Rule 803  Hearsay exceptions; availability of declarant immaterial.  The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

     (a)  Admissions.

     (1)  Admission by party-opponent.  A statement that is offered against a party and is (A) the party's own statement, in either the party's individual or a representative capacity, or (B) a statement of which the party has manifested the party's adoption or belief in its truth.

     (2)  Vicarious admissions.  A statement that is offered against a party and was uttered by (A) a person authorized by the party to make such a statement, (B) the party's agent or servant concerning a matter within the scope of the agent's or servant's agency or employment, made during the existence of the relationship, or (C) a co-conspirator of the party during the course and in furtherance of the conspiracy.

     (3)  Admission by deceased in wrongful death action.  A statement by the deceased, offered against the plaintiff in an action for the wrongful death of that deceased.

     (4)  Admission by predecessor in interest.  When a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest exists or existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is as admissible against the party as it would be if offered against the declarant in an action involving that right, title, or interest.

     (5)  Admission by predecessor in litigation.  When the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty.

     (b)  Other exceptions.

     (1)  Present sense impression.  A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

     (2)  Excited utterance.  A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

     (3)  Then existing mental, emotional, or physical condition.  A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

     (4)  Statements for purposes of medical diagnosis or treatment.  Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

     (5)  Reserved.

     (6)  Records of regularly conducted activity.  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made in the course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with rule 902(11) or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.

     (7)  Absence of entry in records kept in accordance with the provisions of paragraph (6).  Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

     (8)  Public records and reports.  Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

     (9)  Records of vital statistics.  Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

    (10)  Absence of public record or entry.  To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

    (11)  Records of religious organizations.  Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

    (12)  Marriage, baptismal, and similar certificates.  Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

    (13)  Family records.  Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

    (14)  Records of documents affecting an interest in property.  The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

    (15)  Statements in documents affecting an interest in property.  A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless the circumstances indicate lack of trustworthiness.

    (16)  Statements in ancient documents.  Statements in a document in existence twenty years or more the authenticity of which is established.

    (17)  Market reports, commercial publications.  Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

    (18)  Learned treatises.  To the extent called to the attention of an expert witness upon cross-examination or relied upon by the witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.  If admitted, the statements may be read into evidence but may not be received as exhibits.

    (19)  Reputation concerning personal or family history.  Reputation among members of the person's family by blood, adoption, or marriage, or among the person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of the person's personal or family history.

    (20)  Reputation concerning boundaries or general history.  Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.

    (21)  Reputation as to character.  In proving character or a trait of character under rules 404 and 405, reputation of a person's character among the person's associates or in the community.

    (22)  Judgment of previous conviction.  Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused.  The pendency of an appeal may be shown but does not affect admissibility.

    (23)  Judgment as to personal, family or general history, or boundaries.  Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

    (24)  Other exceptions.  A statement not specifically covered by any of the exceptions in this paragraph (b) but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (B) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.  However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. [L 1980, c 164, pt of §1; gen ch 1985; am L 2002, c 134, §4]

 

RULE 803 COMMENTARY

 

  This rule differs from Fed. R. Evid. 803 in several respects.  It eliminates federal rule 803(5), recorded recollection, which is treated in Rule 802.1 supra, and incorporates the general provisions of federal rule 801(d)(2), party admissions, which are treated here, in paragraph (a), as exceptions to the hearsay rule rather than as non-hearsay.  In addition, three of the present admission rules, 803(a)(3), (4), and (5), contain hearsay exceptions not found in the federal rules:  statements by decedents in wrongful death actions, admissions by predecessors in interest, and admissions by predecessors in litigation.  Also, the federal rules formulation of the exception for regularly conducted activity, 803(6), is expanded here to include all forms of regularly conducted activity whose records are regularly and reliably prepared and maintained, rather than just "business activity."  Finally, non-substantive changes are effected in Rule 803(b)(21) and (24).

  As the title of Rule 803 suggests, the various exceptions to the hearsay ban collected in this rule do not depend upon the present status or whereabouts of the declarant.  The rationales for paragraphs (a) and (b) of this rule differ markedly, but the current availability of the declarant as a witness is in all instances immaterial to the question of admissibility.  This factor is the principal distinguishing characteristic between this rule and Rule 804 infra.

  Paragraph (a):  This paragraph includes those statements categorized as "admission[s] by party-opponent[s]" in Fed. R. Evid. 801(d)(2) and several additional categories, paragraph (a)(3), (4) and (5), based upon the Cal. Evid. Code.  The subject matter of admissions was recently addressed by the Hawaii Supreme Court in Kekua v. Kaiser Foundation Hosp., 61 H. 208, 217, 601 P.2d 364, 371 (1979):  "The extrajudicial statements of a party-opponent, when offered against the same, are universally deemed admissible at trial as substantive evidence of the fact or facts stated."  As the Kekua court recognized, there are two conditions of admissibility under this paragraph:  (1) that the statement was made by a party to the litigation, and (2) that the statement now be offered against that party.  The rationale, according to the Advisory Committee's Note to Fed. R. Evid. 801(d)(2), is that admissions are "the result of the adversary system....  No guarantee of trustworthiness is required in the case of an admission."  In other words, it has always seemed essentially fair to allow the use against a party of his previous statements concerning the subject matter of the current litigation.  For this reason, the Advisory Committee's Note commends "generous treatment of this avenue to admissibility."

  The adversary justification for admissions serves to explain the absence of any requirement that these statements be against interest when made.  The only requirement is that they be relevant, see Rule 401.  The Hawaii Supreme Court pointed out in Kekua v. Kaiser Foundation Hosp., supra, 61 H. at 216 n. 3, 601 P.2d at 370 n. 3:

The expression "admissions against interest" is a misnomer.  Appellants have apparently confused "party admissions"... with "statements against interest."  [See Rule 804(b)(3) infra.] ... [P]arty admissions, unlike statements against interest, need not have been against the declarant's interest when made, need not be based on the declarant's personal knowledge, may be in the form of an opinion, and are admissible at trial regardless of whether the declarant is unavailable.

  Paragraph (a)(1):  The "admission by party-opponent" defined in this paragraph is the classic form of an admission, see Kekua v. Kaiser Foundation Hosp., supra; Christensen v. State Farm Mutual Auto Ins. Co., 52 H. 80, 83-84, 470 P.2d 521, 524 (1970).  "[A]ny statement made by a party to an action, and which reasonably tends to prove or disprove a material fact in the case, is competent to be put in evidence against him in the trial of that action," Bonacon v. Wax, 37 H. 57, 61 (1945).  Statements or confessions made by and offered against accused in criminal cases are actually admissions under this rule, see Territory v. Palakiko, 38 H. 490 (1950).

  Regarding adoptive admissions under subparagraph (a)(1)(B), the issue for determination by the court under Rule 104 is whether the party "manifested his adoption or belief" in the truth of a statement made in his presence.  Express assent or agreement presents no problem.  When, however, will silence constitute adoption of the statement?  The Advisory Committee's Note to Fed. R. Evid. 801(d)(2)(B) supplies the answer:  "When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue.  The decision in each case calls for an evaluation in terms of probable human behavior."  In other words, statements made in the presence of a person who is now a party are not invariably "adopted" by that person; the issue is whether, in context, the statement was of such a nature that the person would reasonably have been expected to deny the statement if it were untrue.  In criminal cases, "adoptive" admissions by defendants in custody are generally ruled out by Doyle v. Ohio, 426 U.S. 610 (1976); but see State v. Alo, 57 H. 418, 558 P.2d 1012 (1976).

  Paragraph (a)(2):  The treatment in this paragraph of vicarious admissions by agents, servants, and co-conspirators follows that of Fed. R. Evid. 801(d)(2)(C), (D), and (E). Regarding servants, the common-law criterion was whether the making of the statement was within the scope of the agent's employment.  However, "since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion of the statement."  Fed. R. Evid. 801(d)(2)(D), Advisory Committee's Note.  The present rule admits the agent's or servant's statement so long as it concerns "a matter within the scope of his agency or employment."

  Hawaii courts have routinely admitted the statements of co-conspirators as admissions against all the members of the conspiracy.  "[E]vidence of acts and declarations done or made in furtherance of the common purpose during the existence of the conspiracy, though subsequent to the offense charged, is admissible against all of the conspirators," State v. Yoshino, 45 H. 206, 214, 364 P.2d 638, 644 (1961).

  Paragraph (a)(3):  This paragraph, admitting statements by decedents in wrongful death actions, is based upon Cal. Evid. Code §1227, which provides the following commentary:  "The plaintiff in a wrongful death action ... stands in reality so completely on the right of the deceased ... person that such person's admissions should be admitted against the plaintiff, even though (as a technical matter) the plaintiff is asserting an independent right."

  Paragraph (a)(4):  This paragraph, governing admissions by predecessors in interest, has a solid foundation in Hawaii case law.  "Privity between a declarant and a party renders a declaration of the former admissible against the latter," Tanaka v. Mitsunaga, 43 H. 119, 126 (1959).  This rule is similar to Cal. Evid. Code §1225.

  Paragraph (a)(5):  This paragraph is identical with Cal. Evid. Code §1224, which provides the following commentary:

Much of the evidence within this section is also covered by [the rule] which makes declarations against interest admissible.  However, to be admissible [as a declaration against interest] the statement must have been against the declarant's interest when made; this requirement is not stated in [this rule]....

  [This rule] refers specifically to "breach of duty" in order to admit statements of a declarant whose breach of duty is in issue without regard to whether that breach gives rise to a liability of the party against whom the statements are offered or merely defeats a right being asserted by that party.

  Paragraph (b):  The exceptions to the hearsay ban collected in this paragraph track the exceptions found in Fed. R. Evid. 803.  Both the hearsay rule and the various exceptions involve the issue of trustworthiness of extrajudicial statements.  Hearsay, even though relevant, is excluded because its trustworthiness is suspect.  Each of the exceptions in this paragraph, however, is thought to be characterized by a degree of trustworthiness and reliability sufficient to warrant admitting the hearsay regardless of the current availability of the declarant.  See the Advisory Committee's Note to Fed. R. Evid. 803:  "The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available."  Compare the "unavailability" requirement of Rule 804 infra.

  Paragraph (b)(1) and (2):  These rules governing the receipt of present sense impressions and excited utterances are identical with Fed. R. Evid. 803(1) and (2).  Hawaii courts have admitted excited utterances under the broad aegis of res gestae, see Territory v. Kinoshita, 38 H. 335 (1949).  "A declaration to be part of the res gestae need not be strictly contemporaneous with the transaction or event to which it relates; it is enough that it was a spontaneous utterance engendered by the excitement of the main event made immediately after and under the influence of the occurrence and so connected with it as to characterize or explain it."  Anduha v. County of Maui, 30 H. 44, 51 (1920).  Note, however, that exception (2) requires only that the statement relate to the event, while exception (1) is limited to statements that describe or explain the event.

  Both exceptions rely on spontaneity to assure the trustworthiness of the statements.  The requirement of contemporaneousness for present sense impressions further assures reliability by precluding errors caused by memory defects.  Excited utterances, which need not be strictly contemporaneous, are considered trustworthy because made "under the stress of excitement."  As a final safeguard, a statement admitted under either exception will usually have been made to someone present at the event, who would therefore have been in good position to challenge inaccuracies in describing or recounting the event.  See McCormick §298.

  Paragraph (b)(3):  This rule is identical with Fed. R. Evid. 803(3) which, according to the Advisory Committee's Note, is a special application of the present sense impressions exception.

  Hawaii courts have recognized this hearsay exception.  In Teixeira v. Teixeira, 37 H. 64, 71 (1945), the court observed:  "Intentions are purely mental.  The condition of a person's mind ... may only be judged by his former acts and conduct....  Of necessity to ascertain his state of mind or his condition of mind at and prior to his performance of the jural act under investigation [an alleged deed of gift], resort may be had to the usual and ordinary human manifestations of intention and of condition of mind, viz., his conduct and statements and declarations made by him in relation to the subject matter involved."  The Teixeira court cited approvingly Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), which admitted a direct statement of intent as evidence of the probable future performance of the act intended.  The Hillmon rule is also incorporated in exception (3).

  If a statement reflects state of mind only circumstantially, e.g., Territory v. Duvauchelle, 28 H. 350 (1925), where a murder victim's statement that his fishpond had been robbed was admitted as evidence of his probable intent to guard the pond, it may be admitted as non-hearsay.  See the comment to Rule 801 supra.  However, as one authority points out:  "[T]here does not seem to be a single practical consequence that may or may not ensue according to whether the evidence is received as original [non-hearsay] or received by way of exception to the hearsay rule," Cross, Evidence 475 (3d ed. 1967).

  Paragraph (b)(4):  This exception, which is identical with Fed. R. Evid. 803(4), liberalizes the common-law rule that admitted only statements made for the purpose of medical treatment, see, e.g., Cozine v. Hawaiian Catamaran, 49 H. 77, 412 P.2d 669 (1966).  Statements made for purposes of treatment are admitted "in view of the patient's strong motivation to be truthful."  Fed. R. Evid. 803(4), Advisory Committee's Note.  Statements made for diagnostic purposes only, while not similarly motivated, would be recited in any event by a testifying physician under Rule 703.  Were these statements not substantively admissible, a limiting instruction would be necessary, and "[t]he distinction thus called for [is] one most unlikely to be made by juries."  Advisory Committee's Note, supra.  This difficulty is avoided by providing for substantive admissibility of all "reasonably pertinent" statements made for purposes of treatment or diagnosis.

  On the question whether a statement is "reasonably pertinent to diagnosis or treatment," the Advisory Committee's Note to Fed. R. Evid. 803(4) suggests:  "Thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light."

  Paragraph (b)(6) and (7):  These exceptions are based upon Fed. R. Evid. 803(6) and (7) and a prior statute, Hawaii Rev. Stat. §622-5 (1976) (repealed 1980) (originally enacted as L 1941, c 218, §§1, 2, 3; am L 1972, c 104, §2(e)).  However, both the federal rules and the prior Hawaii statute limited admissibility to records of regularly conducted business activities, while the present rule has no such limitation.  On the other hand, both the federal rule and the prior statute defined "business" very broadly as including businesses, professions, occupations, and even nonprofit institutions.  See, e.g., State v. Torres, 60 H. 271, 589 P.2d 83 (1978) (hospital business).  The modification is therefore not a substantial one.  In any event, the hallmark of reliability in this area is not the nature of the business or activity but rather its "regularity and continuity which produce habits of precision, [the] actual experience of business in relying upon [the records], [and the] duty to make an accurate record as part of a continuing job or occupation."  Fed. R. Evid. 803(6), Advisory Committee's Note.  A further safeguard is that preliminary determination of the trustworthiness of such records is discretionary with the court.

  Hawaii judicial decisions reflect concern with these indicia of trustworthiness rather than with the nature of the "business."  In holding inadmissible a series of accident reports based on accounts by bystander witnesses not employed by the institution maintaining the records, the court observed that "an entry based on facts observed and reported by one without a business duty to observe and report such facts is [not] admissible as proof of the facts," Warshaw v. Rockresorts, 57 H. 645, 650, 562 P.2d 428, 433 (1977).  In ruling on the admissibility of a police report of a burglary complaint, the court held that it could be offered as a business record but only as proof that such a complaint had been made, not as proof of the correctness of facts reported in the complaint.  Territory v. Makaena, 39 H. 270 (1952).  These decisions are unaffected by the new rule.  However, whenever a record is characterized by indicia of trustworthiness, the courts have consistently admitted it as substantive evidence.  In State v. Ing, 53 H. 466, 497 P.2d 575 (1972), the court held that records of the routine and regular testing of the speedometers on police vehicles were admissible not only to prove that such tests had been made but also as evidence of the accuracy of the speedometers.  So long as all informants act pursuant to a business duty, the fact that a record may contain multiple hearsay does not affect its admissibility under this rule, compare Warshaw v. Rockresorts, supra.

  Although the absence of an entry in a record is not, in and of itself, a "statement ... offered in evidence to prove the truth of the matter asserted," and is therefore technically not hearsay, it does present the issue of the correlation between non-entry in the record and nonoccurrence of the event.  Most authorities have therefore treated the non-entry as a direct hearsay issue, and exception (7) resolves the problem.

  Paragraph (b)(8), (9), and (10):  The Advisory Committee's Note to Fed. R. Evid. 803(8) states:  "Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record."  This justification is equally applicable to exceptions (8), (9), and (10), which are identical with Fed. R. Evid. 803(8), (9), and (10).  In most instances, reliability is further assured by the same factors that justify admission under exceptions (6) and (7).

  Traditional common law doctrine has consistently recognized the admissibility of public records under a hearsay exception, predicated on the same general indicia of reliability and trustworthiness as for business records, see, e.g., Rex v. Lenehan, 3 H. 714 (1876), holding that the official record of the issuance of a liquor license was admissible as proof that the license was issued.  More recently the courts have tended to admit public records under the broad aegis of the business records statute, see, e.g., State v. Ing, 53 H. 466, 497 P.2d 575 (1972), holding police department speedometer test records admissible under a business records exception.

  Paragraph (b)(8)(C), dealing with evaluative reports, clarifies a point about which the common-law cases were divided, see the Advisory Committee's Note to Fed. R. Evid. 803(8)(C).  The Note suggests:  "Factors which may be of assistance in passing upon the admissibility of evaluative reports include:  (1) the timeliness of the investigation.... (2) the special skill or experience of the official.... (3) whether a hearing was held and the level at which conducted.... (4) possible motivation problems suggested by Palmer v. Hoffman, 318 U.S. 109 (1943).  Others no doubt could be added."

  Exception (9) is mostly a specialized application of exception (8).  The informant, if not a public official himself, is usually a physician or clergyman who reports the statistic pursuant to a legal duty.  It is consistent with Hawaii Rev. Stat. §338-12 (1976), providing that vital statistics records "shall be prima facie evidence of the facts therein stated."  And see Republic v. Waipa, 10 H. 442 (1896), holding that a marriage certificate was admissible to prove the fact of the marriage of the defendant, even in the absence of proof of the actual marriage ceremony.

  Exception (10) is in all respects analogous to exception (7).

  Paragraph (b)(11) and (12):  These exceptions are quite similar to exception (6), relating to records of regularly conducted activities, except that exception (11) "contains no requirement that the informant be in the course of the activity."  Fed. R. Evid. 803(11), Advisory Committee's Note.

  In Uuku v. Kaio, 21 H. 710, 723 (1913), the court noted: "[T]he facts of baptism and membership in a religious body are often recorded, with accompanying explanatory notes relating to parentage and date of birth, on books maintained for the purpose by the religious body.  It is common practice for those preparing the proofs on issues of Hawaiian pedigree to inquire at the churches, or other headquarters of the religious organizations, for such records and to examine them when found for the desired information."

  Paragraph (b)(13):  This exception is identical with Fed. R. Evid. 803(13), and is consistent with previous Hawaii case law, see Uuku v. Kaio, 21 H. 710, 715 (1913) (leaves from a family Bible).

  Paragraph (b)(14):  Identical with Fed. R. Evid. 803(14), this rule accords with Hawaii Rev. Stat. §502-82 (1976), which similarly provides that "[t]he record of an instrument ... may also be read in evidence, with like force and effect as the original instrument."  See also Hong Quon v. Chea Sam, 14 H. 276 (1902), which held that the record of a title deed, and the certified copy of that record, were admissible in evidence even though they were in conflict with the express terms of the original certificate of title.  The Hawaii court has also affirmed the liberal rule that the fact of recordation constitutes independent prima facie evidence of delivery of title.  Boteilho v. Boteilho, 58 H. 40, 564 P.2d 144 (1977).

  Paragraph (b)(15):  This exception is identical with Fed. R. Evid. 803(15).  The general circumstances under which documents of conveyance and similar instruments are usually executed provide a strong circumstantial guarantee of trustworthiness, justifying the admissibility under a hearsay exception of facts contained in them.  In Apo v. Dillingham Investment Corp., 57 H. 64, 549 P.2d 740 (1976), the court expressly cited Fed. R. Evid. 803(15) as persuasive authority for substantive admission of pedigree statements in a deed as proof of family relationship.

  Paragraph (b)(16):  This exception, which is identical with Fed. R. Evid. 803(16), accords generally with the common law rule admitting ancient documents as substantive evidence.  However, it liberalizes the conventional requirement that the document be at least 30 years old.  As the exception suggests, ancient documents offer the dual issue of admissibility of content under a hearsay exception and authentication of the document as a whole.  The hearsay exception, therefore, is made conditional upon the foundation requirement of authentication.  See Rule 901(b)(8) infra.  The Advisory Committee's Note to Fed. R. Evid. 803(16) suggests:  "As pointed out in McCormick §298, danger of mistake is minimized by authentication requirements, and age affords assurance that the writing antedates the present controversy."

  Paragraph (b)(17):  This exception is identical with Fed. R. Evid. 803(17).  See 6 Wigmore, Evidence §1704 (Chadbourn rev. 1976); Virginia v. West Virginia, 238 U.S. 202 (1915).  The rationale for the exception is the high probability of trustworthiness of such compilations, the reliance accorded them, and the motivation of the compiler to achieve a high level of accuracy.

  Paragraph (b)(18):  This exception, which is identical with Fed. R. Evid. 803(18), should be read in connection with Rule 702.1(b), relating to the cross-examination of expert witnesses.

  Despite the circumstantial guarantee of the trustworthiness of such evidence provided by the high standards of accuracy customarily required in the learned professions, an unqualified rule of admissibility poses certain dangers.  In the absence of expert interpretation, explanation, or qualification, a lay jury might misinterpret, misapply, or give excessive weight to evidence of this nature.  Consistent with the position adopted in the federal rules, this exception safeguards against these hazards by limiting substantive use of treatises to situations in which an expert is on the stand.

  The Hawaii courts have closely adhered to the strict common law limitation on the use of treatises and technical materials, holding them inadmissible in the absence of an expert witness subject to cross-examination, Sherry v. Asing, 56 H. 135, 157-58, 531 P.2d 648, 663 (1975), and admitting them only for the purpose of testing the qualifications of expert witnesses, Tittle v. Hurlbutt, 53 H. 526, 497 P.2d 1354 (1972), or for impeaching them on cross-examination, Fraga v. Hoffschlaeger, 26 H. 557 (1922).  This rule thus modifies prior case law, see Fraga v. Hoffschlaeger, supra, which precluded any substantive use of learned texts or treatises.  The previously required limiting instruction called for a distinction of great subtlety and questionable merit.  It is difficult to conceive how a statement from an authoritative treatise can be used either to support or to impeach the credibility of an expert witness absent the corollary assumption that it is substantively accurate.  The present exception eliminates that logical inconsistency while avoiding the hazards implicit in uncontrolled admissibility of such evidence.

  The issue of the reliability of the authority or treatise is for the court under Rule 104.

  Paragraph (b)(19):  This exception is identical with Fed. R. Evid. 803(19).  Admissibility of reputation evidence of pedigree and family history is one of the most venerable of the common law hearsay exceptions.  In Whittit v. Miller, 1 H. 82 (139) (1852), the court recognized that the fact of a marriage could be proved by reputation evidence.  In Helekahi v. Laa, 32 H. 1, 6-7 (1931), the court said:  "It is definitely settled that a member of a family may testify to its ramifications based on family history and tradition handed down to him by his ancestors or by his collaterals."

  Paragraph (b)(20):  This exception is identical with Fed. R. Evid. 803(20).  The admission of reputation evidence of land boundaries and events of general history as an exception to the hearsay rule has a firm foundation in traditional common law.

  In Hawaii this form of reputation evidence, especially as it applies to property disputes, has been accorded judicial approbation and admitted as "kamaaina testimony."  Based upon judicial recognition that Hawaii's land laws are unique in that they are based on ancient tradition, custom, practice, and usage, Keelikolani v. Robinson, 2 H. 514 (1862), the courts have admitted and given great weight to "kamaaina testimony."  The term itself was apparently first judicially used and expressly defined in In re Boundaries of Pulehunui, 4 H. 239, 245 (1879):

We use the word "kamaaina" above without translation in our investigation of ancient boundaries, water rights, etc.  A good definition of it would be to say that it indicates ... a person familiar from childhood with any locality.

  More recently, the Hawaii Supreme Court held:  "In this jurisdiction it has long been the rule ... to allow reputation evidence by kamaaina witnesses in land disputes...."  Application of Ashford, 50 H. 314, 440 P.2d 76 (1968).

  The present exception incorporates the Hawaii common law principle of kamaaina testimony as it applies to land disputes and extends it further to "events of general history."  Such an extension of the rule is justified by the same circumstantial assurances of trustworthiness as those applicable to testimony relevant to land issues.

  Paragraph (b)(21):  This exception adds to Fed. R. Evid. 803(21) the phrase, "In proving character or a trait of character under Rules 404 and 405," to make it clear that this rule does not confer independent grounds for admissibility of reputation/character evidence but rather simply overcomes the hearsay objection when relevance is established under Rule 404.

  Paragraph (b)(22):  This exception is identical with Fed. R. Evid. 803(22), the Advisory Committee's Note to which says:  "[The common law decisions] manifest an increasing reluctance to reject in toto the validity of the law's factfinding processes outside the confines of res judicata and collateral estoppel.  While this may leave a jury with the evidence of conviction but without means to evaluate it ... it seems safe to assume that the jury will give it substantial effect unless defendant offers a satisfactory explanation, a possibility not foreclosed by the provision."

  Prior Hawaii law was consistent with this rule, see Asato v. Furtado, 52 H. 284, 474 P.2d 288 (1970); Territory v. Howell, 25 H. 320, 323 (1920).  This rule does not confer admissibility upon judgments of conviction.  Relevance and Rule 403 considerations must always be taken into account.

  Paragraph (b)(23):  This exception is identical with Fed. R. Evid. 803(23), the Advisory Committee's Note to which points out:  "[T]he process of inquiry, sifting, and scrutiny which is relied upon to render reputation reliable is present in perhaps greater measure in the process of litigation."

  To the extent that In re Estate of Cunha, 49 H. 273, 414 P.2d 925 (1966), is to the contrary, see Advisory Committee's Note to Fed. R. Evid. 803(23), its result is superseded by this rule.

  Paragraph (b)(24):  This exception is similar to Fed. R. Evid. 803(24).  Consistent with the overall purpose expressed in Rule 102 of "promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined," this exception provides for a measure of controlled flexibility in the judicial determination of what evidence should be admissible under this class of hearsay exceptions.  The exception is not designed to open the door widely for otherwise inadmissible evidence; and to safeguard against abuse the requirements of trustworthiness and a high degree of relevance circumscribe the exercise of judicial discretion.  Finally, the requirement for prior notification to the adverse party provides a protection against both excessive liberalization and unfair surprise.

 

RULE 803 SUPPLEMENTAL COMMENTARY

 

  The Act 134, Session Laws 2002 amendment expands and simplifies the means of establishing foundation requirements for the hearsay exception for records of regularly conducted activity, Rule 803(b)(6).  Previously, the rule required that the foundation elements be established testimonially by the "custodian [of the records] or other qualified witness".  This is a cumbersome process that the 2002 amendment alleviates by contemplating a written certification as substitute for the viva voce record keeper.  The modification comports with a recent amendment to Fed. R. Evid. Rule 803(6).  The certification can be self-authenticating, Rule 902(11).

 

Rules of Court

 

  Proof of official record, see HRCP rule 44.

 

Law Journals and Reviews

 

  Chief Justice Moon's Criminal Past.  33 UH L. Rev. 755 (2011).

 

Case Notes

 

Absence of entry in regularly conducted activity records.

  The circuit court did not abuse its discretion in determining that moped company owner's testimony regarding the lack of a rental contract was admissible under subsection (b)(7) where the court determined that the company's records bore the indicia of trustworthiness; owner testified that the records were printed with sequential numbers, the contracts dated near the time of defendant's apprehension were in sequential order and all accounted for, but that there was no contract for defendant's moped.  125 H. 417 (App.), 263 P.3d 127 (2011).

 

Admissions.

  Statement not admissible as one against interest because there was no circumstantial guarantee of its trustworthiness.  67 H. 499, 692 P.2d 1158 (1985).

  Officer's testimony regarding defendant's silence following incriminatory statement by unidentified person was inadmissible under adoptive admission exception of rule 803(a)(1).  73 H. 41, 828 P.2d 805 (1992).

  A defendant need not be charged with conspiracy to admit a statement made against defendant under co-conspirator hearsay exception; circuit court not clearly erroneous in finding that co-defendant's statements were made in the course and furtherance of a conspiracy with defendant to illegally burn down nightclub for profit.  76 H. 148, 871 P.2d 782 (1994).

  Plaintiff's proffer of evidence was sufficient to justify trial court's preliminary determination under rule 104 and paragraph (a)(2)(C) of the existence of conspiracies and admission of out-of-court statements where statements of other witnesses taken in context with statements of alleged co-conspirators supported allegations of a conspiracy.  89 H. 91, 969 P.2d 1209 (1998).

  Where trial court did not make an adequate preliminary determination as to whether defendant had adopted relatives' statements as defendant's own and defendant's nonverbal reaction was so ambiguous that it could not reasonably be deemed sufficient to establish that defendant manifested such an adoption, evidence of statements lacked proper foundation, constituted irrelevant and inadmissible hearsay and were thus erroneously admitted.  92 H. 161, 988 P.2d 1153 (1999).

  Whether a defendant has manifested an adoption of or belief in another's statement under paragraph (a)(1)(B) is a preliminary question of fact for the trial judge under rule 104(a).  92 H. 161, 988 P.2d 1153 (1999).

  Where cell phone text messages qualified as statements offered by the State against defendant to show defendant's history of threats against the complainant, the messages were admissions by a party-opponent under paragraph (a)(1); thus, the actual text messages were admissible as an exception to hearsay under paragraph (a)(1), and complainant's testimony about the text messages were admissible because the text messages themselves were admissible under the exception for party admissions.  117 H. 127, 176 P.3d 885 (2008).

  Although trial court erred in concluding that the admissibility of petitioner’s statement regarding having “made a big mistake” was governed by rule 409.5, and also erred by excluding the preceding words “I’m so sorry”, because those words explained the context of the “mistake” comment, the error was harmless beyond a reasonable doubt in light of petitioner’s testimony explaining the statement, and the statement was relevant and admissible as a party admission under paragraph (a)(1).  126 H. 460, 272 P.3d 1227 (2012).

  Trial court did not err in allowing co-defendant/witness' testimony to be used against defendant as a defendant cannot prevent a witness from testifying as to what the witness heard defendant say simply because such testimony might force the defendant to take the stand to explain those statements.  104 H. 517 (App.), 92 P.3d 1027 (2004).

  Where defendant did not include on witness list the physician as an expert witness to be called at trial and represented to the trial court at the pretrial conference that defendant would not call the physician at trial, physician's report did not fall under paragraph (a)(2)(A) as a vicarious admission by a person authorized by the party to make such a statement and report was thus inadmissible.  108 H. 89 (App.), 117 P.3d 821 (2005).

  Where there was nothing in the record to suggest that defendant controlled physician in the performance of physician's medical examination of plaintiff, trial court could not have found that physician was an agent of defendant; thus, record did not support, and trial court erred in admitting physician's report under paragraph (a)(2)(B) as a vicarious admission by a party's agent.  108 H. 89 (App.), 117 P.3d 821 (2005).

 

Excited utterances.

  Declarant's statement not excited utterance where record indicated it was not spontaneous nor was it generated by an excited feeling extending without letup from the event described.  67 H. 499, 692 P.2d 1158 (1985).

  Child relating events which occurred at least a half a day later was not an excited utterance; lay testimony on credibility, discussed.  70 H. 32, 761 P.2d 299 (1988).

  Alleged victim's statements to police in family abuse case were inadmissible as excited utterances.  72 H. 469, 822 P.2d 519 (1991).

  Police officer's testimony improperly admitted where declarant's statement to police not reasonably contemporaneous with event; testimony of declarant's father regarding declarant's out of court statement properly admitted under exception.  Appellant's right to confrontation under article I, §14 of Hawaii constitution violated where prosecution failed to issue trial subpoena to declarant and failed to make a showing of declarant's unavailability.  74 H. 343, 845 P.2d 547 (1993).

  A "very short" time interval between a startling event and an excited utterance, although a factor in the determination, is not a foundational prerequisite to admissibility of a statement under paragraph (b)(2).  82 H. 202, 921 P.2d 122 (1996).

  Statement by shooting victim was made while victim was still under the stress of excitement caused by the shooting though shooting had occurred within the previous half hour; statement thus admissible.  82 H. 202, 921 P.2d 122 (1996).

  Given violent nature of startling event and life-threatening nature of wife's injuries, wife's statements to police and medical personnel were made while under stress of excitement and were not product of reflective thought; statements were thus admissible as substantive evidence of husband's guilt without a limiting instruction.  83 H. 289, 926 P.2d 194 (1996).

  Where the particularized and comprehensive nature of complaining witness' statement, made in response to questioning by police, exceeded a "truly spontaneous outburst", and the statement was detailed, logical and coherent, involving a lengthy narrative of the events of an entire evening, the statement was not delivered while complainant was still "under the stress of excitement"; thus, trial court erred in admitting statement under the excited utterance exception to the hearsay rule under paragraph (b)(2).  109 H. 445, 127 P.3d 941 (2006).

  Looking at the totality of the circumstances, complainant's second statement was not admissible as an excited utterance where the prosecution failed to lay adequate foundation that the statement was not the product of reflective thought; although the incident was violent and the complainant was crying and appeared upset, the prosecution failed to adduce evidence regarding when the complainant made the statement, the "nature and circumstances" of the statement, and the testifying officer may have summarized a lengthy narrative rather than reiterating a discrete statement.  124 H. 130, 238 P.3d 162 (2010).

  Officer's testimony regarding complainant's statement that "my boyfriend beat me up" qualified as an excited utterance because of the violent nature of the event, the short period of time between the incident and the officer's arrival, and the complainant's physical and mental state; also, the statement did not summarize a longer conversation, and the totality of circumstances indicated that complainant's statement was made under the stress of excitement.  124 H. 130, 238 P.3d 162 (2010).

  Child's statement to parent detailing rape and sexual abuse made ten days after event occurred is not part of the res gestae.  2 H. App. 643, 639 P.2d 413 (1982).

  Victim's statements to police in family abuse case were admissible as excited utterances.  8 H. App. 238, 798 P.2d 908 (1990).

  Victim's statement that victim did not have a gun admissible under this exception where statement made while victim under stress of excitement caused by imminent threat of death and statement was related to the "startling event" of facing death.  84 H. 203 (App.), 932 P.2d 340 (1997).

  Where victim's statements to 911 operator were made in the midst of being chased and rammed by a car carrying three large males whom victim believed were trying to kill victim, statements easily satisfied the requirements of paragraph (b)(2) and were thus admissible; the fact that some of the victim's statements were made in response to questions by the 911 operator did not prevent them from qualifying as excited utterances.  106 H. 517 (App.), 107 P.3d 1190 (2005).

 

Judgment of previous conviction.

  Prohibition against admitting nolo contendere convictions under paragraph (b)(22) not applicable when offered to prove fact of previous conviction, not the facts supporting and sustaining previous conviction.  83 H. 507, 928 P.2d 1 (1996).

 

Learned treatises.

  Trial court did not err in declining to reopen the direct testimony of physician, who was not identified as an expert witness in the medical malpractice case, to allow plaintiffs to introduce medical articles where physician did not testify that physician relied on any of the articles to assess patient's condition and there was nothing in the record to indicate that the articles were called to the attention of the expert witness upon cross-examination or relied upon by the witness in direct examination.  119 H. 136 (App.), 194 P.3d 1098 (2008).

 

Present sense impression.

  Victim's statement that victim did not have a gun admissible under this exception where statement described victim's condition of being unarmed and statement was made in substantial contemporaneity of condition.  84 H. 203 (App.), 932 P.2d 340 (1997).

 

Public records.

  Officer's testimony regarding declarant's statements in police form not admissible under paragraph (b)(8)(C).  83 H. 472, 927 P.2d 1355 (1996).

  Redacted judgment of defendant's previous nolo contendere conviction for first degree burglary was admissible under this exception.  83 H. 507, 928 P.2d 1 (1996).

  Affidavits of county administrator of leasehold conversion program fell under the public records and reports exception of paragraph (b)(8)(C) where they were a data compilation by a public agency, and the findings they set forth are purely factual, and resulted from a detailed inquiry that the agency undertook.  110 H. 39, 129 P.3d 542 (2006).

  Although recitation by complainant of police report describing the cell phone text messages would have been inadmissible hearsay under rule 802.1(4) and paragraph (b)(8), where complainant could recall substantial details about the messages prior to reading the report, which suggested that complainant possessed a memory of the messages that only needed refreshment via the report, complainant properly testified about the text messages after viewing the police report pursuant to rule 612.  117 H. 127, 176 P.3d 885 (2008).

  In DUI case, information on log showing breath-testing instrument had been tested for accuracy was admitted under public records and reports exception under (b)(8)(B).  9 H. App. 130, 828 P.2d 813 (1992).

  Where sworn statements made by police intoxilyzer supervisor admitted into evidence pursuant to this rule as public records could not be considered "testimonial" hearsay, the statements were not subject to the requirements of the Sixth Amendment; thus, no showing of the supervisor's unavailability nor a prior opportunity for cross-examination was required prior to admission.  114 H. 396 (App.), 163 P.3d 199 (2007).

 

Records of regularly conducted activity.

  State did not establish a sufficient foundation to admit speed check card as a business record under paragraph (b)(6) where record did not (1) include a certification that complies with HRE rule 902(11) or other statute permitting certification, (2) reflect that officer was testifying as a custodian of the speed check card, or (3) officer's testimony did not adequately establish that there were other indicia of reliability.  122 H. 354, 227 P.3d 520 (2010).

  The admission into evidence, as a business record under paragraph (b)(6), of a speed check card for which a proper foundation was established, would not have violated defendant's Sixth Amendment rights; the speed check card was created in a non-adversarial setting in the regular course of maintaining the officer's vehicle five months prior to the alleged speeding incident and was therefore non-testimonial in nature.  122 H. 354, 227 P.3d 520 (2010).

  When an entity incorporates records prepared by another entity into its own records, they are admissible as business records of the incorporating entity provided that it relies on the records, there are other indicia of reliability, and the requirements of paragraph (b)(6) are otherwise satisfied.  122 H. 354, 227 P.3d 520 (2010).

  Where officer testified that speed check cards were created with the understanding that they would be used in prosecuting speeding cases, the card at issue in the case was created in a non-adversarial setting about five months prior to the alleged speeding incident and was not created for the specific purpose of prosecuting defendant, the circumstances of the speed check cards' creation did not preclude its admission as a business record under paragraph (b)(6).  122 H. 354, 227 P.3d 520 (2010).

 

Reputation.

  Officer's testimony regarding Ewa boundary of Honolulu district, being probative of facts establishing venue under §701-114, was relevant and admissible under paragraph (b)(20).  80 H. 297, 909 P.2d 1112 (1995).

  Testimony of others regarding their observation and knowledge is not reputation testimony.  4 H. App. 584, 671 P.2d 1025 (1983).

 

Statements for purposes of medical diagnosis or treatment.

  Defendant's videotaped reenactment of defendant's role in the events of the day of the murder, upon which psychologist relied for the purpose of diagnosing defendant and which psychologist testified was "good practice" in the field of forensic psychology, qualified as an exception under paragraph (b)(4).  99 H. 542, 57 P.3d 467 (2002).

 

Statements in ancient documents.

  Where statement by son in 1872 lease that son had received the parcel of land from his father was in a document affecting an interest in property, the statement asserted the son's right to transfer the interest in that property, the lease was dated more than twenty years prior to the initiation of this case, and the authenticity of the lease was not disputed, under paragraph (b)(15) and (16), the lease was admissible as an exception to the hearsay rule.  114 H. 56 (App.), 156 P.3d 482 (2006).

 

Statements in documents affecting interest in property.

  Circuit court did not abuse its discretion in considering recitals in deed pursuant to paragraph (b)(15); circumstances did not indicate a lack of trustworthiness regarding statement in deed.  76 H. 402, 879 P.2d 507 (1994).

  Where statement by son in 1872 lease that son had received the parcel of land from his father was in a document affecting an interest in property, the statement asserted the son's right to transfer the interest in that property, the lease was dated more than twenty years prior to the initiation of this case, and the authenticity of the lease was not disputed, under paragraph (b)(15) and (16), the lease was admissible as an exception to the hearsay rule.  114 H. 56 (App.), 156 P.3d 482 (2006).

 

State of mind.

  Declarant's out-of-court statements properly admitted where relevant to prove defendant's motive to kill girlfriend who wanted to leave relationship.  79 H. 468, 903 P.2d 1289 (1995).

  Error to admit complainant's statement that complainant feared being beaten up by boyfriend if complainant was seen talking to officer since most likely inference to be drawn from that statement was that assault by defendant occurred to cause that fear.  80 H. 469 (App.), 911 P.2d 104 (1996).

 

Other exceptions.

  Extra-judicial statements offered to explain officer's conduct during investigation, but not for their truth.  64 H. 232, 638 P.2d 335 (1981); 2 H. App. 633, 638 P.2d 866 (1982).

  Evidence properly admitted under "other exceptions".  4 H. App. 222, 665 P.2d 165 (1983).