Appendix B. Case Law Divergence from the HRE
The words of statutes and court rules do not always align with court decisions. For example, a well-known article by Daniel Capra, Case Law Divergence from the Federal Rules of Evidence, 197 F.R.D. 531, 532 (2000), points out 21 examples where federal case law conflicts with the text of the FRE, the Advisory Committee’s Notes, or both, as well as 11 examples of significant case law developments where the FRE and the Advisory Committee’s Notes are silent on the issues. This appendix points out instances where the words of the HRE might lead lawyers astray if they do not know that 1) Hawaii case law contradicts the apparent meaning of HRE 404 and 405, 2) the confidential marital communication privilege might have an unexpected limitation, and 3) a Hawaii constitutional amendment has resulted in no change to the HRE.
HRE 404 & 405. Character Evidence Issues
Hawaii case law on character evidence permits the admissibility of both 1) character evidence in some civil cases (usually civil assault) as to who was the first aggressor, and 2) character evidence of specific acts and criminal history in some criminal cases, even though HRE 404 and 405 appear to prohibit such evidence.
1. Character evidence in civil cases. Hawaii case law diverges from the FRE and almost all other jurisdictions by allowing the admission of character evidence in civil cases even though the wording of the rule appears to limit the use of character evidence to only criminal cases. HRE 404(a) begins with the general rule that character evidence is not admissible for the purpose of proving action in conformity, although subsequent sections of that rule, known as the “mercy rule,” allow the “accused” to introduce evidence of the character of the accused or victim, and allow the prosecution an opportunity to rebut such evidence. Words in the rule that indicate that this rule is limited to criminal cases include “accused,” “prosecution,” and “crime.” Furthermore, subsequent amendments to FRE 404 added the phrase “in a criminal case” to the rule, further focusing this part of rule 404 on criminal cases.
Although most states adopting versions of FRE 404 limit the “mercy rule” to criminal cases, Hawaii does not. See Meyer v. City & County of Honolulu, 69 Haw. 8, 731 P.2d 149 (1986) (allowing the use of a civil party’s good character to be admitted where the issues include who was the original aggressor).
2. Character evidence proved by specific acts and criminal history. Hawaii case law also diverges from the apparent meaning of the words of HRE 404 and 405 because it allows specific act evidence and criminal records to be admissible on the issue of who was the first aggressor in assault and homicide cases. Under HRE 405(a), character evidence is only admissible on direct examination when offered as reputation or opinion evidence. HRE 405(b) allows specific act evidence when character “is an essential element of a charge, claim, or defense.” This “essential element” approach is generally limited to evidence of the character of a parent when determining custody in family law cases, negligent entrustment in tort cases, entrapment in criminal cases, a defense to defamation, and determining damages in a wrongful death case. However, Hawaii has a series of cases, starting just before the adoption of the Hawaii Rules of Evidence in 1981, that permit the introduction of specific instances of conduct and criminal records to prove character, which seems to contradict the words of HRE 405. See State v. Lui, 61 Haw. 328, 603 P.2d 151 (1979); State v. Basque, 66 Haw. 510, 666 P.2d 599 (1983); State v. Kekona, 120 Haw. 420, 209 P.3d 1234 (ICA 2009). Those cases allowed the admission of the deceased’s criminal record of arrests for attempted murder and armed robbery, guilty pleas on robbery counts, and evidence of physical and verbal abuse of a victim’s girlfriend to prove the victim’s character. Some of that evidence, such as arrest records, might be even less reliable than specific act evidence of a testifying eyewitness.
HRE 505 Spousal Privilege; Confidential Marital Communications
The language of the confidential marital communications privilege exception appears to limit the privilege to communications about acts committed after the spouses marry. HRE 505(c) states, in part, there is “no privilege under this rule… as to matters occurring prior to the marriage.” A literal interpretation of this language is that there is no privilege for communications about acts that took place before the marriage, even if the confidential communication took place after and during the marriage. No other communication privilege in the Hawaii rules excludes communications about matters which occurred prior to the forming of the protected relationship.
HRE 505 contains two privileges, 1) an adverse spousal testimony privilege, and 2) a confidential marital communications privilege. The HRE incorporated the adverse spousal testimony privilege and its exception from the draft of the proposed federal privilege rules as HRE 505(a)&(c). The proposed FRE on privilege were never passed by Congress, and so they never became the federal law. Instead, the federal common law continues to govern all federal privileges unless a privilege is set forth in federal statutes, the Constitution, or a U.S. Supreme Court rule.
The complication presented by the wording of the Hawaii Rule arises because Hawaii’s rule added the confidential marital communication privilege as HRE 505(b), but only used one paragraph, HRE 505(c), to cover exceptions to both privileges in HRE 505. Grafting on the marital communication privilege to the testimonial privilege and putting them in one evidence rules was economical to save space and enhance organization, but it might have unintentionally limited the marital communication privilege because the exception language might not fit equally well for both spousal privileges.
Some states, although not the federal common law, have limited the adverse spousal testimony privilege by excluding testimony about events that took place before the marriage. Apparently, the HRE intended to follow that approach at least for the testimonial privilege. But because there is only one exception paragraph that applies to both privileges in HRE 505, confidential marital communications might not be privileged if the communication was about an event that took place before the marriage.
The commentary is silent on this apparent limitation to the communication privilege. If that limitation was intended, the commentary would probably have discussed that limitation. No Hawaii appellate court decisions have considered this issue.
Rule 505.5 Victim-counselor privilege: A Constitutional Amendment that made not change
Unforeseen issues may be lurking in the victim-counselor privilege. Under HRE 505.5, a victim can prevent disclosure of some confidential communications made to a victim counselor. However, State v. Peseti, 101 Hawaii 172, 65 P.3d 119 (2003) held that, “when a statutory privilege interferes with a defendant’s constitutional right to cross‑examine, then, upon a sufficient showing by the defendant, the witness’ statutory privilege must, in the interest of the truth‑seeking process, bow to the defendant’s constitutional rights.” So, Peseti essentially held that the defendant’s constitutional right to confrontation trumped the victim-counselor privilege. After the Peseti decision, the Hawaii Constitution was amended in 2004 to allow enactment of a law that would overrule Peseti, but no legislation has been introduced to overrule Peseti.
