Appendix C. Differences between the HRE and the FRE

Perspective

Important differences between the HRE and the FRE are listed below in an order which I think reflects their importance to trial lawyers. The following points can add some perspective before considering the detailed rules.

  1. HRE 609 provides far fewer opportunities to impeach witnesses by prior convictions in both civil and criminal cases than FRE 609. In Hawaii, witnesses can only be impeached with dishonesty crimes and criminal defendants cannot be impeached with any conviction unless the defendant introduced testimony to establish the defendant’s credibility as a witness. HRE 609 means that criminal defendants will be able to testify without being subject to impeachment, unless the defendant goes too far and claims to have never been in trouble before or if the defendant’s lawyer calls a character witness for a defendant who has a prior conviction. In the latter situation, it will be the character witness who will be impeached, not the criminal defendant, but the damage to the defense’s case will be significant. FRE 609 allows witness impeachment by any felony as well as dishonesty and false statement misdemeanors, and it also permits the criminal defendant to be impeached by most felony convictions after the trial judge balances the probative value against the prejudicial effect.
  2. HRE 802.1 allows prior written and signed inconsistent statements to be used for substantive evidence (the truth) even if the statements were not made under oath. Hence, the witness’ signed statement that is inconsistent with the witness’ trial testimony can be used both to impeach and to prove the truth of the prior written statement. In addition, HRE 802.1 includes all the situations where the out-of-court hearsay declarant is the in-court witness providing testimony about the out-of-court statement (Witness = Declarant). This approach is helpful for analyzing the admissibility of prior inconsistent statements, prior consistent statements, prior identifications, and past recollection recorded.
  3. Hawaii has not adopted the Daubert standard for expert testimony. State v. Montalbo, 73 Haw. 130, 828 P.2d 1274 (1992) was decided a year before Daubert and uses standards very similar to Daubert’s. Decisions about expert testimony will probably be the same in Hawaii courts as in federal courts. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
  4. HRE 606(b) allows Hawaii courts to review the validity of a jury verdict by taking testimony in post-trial hearings about irregularities that occurred in the jury room, both statements made by jurors and behavior. The federal courts will generally not review such issues. Compare State v. Furutani, 76 Hawaii 172, 873 P.2d 51 (1994) with Tanner v. United States, 483 U.S. 107 (1987) and Warger v. Shauers, 574 U. S. ___ (2014). However, Pena-Rodriguez v. Colorado, 580 U. S. ___(2017) found that some statements from a juror exhibiting overt racial bias will allow the trial court to review the validity of the conviction despite FRE 606.
  5. HRE 608(b) gives the judge discretion to allow extrinsic impeachment of a witness’ credibility. FRE 608(b) does not allow such extrinsic impeachment.
  6. The HRE and FRE categorize certain types of statements as hearsay or not hearsay differently. In the FRE, these statements are defined as not hearsay and are admissible for their truth because they are not hearsay. The Hawaii rules take a different path to the same result. Hawaii considers these statements to be hearsay, but says they are hearsay exceptions. Either way, the statements are admissible for their truth. Those statements are – prior inconsistent statements “given under oath subject to the penalty of perjury” at certain proceedings, prior consistent statements, prior identifications, and admissions (which the federal rules now call “an opposing party’s statement” that is “offered against an opposing party.”)
  7. HRE 802.1 has taken all the evidence rules where the out-of-court hearsay declarant is the in-court witness providing testimony about the out-of-court statement (I call this: Witness = Declarant) and put them in one rule. The most significant repositioning is the movement of the Past Recollection Recorded rule (what would have been HRE 803(b)(5) and moved that rule into 802.1. As mentioned in paragraph 2 above, the HRE also admits certain prior inconsistent statements (mainly those that are written and signed) for their truth. This approach is helpful analyzing the admissibility of prior inconsistent statements, prior consistent statements, prior identifications, and past recollections recorded.
  8. The FRE moved the residual exceptions to hearsay rules 803 and 804 into a single rule, FRE 807. Hawaii never moved the residual exceptions from their original positions at the end of HRE 803 and 804. There is no difference in case law or interpretation.

If my notes below about the differences between the HRE and FRE are too cryptic for you, then just consider those notes to be alerts that there are some differences which merit close comparison between the FRE and the HRE.

Major and Minor Difference Between the HRE and the FRE

Judicial Notice

202       HRE 202, Judicial Notice of Law, does not have a FRE counterpart. However, in the internet age, most states would probably take judicial notice of the laws of other jurisdictions because these laws because the “can be accurately and readily determined from sources whose accuracy cannot reasonable be questioned.”

Presumptions

301          Presumptions (HRE has a different approach than the limited FRE approach).

302-6     HRE has many specific presumption rules, largely borrowed from the California Evidence Code, the Uniform Rules of Evidence, and the U.S. Supreme Court’s proposal for a presumption rule. The HRE combines the Thayer-Wigmore approach to presumptions with the Morgan approach to provide a unique Hawaii approach.

Relevance

404        FRE404(a)(2) was amended in 2000 to allow the defendant’s character to be attacked if the defendant attacks the victim’s character, but the rule was never amended in Hawaii.

404(b)   Differences in notice provisions

407        Subsequent remedial measures are not excluded by HRE in product liability cases (which means this rule favors plaintiffs). The HRE follows the California case, Ault v. International Harvester Co., 528 P.2d 1148 (1975).

408        Mediation is explicitly included in HRE 408, which excludes settlement discussions. This is not remarkable. Mediation would probably be excluded in all jurisdictions that have rules based upon the FRE, even though the rules do not mention mediation.

409.5     Some, limited apologies excluded (HRE only). The rule only excludes the apology and not any statements of fact accompanying the apology. Many people would consider this a weak apology law. Compare HRE 408 and 409 on the exclusion of statement facts the accompany offers to settle and offers to pay medical expenses.

412        Sexual assault (amendments FRE 1994; HRE 1999. The two rules use difference language for both the criminal and civil provisions of these Rape Shield rules).

413, 414, 415     Sexual assault or child molestation (FRE only). Only a few other states have adopted these three rules.

Privileges

501        Privileges. FRE uses the common law of privileges unless the privilege comes from the U.S. Constitution, federal statutes, or U.S. Supreme Court rules.

502-12   HRE has many specific privilege rules derived from the proposed FRE on privilege (which were not passed), the Uniform Rules of Evidence, and the California Evidence Code.

502        Attorney-client privilege and work product; limitations on waiver (FRE only).

505        Spousal privilege – HRE – “matters occurring prior to the marriage” exception might also apply to the confidential marital communications privilege. (Was that intentional? See Divergence section of this handbook.)

Witnesses

606(b)   Juror as witness. Under HRE 606(b) Hawaii courts are willing to review improper influences on jurors. See State v. Furutani, 76 Haw. 172, 873 P.2d 51 (1994).

608(b)  Extrinsic specific conduct impeachment is permitted under HRE. A major difference between HRE and FRE.

609       Impeachment by conviction is greatly restricted under HRE. A major difference between HRE and FRE.

609.1   Only HRE has an explicit rule on impeachment by bias and the necessary foundation for using extrinsic evidence of bias to impeach. However, the federal common law permits impeachment by bias and the same foundation to use extrinsic impeachment. My former students learn that “Bias is never collateral.”

613(b)  A minor difference between the HRE and FRE for the necessary foundation for impeachment by extrinsic evidence of prior inconsistent statements.

613(c) Extrinsic evidence of prior consistent statements foundation is explicitly specified in HRE only, but is the focus of attention in Tome v. United States, 513 U.S. 150 (1995).

616     Televised testimony of child (HRE only).

Experts

After Daubert, the FRE were amended to add some Daubert language to the rules, and after Montalbo the HREs were amended to add some Montalbo language to the rules, but the decisions under the FRE and HRE are likely to be the same.

702        After Montalbo and Daubert, the HRE and the FRE added different language to their 702 rules to track those decisions. HRE has not adopted Daubert, but Hawaii courts consider Daubert “instructive.” State v Vliet, 95 Haw. 94, 105, 19 P.3d 42, 53 (2001).  Decisions under both sets of rules are likely to be the same.

703       HRE added language to exclude expert opinions that lack trustworthiness, which is no surprise. Under FRE, otherwise inadmissible facts appear to need the approval of the judge to be discussed in court by the expert.

704(b)   Only FRE prohibits an expert from stating certain opinions about a criminal defendant’s mental state or condition but in practice, most such opinions, if stated carefully, are admissible.

706      FRE has a much more extensive rule on court-appointed experts.

Hearsay

801        HRE has added a phrase to clarify that an assertion, for hearsay analysis, is not the whole written statement. HRE makes clear that all sentences and clauses of a statement must be analyzed separately to see if they all comply with the requirements of any hearsay exception. This analysis is especially necessary for any statement against interest hearsay exception under HRE 804(b)(3).

801(d)   Only FRE uses a rule called FRE 801(d), but comparable hearsay provisions are in HRE 802.1 and 803(a).

802.1(1).  Signed prior statements can be used as substantive evidence even if they were not made under oath (HRE only). A major difference between HRE and FRE. FRE 801(d)(1)(A) requires the prior statement be made under oath for it to be used for the truth. California, however, even admits prior oral inconsistent statements for their truth, California Evidence Code 1235.

803(a)(3)-(5) Only HRE has hearsay exceptions for: Admission by deceased in wrongful death action; Admission by predecessor in interest; Admission by predecessor in litigation.

803(6)    Records of regularly conducted activity (business records) have a minor foundational difference between HRE and FRE.

803(6)(7)(8) FRE only, amended these rules in 2016 to indicate that the opponent of the evidence has the burden of showing lack of trustworthiness.

803(10)   The FRE version of this absence of public records hearsay exception has a notice provision for criminal cases.

804(b)(1) Former testimony hearsay exception has a predecessor in interest requirement for use in federal civil cases, but Hawaii has never had an appellate decision on the use of this exception against a party who was not in the former proceeding. Apparently, using former testimony against a party who was not a party in the former proceeding is very rare even in civil cases.

804(b)(2) Dying declaration – when used in a criminal case, FRE is limited to use in homicides cases but HRE will allow its use in any criminal case, which would probably be attempted murder cases.

804(b)(5) Statement of recent perception. This hearsay exception is only in the HRE and codifies the holding of Hew v. Aruda, 551 Haw. 451 (1969). Do not expect to use it often.

804(b)(6) Statement by child – HRE only.

804(b)(6) FRE 804(b)(6) – Forfeiture by wrongdoing. HRE version of this rule is HRE 804(b)(7)

807        Hawaii has kept the residual hearsay exceptions [HRE 803(b)(24) and 804(b)(7)] in their original positions in rules 803 and 804. The FRE combined them into one rule, FRE 807.

Best evidence

1001      HRE – Defines public record.

Miscellaneous

1102      Judge shall not comment on the evidence – HRE only.

 

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Hawaii Rules of Evidence Handbook by John Barkai is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.