compliance.
Status: in_force

(a) Whenever a subpoena duces tecum is served upon the custodian of medical records or other qualified witness from a medical facility, in an action or other proceeding on a claim for personal injuries in which the custodian or the custodian's employer is neither a party to the action or proceeding nor is it alleged that the claim arose at the medical facility, and such subpoena requires the production in court, or before an officer, board, commission, or tribunal, of all or any part of the medical records of a patient who is or has been cared for or treated at the medical facility, it shall be sufficient compliance therewith if the custodian or other qualified witness within five days after receipt of such subpoena, delivers by registered or certified mail or by messenger a true and correct copy (which may be by any method described in rule 1001(4), Hawaii rules of evidence) of all the medical records described in such subpoena to the clerk of the court or the clerk's deputy authorized to issue it, together with the affidavit described in section 622-53.

(b) The copy of the medical records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of the custodian or other qualified witness, and date of the subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:

(1) If the subpoena directs attendance in court, to the clerk of such court or the clerk's deputy authorized to issue it, at the courthouse.

(2) In other cases, to the officer, board, commission, or tribunal conducting the hearing, at the place designated in the subpoena.

(c) The copy of the medical records shall remain sealed and shall be opened only at the time of trial, or other hearing, upon the direction of the judge, officer, board, commission, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, or hearing, unless the parties or counsel in the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to the custodian or other qualified witness who is to appear personally. Copies of medical records which are not introduced in evidence or required as part of the record shall be returned by registered or certified mail or by messenger to the person or entity from whom received. If the copies of the medical records are introduced in evidence or are required as part of the record, they shall be returned by registered or certified mail or messenger to the person or entity from whom received as soon as their use is no longer needed, after the trial, or other hearing. [L 1971, c 139, pt of §1; am L 1972, c 104, §2(t), (u); gen ch 1985; am L 1987, c 283, §60]
Haw. Rev. Stat. § 621C-4 — HI Code / Division 4 / Title 33 / Chapter 621C / Section 621C-4
Transactional immunity.
Status: in_force

If a person is ordered to testify or produce a record, document, or other object under this chapter and the order specifies that the person is granted transactional immunity pursuant to this section, such person shall not be prosecuted or punished in any criminal action or proceeding for or on account of any act, transaction, matter, or thing concerning which the person is so ordered to testify or produce a record, document, or other object, except that the person may be prosecuted for perjury, for giving a false statement, or for an offense involving a failure to comply with the order.
Haw. Rev. Stat. § 621-9 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-9
Witness and defendant expenses; budgetary procedure.
Status: in_force

(a) Except as provided for in section 802-7, whenever a witness subpoenaed on behalf of the State in a criminal case or on behalf of a defendant at the expense of the State in a criminal case is discharged, the clerk of the court shall issue to the witness, under seal of the court, a numbered certificate from a book having a stub with like designations, stating the name of the witness, when and where the witness was summoned or subpoenaed, the date of the witness' discharge, the number of miles necessarily traveled from the witness' place of residence to the place of holding court, the number of days' service, and the amount due for transportation and for service. The certificate, when correct, must be so certified by the public prosecutor or county attorney for witnesses subpoenaed on behalf of the State, and by the public defender for witnesses subpoenaed on behalf of a defendant, but no certificate shall be so certified unless presented to the public prosecutor, county attorney, or public defender within twelve months after the date of issue. Duly certified witness certificates shall be paid upon vouchers approved by the state director of finance and warrants drawn by the state comptroller.

(b) Whenever the presence of a defendant in a criminal case or in a proceeding under chapter 704 or a petitioner in a post conviction proceeding who is outside the judicial circuit is mandated by court order or bench warrant to appear, the cost of airfare, ground transportation, any per diem for both the defendant or petitioner and sufficient law enforcement officers to effect the defendant's or petitioner's return, shall be borne by the State. All such expenses shall be certified by the court or public prosecutor or the attorney general. Duly certified claims for payment shall be paid upon vouchers approved by the state director of finance and warrants drawn by the state comptroller. The court may order the nonindigent defendant or petitioner who was returned to the State of Hawaii to reimburse the State for the costs of such extradition or return as specifically described above.

(c) Each public prosecutor or county attorney and the public defender shall submit to the state department of budget and finance for inclusion in the department's budget request for each fiscal biennium the amount required for each fiscal year for expenses for witnesses subpoenaed by the public prosecutor, county attorney, or public defender and for defendants and postconviction petitioners summoned on behalf of, or required by, the public prosecutor, county attorney, or public defender. [L 1907, c 53, §3; RL 1925, §2562; am L 1932 1st, c 13, §1; RL 1935, §3818; RL 1945, §9829; am imp L 1945, c 35, §1; RL 1955, §222-9; am L 1957, c 152, §1; am L Sp 1959 2d, c 1, §14; am L 1963, c 114, §1; HRS §621-9; am L 1976, c 131, §4; am L Sp 1977 1st, c 7, §2; am L 1980, c 306, §1; am L 1987, c 85, §1; am L 1988, c 280, §1; am L 2017, c 12, §66]
Haw. Rev. Stat. § 621-13 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-13
Oaths, validity of.
Status: in_force

If an oath has been administered by a judge of a court of record, or by a clerk, notary public, or other person having authority to administer oaths by the law of the place where the oath was administered, it shall not be an objection to the validity of the oath that the judge or other person has not jurisdiction or cognizance of the matter or thing concerning which the oath was administered.
Haw. Rev. Stat. § 621-10.5 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-10.5
Unlawful suspension or discharge from employment; penalty; right of action.
Status: in_force

(a) An employer shall not deprive an employee of the employee's employment, or threaten or otherwise coerce the employee with respect thereto, because the employee receives a summons, responds thereto, serves as a witness or attends court as a prospective witness.

(b) Any employer who violates subsection (a) is guilty of a petty misdemeanor.

(c) If an employer discharges or suspends an employee in violation of subsection (a) the employee within ninety days from the date of discharge or suspension may bring a civil action for recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable shall not exceed lost wages for six weeks. If the employee prevails, the employee shall be allowed a reasonable attorney's fee fixed by the court. [L 1978, c 13, §1; gen ch 1985]
Haw. Rev. Stat. § 621-5 — HI Code / Division 4 / Title 33 / Chapter 621 / Section 621-5
Bystanders called without subpoena.
Status: in_force

On the trial of any issue, matter or question, or on an inquiry arising in any action or proceeding in any court or before any person having authority to hear, receive, and examine evidence, any person who happens to be present, and who by virtue of this chapter is competent to give evidence may be called and required to give evidence and to produce any document. If any such person when called and required as aforesaid, does not appear and give evidence and, if then able so to do, produce the document, the person shall be subject to the same proceedings and liabilities as if the person had been duly served with a writ of subpoena ad testificandum or duces tecum.
Haw. Rev. Stat. § 622-43 — HI Code / Division 4 / Title 33 / Chapter 622 / Section 622-43
Decree of distribution, prima facie evidence of what.
Status: in_force

When upon the trial of any cause in any court of the State it becomes necessary to show the devolution of the title to land any former owner of which died intestate, a decree or order of distribution duly entered by a court having jurisdiction in probate of the estate of any such deceased owner may be received in evidence, and, when so received, shall constitute prima facie proof of the descent of the title to the person or persons named as distributee or distributees in the order or decree, provided that the order or decree was so entered not less than ten years prior to the date upon which the cause was commenced.
Haw. Rev. Stat. § 624D-5 — HI Code / Division 4 / Title 33 / Chapter 624D / Section 624D-5
Deposition, production, and inspection.
Status: in_force

Rules 26, 27, 28, 29, 30, 31, 34(c), and 45 of the Hawaii rules of civil procedure shall apply to subpoenas issued under section 624D‑3.
Haw. Rev. Stat. § 621C-3 — HI Code / Division 4 / Title 33 / Chapter 621C / Section 621C-3
Use immunity.
Status: in_force

The testimony or production that is compelled under the order, and any information directly or indirectly derived from the testimony or production, may not be used against the person in any manner in a criminal case, except in a prosecution for perjury, for giving a false statement, or for an offense involving a failure to comply with the order; provided that such person may be prosecuted or punished for any crime so long as testimony or production that is compelled under the order, and any information directly or indirectly derived from such testimony or production, is not used against such person in such prosecution.