Rule 103  Rulings on evidence.  (a) 
Effect of erroneous ruling.  Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is
affected, and:



(1)  Objection.  In case the ruling is one admitting
evidence, a timely objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not apparent from the
context; or



(2)  Offer of proof.  In case the ruling is one
excluding evidence, the substance of the evidence was made known to the court
by offer or was apparent from the context within which questions were asked.



Once the court makes a definitive ruling on the
record admitting or excluding evidence, either at or before trial, a party need
not renew an objection or offer of proof to preserve a claim of error for
appeal.



(b)  Record of offer and ruling.  The court may
add any other or further statement which shows the character of the evidence,
the form in which it was offered, the objection made, and the ruling thereon. 
It may direct the making of an offer in question and answer form.



(c)  Hearing of jury.  In jury cases,
proceedings shall be conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any means, such as
making statements or offers of proof or asking questions in the hearing of the
jury.



Plain error.  Nothing in this rule precludes taking
notice of plain errors affecting substantial rights although they were not
brought to the attention of the court. [L 1980, c 164, pt of §1; am L 2006, c
73, §1]



 



RULE 103 COMMENTARY



 



  This rule is identical with Fed. R. Evid. 103.



  Subsection (a):  This subsection expresses the principle that
a ruling admitting or excluding evidence cannot be assigned as error unless it
affects a substantial right and unless the court is clearly apprised of the
nature of the claimed error and of the corrective action sought.  The objection
or motion to strike, addressed to a ruling admitting evidence, and the offer of
proof, directed to a ruling excluding evidence, provide the appropriate
procedural mechanisms.



  The rule restates existing Hawaii law.  In Trask v. Kam, 44
H. 10, 22, 352 P.2d 320, 326-27 (1959), the court pointed out that error in
admission of testimony is not a basis for reversal absent "substantial
resulting prejudice" to the rights of a party.  See Berkson v. Post, 38 H.
436 (1949); HRCP 61.



  In State v. Okura, 56 H. 455, 458, 541 P.2d 9, 11 (1975), the
court held:  "A motion to strike must be specific; it must be directed
with precision to the matter sought to be stricken and a general motion to
strike all testimony must be overruled if any portion of that testimony is
admissible."  There is a need for a specific offer of proof, Warshaw v. Rockresorts,
57 H. 645, 651, 562 P.2d 428, 433 (1977), unless the nature of the error is
clear, Territory v. Branco, 42 H. 304, 313 (1958).



  Subsection (b):  This subsection generally restates relevant
provisions of HRCP 43(c).  The intent is to provide the appellate court with a
record adequate for final disposition of an evidentiary point.  The provision
is discretionary rather than mandatory, leaving determination of adequacy of
record to the judgment of the trial court.



  Subsection (c):  This provision recognizes that an
exclusionary ruling may be nullified if the evidence sought to be excluded is
brought to the attention of the jury either through an offer of proof or other
means.  Cf. Bruton v. United States, 391 U.S. 123 (1968); HRCP 43(c).



  Subsection (d):  This provision resembles HRCrP 52(b): 
"Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court."  Cf.
Lindeman v. Raynor, 43 H. 299, 303 (1959):  "[E]ven without objection the
court may reject improper evidence."



 



Rules of Court



 



  Harmless error, see HRCP rule 61; HRPP rule 52(a); DCRCP rule
61.



  Plain error, see HRPP rule 52(b).



  Record of excluded evidence, see HRCP rule 43(c); DCRCP rule
43(c).



 



Case Notes



 



  Chemist's testimony regarding net weight of cocaine
improperly admitted where prosecution failed to lay proper foundation that
balance was in proper working order such that weight measured by balance could
be relied upon as substantive fact.  80 H. 382, 910 P.2d 695.



  Where objection to officer's testimony regarding gross weight
of cocaine did not challenge accuracy of certified gram scale, issue of
accuracy of scale waived.  80 H. 382, 910 P.2d 695.



  Where trial court erroneously ruled on whether complainant's
review of complainant's statement would refresh complainant's recollection by
sustaining prosecution's objection on the basis that the complainant had
answered defendant's question, this erroneous ruling inhibited defendant from
confronting the complainant with a potential prior inconsistent statement under
HRE rule 613(b), adversely affected defendant's substantial right to
confrontation, and was reversible error.  118 H. 493, 193 P.3d 409.



  Where plaintiffs' counsel did not object to defendant's
expert's testimony until after expert had been questioned on direct
examination, cross-examination, and redirect examination, and no motion to
strike expert's testimony was made until two days later, after defense had
already rested its case and the court had already determined the instructions
to be submitted to jury, plaintiffs' objection to expert's testimony was
untimely and was thus waived for appeal purposes.  77 H. 446 (App.), 887 P.2d
656.



  Mentioned:  74 H. 1, 837 P.2d 1273.