hearsay rule in Hawaii

2025There is no evidence in the record to suggest that the district court, while reviewing the video recordings, conducted further proceedings that should have been public. 6 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER We conclude, therefore, that the district court did not err when it reviewed Ellway's prior trial proceedings, and it did not violate Ellway's right to a public trial. (4) Ellway contends that the district court "committed reversible error" by admitting into evidence, without sufficient foundation, the State's Certificates of Analysis (State Exhibits 3 and 4)2

2020See State v. Abrigo, 144 Hawai#i 491, 497, 445 P.3d 72, 78 (2019) ("Where the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and the appropriate standard for appellate review is the right/wrong standard." (quoting State v. Moore, 82 Hawai#i 202, 217, 921 P.2d 122, 137 (1996) (brackets and internal quotation marks omitted))).

2015In State v. Machado, we explained that to qualify under this hearsay exception (i.e., an “excited utterance”), “the proponent of the statement must establish that: (1) a startling event or condition occurred; (2) the statement was made while the declarant was under the stress of excitement caused by the *235 event or condition; and (3) the statement relates to the startling event or condition.’ 109 Hawai'i 445, 451 , 127 P.3d 941, 947 (2006).

2015In State v. Machado, we explained that to qualify under this hearsay exception (i.e., an “excited utterance”), “the proponent of the statement must establish that: (1) a startling event or condition occurred; (2) the statement was made while the declarant was under the stress of excitement caused by the *235 event or condition; and (3) the statement relates to the startling event or condition.’ 109 Hawai'i 445, 451 , 127 P.3d 941, 947 (2006).

2009Thus, where the admissibility of evidence is determined by application of the hearsay rule, there can generally be only one correct result, and the appropriate standard for appellate review is the right/wrong standard. 91 Hawai`i at 189-90, 981 P.2d at 1135-36 (internal quotation marks, citations, and footnote omitted; some brackets added and some omitted; block quotation format altered).

2003Thus, where the admissibility of evidence is determined by application of the hearsay rule, there can generally be only one correct result, and the appropriate standard for appellate review is the right/wrong standard. 91 Hawai'i at 189-90, 981 P.2d at 1135-36 (internal quotation marks, citations, footnote, and brackets in original omitted; bracketed material added) (quoting State v. Christian, 88 Hawai'i 407, 418 , 967 P.2d 239, 250 (1998)).

2012First, Petitioner asserts that the statement was not relevant to “whether he intentionally, knowingly, or recklessly caused serious bodily injury to another” or to whether he had a “consciousness of guilt” because the statement “I made a big mistake” “can have many meanings[,]” (citing Canady, 80 Hawai'i at 469 , 911 P.2d at 104 ), and the statement was too remote in being made “over a year after the alleged incident.” He maintains that because his statement was not relevant, the question of whether the statement was a party admission under HRE Rule 803(a)(1) (2010), 7 that “is not excluded by

2012First, Petitioner asserts that the statement was not relevant to “whether he intentionally, knowingly, or recklessly caused serious bodily injury to another” or to whether he had a “consciousness of guilt” because the statement “I made a big mistake” “can have many meanings[,]” (citing Canady, 80 Hawai'i at 469 , 911 P.2d at 104 ), and the statement was too remote in being made “over a year after the alleged incident.” He maintains that because his statement was not relevant, the question of whether the statement was a party admission under HRE Rule 803(a)(1) (2010), 7 that “is not excluded by

2003Thus, where the admissibility of evidence is determined by application of the hearsay rule, there can generally be only one correct result, and the appropriate standard for appellate review is the right/wrong standard. 91 Hawai'i at 189-90, 981 P.2d at 1135-36 (internal quotation marks, citations, footnote, and brackets in original omitted; bracketed material added) (quoting State v. Christian, 88 Hawai'i 407, 418 , 967 P.2d 239, 250 (1998)).

2003Thus, where the admissibility of evidence is determined by application of the hearsay rule, there can generally be only one correct result, and the appropriate standard for appellate review is the right/wrong standard. 91 Hawai'i at 189-90, 981 P.2d at 1135-36 (internal quotation marks, citations, footnote, and brackets in original omitted; bracketed material added) (quoting State v. Christian, 88 Hawai'i 407, 418 , 967 P.2d 239, 250 (1998)).

2019State v. Cordeiro , 99 Hawai'i 390 , 403-04, 56 P.3d 692 , 705-06 (2002) ; State v. Pulse , 83 Hawai'i 229 , 246, 925 P.2d 797 , 814 (1996). "[W]here the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and 'the appropriate standard for appellate review is the right/wrong standard.' " State v. Moore , 82 Hawai'i 202 , 217, 921 P.2d 122 , 137 (1996) (quoting Kealoha v. Cty. of Hawaii , 74 Haw. 308 , 319, 844 P.2d 670 , 675 (1993) ).

2019State v. Cordeiro , 99 Hawai'i 390 , 403-04, 56 P.3d 692 , 705-06 (2002) ; State v. Pulse , 83 Hawai'i 229 , 246, 925 P.2d 797 , 814 (1996). "[W]here the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and 'the appropriate standard for appellate review is the right/wrong standard.' " State v. Moore , 82 Hawai'i 202 , 217, 921 P.2d 122 , 137 (1996) (quoting Kealoha v. Cty. of Hawaii , 74 Haw. 308 , 319, 844 P.2d 670 , 675 (1993) ).

1999It stated that “the ‘past recollection recorded’ exception to the hearsay rule does not deprive an accused of his constitutional right of confrontation provided that the declarant, as contemplated under Evid.R. 803(5), ‘ “is testifying as a witness and [is] subject to full and effective cross-examination.” ’ ”[ 21 ] Id. (quoting State v. Scott, 31 Ohio St.2d 1 , 285 N.E.2d 344, 349 (1972) (quoting Green, 399 U.S. at 158 , 90 S.Ct. 1930 )) (emphasis added).

1972See California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970) wherein the court stated at 155-156, 90 S.Ct. at 1933 -1934: While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law... . [M]erely because evidence is admitted in violation of a long-established hearsay rule doe

2022App. 130, 138 , 828 P.2d 813, 818 (1992)) (emphasis added)); see also State v. Rodrigues, 7 Haw.

2021App. 130, 138 , 828 P.2d 813, 818 (1992)) (emphasis added)); see also State v. Rodrigues, 7 Haw.

2022However, this court rejected the same argument in State v. Choi, No. CAAP-XX-XXXXXXX, 2020 WL 419629 , at *2 (App. Jan. 27, 2020) (SDO), holding that the Roberts test applies "only when the challenged out-of-court statements were made in the course of a prior judicial proceeding" and that when hearsay qualifies for a "firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." (Citing State v. Ofa, 9 Haw.

2021However, this court rejected the same argument in State v. Choi, No. CAAP-XX-XXXXXXX, 2020 WL 419629 , at *2 (App. Jan. 27, 2020) (SDO), holding that the Roberts test applies "only when the challenged out-of-court statements were made in the course of a prior judicial proceeding" and that when hearsay qualifies for a "firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." (Citing State v. Ofa, 9 Haw.

2026Hearsay "Where the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and the appropriate standard for appellate review is the right/wrong standard." State v. Abrigo, 144 Hawai‘i 491, 497, 445 P.3d 72, 78 (2019) (cleaned up). 6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Prosecutorial Misconduct "Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility

2026Hearsay "Where the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and the appropriate standard for appellate review is the right/wrong standard." State v. Abrigo, 144 Hawai‘i 491, 497, 445 P.3d 72, 78 (2019) (cleaned up). 6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Prosecutorial Misconduct "Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility

2010In Sua II, this court explained that “[w]e have recognized that the hearsay rule and the confrontation clause are ‘generally designed to avoid similar evils; however, it is not correct to surmise that the overlap of the two doctrines of law is so complete that the confrontation clause is nothing more than a codification of the hearsay mies of evidence.’ ” 92 Hawai'i at 70-71, 987 P.2d at 968-69 (quoting Apilando, 79 Hawai'i at 131-32 , 900 P.2d at 138 -39 (quoting State v. Faafiti, 54 Haw. 637, 639 , 513 P.2d 697, 700 (1973))).

2010In Sua II, this court explained that “[w]e have recognized that the hearsay rule and the confrontation clause are ‘generally designed to avoid similar evils; however, it is not correct to surmise that the overlap of the two doctrines of law is so complete that the confrontation clause is nothing more than a codification of the hearsay mies of evidence.’ ” 92 Hawai'i at 70-71, 987 P.2d at 968-69 (quoting Apilando, 79 Hawai'i at 131-32 , 900 P.2d at 138 -39 (quoting State v. Faafiti, 54 Haw. 637, 639 , 513 P.2d 697, 700 (1973))).

1993This court determined that the police sketch, although hearsay, would still be admissible as a hearsay exception if, under HRE 802.1(3), 6 “1) the declarant testifies at trial and is subject to cross-examination concern *318 ing the subject matter of his statement and 2) the statement is one of identification of a person made after perceiving him.” Id. at 262 , 659 P.2d at 750-51 .

1993This court determined that the police sketch, although hearsay, would still be admissible as a hearsay exception if, under HRE 802.1(3), 6 “1) the declarant testifies at trial and is subject to cross-examination concern *318 ing the subject matter of his statement and 2) the statement is one of identification of a person made after perceiving him.” Id. at 262 , 659 P.2d at 750-51 .

2006Apparently, the CW’s written statement, although identified, was not employed as substantive evidence pursuant to HRE Rule 802.1(1) (1993) by the prosecution. 10 See Eastman, 81 Hawai'i at 136 , 913 P.2d at 62 (stating that “an exception to the rule against hearsay can be found in HRE Rule 802.1(1), which provides for substantive use of most prior inconsistent witness statements”) (internal quotation marks and citation omitted); Canady, 80 Hawai'i at 480-81 , 911 P.2d at 115-16 (recognizing that HRE 802.1 adopted and expanded the federal exception to the hearsay rule allowing prior inconsisten

2006Apparently, the CW’s written statement, although identified, was not employed as substantive evidence pursuant to HRE Rule 802.1(1) (1993) by the prosecution. 10 See Eastman, 81 Hawai'i at 136 , 913 P.2d at 62 (stating that “an exception to the rule against hearsay can be found in HRE Rule 802.1(1), which provides for substantive use of most prior inconsistent witness statements”) (internal quotation marks and citation omitted); Canady, 80 Hawai'i at 480-81 , 911 P.2d at 115-16 (recognizing that HRE 802.1 adopted and expanded the federal exception to the hearsay rule allowing prior inconsisten

1994Corp., 57 Haw. 64, 67 , 549 P.2d 740, 743 (1976) (declaration in a deed about family history or pedigree are among the oldest exceptions to the hearsay rule).

1994Corp., 57 Haw. 64, 67 , 549 P.2d 740, 743 (1976) (declaration in a deed about family history or pedigree are among the oldest exceptions to the hearsay rule).

2017See United States v. DeWater, 846 F.2d 528 (9th Cir. 1988) (in a DUI case, the intoxilyzer test results were admissible under the public records and reports exception to the hearsay rule).

1992See United States v. DeWater, 846 F.2d 528 (9th Cir. 1988) (in a DUI case, the intoxilyzer test results were admissible under the public records and reports exception to the hearsay rule).

2019The Admissibility of Evidence under HRE Rule 803(b)(6) "Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result, and the appropriate standard for appellate review is the right/wrong standard." State v. Fitzwater , 122 Hawai'i 354 , 362, 227 P.3d 520 , 528 (2010) (internal quotation marks and citation omitted).

2019The Admissibility of Evidence under HRE Rule 803(b)(6) "Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result, and the appropriate standard for appellate review is the right/wrong standard." State v. Fitzwater , 122 Hawai'i 354 , 362, 227 P.3d 520 , 528 (2010) (internal quotation marks and citation omitted).

2018Reliability may be inferred if the statement falls within a firmly rooted exception to the hearsay rule, or it "may be demonstrated 'upon a showing of particularized guarantees of trustworthiness.' " Id. (quoting Ortiz , 74 Haw. at 361 , 845 P.2d at 556 ).

2018Reliability may be inferred if the statement falls within a firmly rooted exception to the hearsay rule, or it "may be demonstrated 'upon a showing of particularized guarantees of trustworthiness.' " Id. (quoting Ortiz , 74 Haw. at 361 , 845 P.2d at 556 ).

2010Admissibility of Hearsay “Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result, and the appropriate standard for appellate review is the right/wrong standard.” State v. Machado, 109 Hawai'i 445, 450 , 127 P.3d 941, 946 (2006) (citation omitted); State v. Jhun, 83 Hawai'i 472 , 477 & n. 4, 927 P.2d 1355 , 1360 & n. 4 (1996) (applying de novo review to admissibility of evidence under HRE Rule 803(b)(8), but noting that the question of whether there was evidence of a “lack of trustworthiness” under the rule would be reviewed for ab

2010Admissibility of Hearsay “Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result, and the appropriate standard for appellate review is the right/wrong standard.” State v. Machado, 109 Hawai'i 445, 450 , 127 P.3d 941, 946 (2006) (citation omitted); State v. Jhun, 83 Hawai'i 472 , 477 & n. 4, 927 P.2d 1355 , 1360 & n. 4 (1996) (applying de novo review to admissibility of evidence under HRE Rule 803(b)(8), but noting that the question of whether there was evidence of a “lack of trustworthiness” under the rule would be reviewed for ab

1979Ordinarily, such statements are inadmissible at trial, e.g., State v. Murphy, 59 Haw. 1, 16-17 , 575 P.2d 448, 459 (1978); Makekau v. Kane, 20 Haw. 203, 208 (1910); Lyman v. Hilo Tribune Publishing Company, 13 Haw. 453 (1901); unless they can be characterized as exceptions to the hearsay rule, see, e.g., Warshaw v. Rockresorts, Inc., 57 Haw. 645, 648-51 , 562 P.2d 428, 432-34 (1977) (business record); State v. Altergott, 57 Haw. 492, 502-05 , 559 P.2d 728, 735-37 (1977) (past recollection recorded);Apo v. Dillingham Investment Corp., 57 Haw. 64, 67-69 , 549 P.2d 740, 742-43 (1976) (declaration

1979Ordinarily, such statements are inadmissible at trial, e.g., State v. Murphy, 59 Haw. 1, 16-17 , 575 P.2d 448, 459 (1978); Makekau v. Kane, 20 Haw. 203, 208 (1910); Lyman v. Hilo Tribune Publishing Company, 13 Haw. 453 (1901); unless they can be characterized as exceptions to the hearsay rule, see, e.g., Warshaw v. Rockresorts, Inc., 57 Haw. 645, 648-51 , 562 P.2d 428, 432-34 (1977) (business record); State v. Altergott, 57 Haw. 492, 502-05 , 559 P.2d 728, 735-37 (1977) (past recollection recorded);Apo v. Dillingham Investment Corp., 57 Haw. 64, 67-69 , 549 P.2d 740, 742-43 (1976) (declaration

2008Because of the policy favoring cross-examination, "[r]estrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence `may not be arbitrary or disproportionate to the purposes they are designed to serve.'" [9] Michigan v. Lucas, 500 U.S. 145, 151 , 111 S.Ct. 1743 , 114 L.Ed.2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55-56 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987) (holding that a state rule excluding all posthypnosis testimony impermissibly infringes on a defendant's right to testify)); see Chambers v. Mississippi, 410 U.S. 284, 302 , 93 S.Ct. 1038 ,

2008Because of the policy favoring cross-examination, "[r]estrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence `may not be arbitrary or disproportionate to the purposes they are designed to serve.'" [9] Michigan v. Lucas, 500 U.S. 145, 151 , 111 S.Ct. 1743 , 114 L.Ed.2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55-56 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987) (holding that a state rule excluding all posthypnosis testimony impermissibly infringes on a defendant's right to testify)); see Chambers v. Mississippi, 410 U.S. 284, 302 , 93 S.Ct. 1038 ,

2023HRE Rule 802.1 recognizes an inconsistent statement as an exception to the hearsay rule when, among other things, "the statement is offered in compliance with rule 613(b)[.]" HRE Rule 802.1 17 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER abuse." State v. Eid, 126 Hawaiʻi 430, 440, 272 P.3d 1197, 1207 (2012) (quoting State v. Assaye, 121 Hawaiʻi 204, 210, 216 P.3d 1227, 1233 (2009)).

2010Assaye, 121 Hawai'i at 214 n. 8, 216 P.3d at 1237 n. 8 (noting the absence of the speed cheek laser gun calibration logs and testimony by officer that such logs would be kept in department files, but were not submitted into evidence); Manewa, 115 Hawai'i at 357 , 167 P.3d at 350 (holding that no proper foundation was laid showing that a drug scale was properly calibrated because the lab technician “did not know how to calibrate or service the balance, no service representative testified as to his or her calibration of the balance, and no business record was introduced into evidence in lieu of

2023See id.; Mattos, 140 Hawai‘i at 30-32, 398 P.3d at 619-21 .

2019To qualify as such admissible evidence, a declaration in support of a motion for summary judgment under Hawai'i Rules of Civil Procedure (HRCP) Rule 56(e) (2000), 6 "must be based on personal knowledge, contain facts that would be admissible in evidence, and show that the declarant is competent to testify as to the matters contained within the declaration." Id. at 44 , 414 P.3d at 96 (quoting Mattos , 140 Hawai'i at 30 , 398 P.3d at 619 ).

2018Reliability may be inferred if the statement falls within a firmly rooted exception to the hearsay rule, or it "may be demonstrated 'upon a showing of particularized guarantees of trustworthiness.' " Id. (quoting Ortiz , 74 Haw. at 361 , 845 P.2d at 556 ).

2012(Footnotes omitted.) (Emphases added.) In State v. Sua, 92 Hawai'i 61, 75 , 987 P.2d 959, 973 (1999), this court upheld the admission of a witness’s statement as past recollection recorded where the witness, “wrote the statement himself, indicating that he ‘once had knowledge’ of the information contained therein[;] ... signed the statement, thereby adopting it as his own[;] ... the statement was made less than a month after the incident, [and] we may fairly infer that it was given when the events were still ‘fresh [in the witness’s] memory[]’[;] [and where the witness] testified at trial that

2018"The interpretation of a statute is a question of law reviewable de novo." Kauai Springs, Inc. v. Planning Comm'n of Cty. of Kaua'i , 133 Hawai'i 141 , 163, 324 P.3d 951 , 973 (2014) (quoting Franks v. City & Cty. of Honolulu , 74 Haw. 328 , 334, 843 P.2d 668 , 671 (1993) ). "[W]here the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and the appropriate standard for appellate review is the right/wrong standard." *489 State v. Moore , 82 Hawai'i 202 , 217, 921 P.2d 122 , 137 (1996) (internal quotation marks and citation omitted)

2018"The interpretation of a statute is a question of law reviewable de novo." Kauai Springs, Inc. v. Planning Comm'n of Cty. of Kaua'i , 133 Hawai'i 141 , 163, 324 P.3d 951 , 973 (2014) (quoting Franks v. City & Cty. of Honolulu , 74 Haw. 328 , 334, 843 P.2d 668 , 671 (1993) ). "[W]here the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and the appropriate standard for appellate review is the right/wrong standard." *489 State v. Moore , 82 Hawai'i 202 , 217, 921 P.2d 122 , 137 (1996) (internal quotation marks and citation omitted)

2018"The interpretation of a statute is a question of law reviewable de novo." Kauai Springs, Inc. v. Planning Comm'n of Cty. of Kaua'i , 133 Hawai'i 141 , 163, 324 P.3d 951 , 973 (2014) (quoting Franks v. City & Cty. of Honolulu , 74 Haw. 328 , 334, 843 P.2d 668 , 671 (1993) ). "[W]here the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and the appropriate standard for appellate review is the right/wrong standard." *489 State v. Moore , 82 Hawai'i 202 , 217, 921 P.2d 122 , 137 (1996) (internal quotation marks and citation omitted)

2018"The interpretation of a statute is a question of law reviewable de novo." Kauai Springs, Inc. v. Planning Comm'n of Cty. of Kaua'i , 133 Hawai'i 141 , 163, 324 P.3d 951 , 973 (2014) (quoting Franks v. City & Cty. of Honolulu , 74 Haw. 328 , 334, 843 P.2d 668 , 671 (1993) ). "[W]here the admissibility of evidence is determined by application of the hearsay rule, there can be only one correct result, and the appropriate standard for appellate review is the right/wrong standard." *489 State v. Moore , 82 Hawai'i 202 , 217, 921 P.2d 122 , 137 (1996) (internal quotation marks and citation omitted)

2011See Keus, 652 A.2d at 478-79 (noting that only "if the basis material is independently admissible under a hearsay exception may it be used substantively"). [24] Tabieros also noted that HRE Rule 705, quoted below, which allows an expert to give an opinion without disclosing the underlying facts or data, was intended to eliminate the burdensome practice of requiring attorneys to formulate hypothetical questions in the instances where the expert "bases" his opinion upon other than firsthand knowledge. 85 Hawai'i at 384 , 944 P.2d at 1327 .

2011See Keus, 652 A.2d at 478-79 (noting that only "if the basis material is independently admissible under a hearsay exception may it be used substantively"). [24] Tabieros also noted that HRE Rule 705, quoted below, which allows an expert to give an opinion without disclosing the underlying facts or data, was intended to eliminate the burdensome practice of requiring attorneys to formulate hypothetical questions in the instances where the expert "bases" his opinion upon other than firsthand knowledge. 85 Hawai'i at 384 , 944 P.2d at 1327 .