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. [L 1980, c 164, pt of §1; am L 1992, c 191, §2(7)]

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 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.

Rules of Court

  Expert witnesses, see HRPP rule 28(a).

Law Journals and Reviews

  The Protection of Individual Rights Under Hawai‘i's Constitution.  14 UH L. Rev. 311 (1992).

  Expert and Opinion Testimony of Law Enforcement Officers Regarding Identification of Drug Impaired Drivers.  23 UH L. Rev. 151 (2000).

  Scientific Expert Admissibility in Mold Exposure Litigation:  Establishing Reliability of Methodologies in Light of Hawai‘i's Evidentiary Standard.  26 UH L. Rev. 99 (2003).

Case Notes

  Witness was qualified to testify as expert.  64 H. 302, 640 P.2d 286 (1982).

  Medical examiner's conclusion that death occurred by homicide was inadmissible.  70 H. 509, 778 P.2d 704 (1989).

  Use of expert testimony in child abuse cases, discussed.  71 H. 552, 799 P.2d 48 (1990).

  Expert testimony in child abuse case inadmissible as an opinion as to the child's credibility.  72 H. 527, 825 P.2d 1051 (1992).

  Admissibility of novel scientific evidence discussed, focusing on DNA profiling evidence.  73 H. 130, 828 P.2d 1274 (1992).

  Expert testimony necessary to establish reasonable probability of future pain and suffering.  74 H. 1, 837 P.2d 1273 (1992).

  Trial court did not abuse its discretion by excluding proffered expert testimony on hedonic damages, where the proffered testimony was based on willingness-to-pay approach.  77 H. 282, 884 P.2d 345 (1994).

  Trial court did not abuse its discretion in ruling that psychiatrist's testimony regarding cause of [decedent's] death would assist the trier of fact and that it was not untrustworthy or speculative.  78 H. 230, 891 P.2d 1022 (1995).

  Trial court properly limited chemical engineer's testimony to matters within the engineer's background, experience, and training, that is, within the field of chemical engineering; court did not abuse its discretion in limiting testimony of one of plaintiff's treating physicians, a general practitioner, where nothing in the physician's background or experience suggested physician would be competent to testify regarding the effects of silicone on the human body.  78 H. 287, 893 P.2d 138 (1995).

  Testimony of domestic violence expert was relevant, specialized knowledge that would assist jury in determining whether defendant was under the influence of extreme mental disturbance when defendant killed wife.  80 H. 172, 907 P.2d 758 (1995).

  Domestic violence expert properly allowed to testify that victims of domestic violence often recant allegations of abuse.  83 H. 289, 926 P.2d 194 (1996).

  Criminologist was qualified as an expert and provided relevant, specialized knowledge, unknown to the average juror, which would assist jury in determining whether ammunition casings found at crime scene had been fired from rifle defendant had fired.  83 H. 507, 928 P.2d 1 (1996).

  As scientific principles and procedures underlying hair and fiber evidence are well-established and of proven reliability, evidence could be treated as "technical knowledge"; independent reliability determination under rule 104 thus unnecessary.  85 H. 462, 946 P.2d 32 (1997).

  Two-pronged standard of review adopted for challenges to expert evidence under this rule; court did not commit plain error in admitting expert evidence of the Widmark formula for the purpose of ascertaining defendant's blood alcohol concentration level at the time of defendant's arrest.  95 H. 94, 19 P.3d 42 (2001).

  Trial court did not abuse its discretion in qualifying witness as an expert in the field of metallurgy and corrosion analysis where, irrespective of the fact that witness was employed as a stockbroker and had little recent experience, witness had earned degrees in metallurgy and engineering and had some work experience involving corrosion issues in water pipes; it is not necessary for expert witness to have the highest possible qualifications to enable him or her to testify as an expert.  100 H. 97, 58 P.3d 608 (2002).

  Trial court did not abuse discretion in excluding defendant's expert witness' videotape where, based on five factors, the record demonstrated that trial court had sufficient reason to question the reliability, and even relevance, of the accident reconstruction video.  100 H. 356, 60 P.3d 306 (2002).

  Where officer testified that officer received field training in the testing and identification of illegal drugs and drug paraphernalia and knew through training and experience how a pipe like that recovered from defendant is used to smoke crystal methamphetamine, prosecution had laid sufficient foundation establishing officer's knowledge and experience; thus, trial court did not err in allowing officer to testify that residue contained in pipe recovered from defendant may have been an amount sufficient to be used. 100 H. 498, 60 P.3d 899 (2002).

  Circuit court's failure to formally qualify two witnesses as experts in the field of ballistics did not affect petitioner's substantial rights and did not preclude the admission of the testimony of the two witnesses into evidence under this rule.  The plain language suggests that to testify as an expert witness, one need only possess the requisite knowledge, skill, experience, training or education to offer an opinion on a subject requiring scientific, technical or other specialized knowledge and does not indicate that the trial court must formally qualify a witness as an expert in front of the jury before the witness' testimony can properly be admitted.  Moreover, nothing in the Hawaii rules of evidence would preclude a trial court from declining to qualify a witness as an expert in front of the jury, so long as the requisite foundation for the witness' testimony is established.  129 H. 206, 297 P.3d 1062 (2013).

  Firearms instructor's testimony properly allowed by circuit court where the instructor's testimony established that the instructor had the requisite skill, knowledge, experience, training, or education with the use, identification and operation of shotguns to testify regarding pattern tests performed with a shotgun recovered from the investigation and that the instructor's testimony regarding the tests the instructor conducted had a reliable base in the knowledge and experience of the instructor's discipline and rested on a reliable foundation; thus, instructor's expertise in the use and operation of firearms was sufficient to meet the foundational requirements of this rule.  129 H. 206, 297 P.3d 1062 (2013).

  Forensic pathologist's testimony properly allowed by circuit court where the record established that forensic pathologist was capable of concluding that victim's cause of death was a shotgun injury to the back at a distance of approximately sixty feet, and that such a conclusion had a reliable basis in the knowledge and experience of the forensic pathologist's discipline and rested on a reliable foundation.  129 H. 206, 297 P.3d 1062 (2013).

  Trial courts should not require a "reasonable degree of scientific certainty" before admitting expert opinions, but may exclude expert testimony based on speculation or possibility.  The circuit court plainly erred in precluding defense expert's testimony with regard to the probable effects of cocaine on the victim at the time of the shooting.  131 H. 463, 319 P.3d 382 (2014).

  Expert's testimony that child's knowledge of sexual terms and activities were consistent with characteristics of sexually abused child was of assistance to jury in understanding origin of child's actions and words and not unduly prejudicial.  8 H. App. 638, 819 P.2d 1122 (1991).

  Family court did not abuse its discretion when it decided that witness was an expert in domestic violence and when it entered decisions with respect to witness' testimony.  9 H. App. 496, 850 P.2d 716 (1993).

  Trial court did not err in precluding witness from expressing opinion, since record disclosed that witness was never qualified as an "expert by knowledge, skill, experience, training, or education" in accordance with this rule.  79 H. 342 (App.), 902 P.2d 977 (1995).

  Doctor properly qualified as expert witness where doctor licensed in two states, practiced for twenty years, and performed over five hundred breast augmentation operations.  86 H. 93 (App.), 947 P.2d 961 (1997).

  Although it may have been error admitting into evidence, as expert opinion under this rule, officer's testimony concerning §712-1231(b), the social gambling defense, where defendant was not entitled to this defense in a prosecution for promoting gambling in the first degree under §712-1221(1)(c), error was harmless.  92 H. 98 (App.), 987 P.2d 996 (1999).

  Trial court properly admitted fingerprint examiner's expert testimony that expert positively identified the latent fingerprint as belonging to defendant; evidence presented established that expert's testimony was reliable and that trial court was well within its discretion in finding that expert's testimony satisfied the reliability prong of this rule.  109 H. 359 (App.), 126 P.3d 402 (2005).

  Without some evidence showing that drug money was not contaminated by police, State failed to lay a sufficient foundation for the admission of the dog-sniff evidence under this rule; thus, trial court erred in admitting dog-sniff evidence and refusing to strike it.  110 H. 129 (App.), 129 P.3d 1157 (2006).

  As the use of an expert to comment on or rebut other testimony presented at trial is allowable and expected, trial court abused its discretion in precluding doctor from testifying as to the cause of bruises and marks on vehicle accident victim's thorax and left side of body to rebut testimony by victim's brother; as exclusion of testimony denied defendant a fair trial, trial court's judgment vacated.  121 H. 143 (App.), 214 P.3d 1133 (2009).

  Based on doctor's credentials and experience, doctor was qualified to testify about the results of doctor's surrogate study showing no seatbelt loading marks where such marks should have been if victim had been wearing the seatbelt at the time of the crash; doctor had completed a residency with the Navy in aerospace medicine, had been qualified by other trial courts as a biomechanical expert, had consulted on approximately one thousand motor vehicle cases and had taught courses in biomechanics and injury causation analysis.  121 H. 143 (App.), 214 P.3d 1133 (2009).

  Circuit court erred in admitting federal agent's opinion testimony that revolver recovered from defendant's car had been recently fired, "within the same day, probably eight hours or so", which was particularly significant as it provided a direct link between the firing of the gun and victim's murder, where: (1) State did not set forth sufficient foundation for admission of this time-frame testimony as lay opinion; (2) the agent's opinion on the time frame in which defendant's gun had been fired required expert testimony; and (3) the State did not satisfy the foundational requirements for admission of the time-frame testimony as expert testimony.  122 H. 2 (App.), 222 P.3d 409 (2010).