Rule 1102  Jury instructions; comment on
evidence prohibited.  The court shall instruct the jury regarding the law
applicable to the facts of the case, but shall not comment upon the evidence. 
It shall also inform the jury that they are the exclusive judges of all
questions of fact and the credibility of witnesses. [L 1980, c 164, pt of §1]



 



RULE 1102 COMMENTARY



 



  This rule, which has no Fed. R. Evid. counterpart,
replaces two prior statutes, Hawaii Rev. Stat. §§635-15, 635-17 (1976)
(repealed 1980) (originally enacted as L 1892, c 56, §1; am L 1932 2d, c 24,
§1; am L 1972, c 89, §2B(e); and L 1932 2d, c 24, §2).  §635-15 authorized the
court to "charge the jury whether there is or is not evidence, indicating
the evidence, if any, tending to establish or rebut any specific fact involved
in the case."  §635-17 authorized the court, "in a criminal case,
[to] make such comment on the evidence and the testimony and credibility of any
witness as in its opinion is necessary for the proper determination of the case." 
The present rule precludes "comment upon the evidence" in all cases. 
This of course is not intended to restrict the court's function set forth in
Article II (judicial notice) and Article III (presumptions).



 



Case Notes



 



  Plain language of this rule establishes that the prohibition
against judicial comment on the evidence is not limited to jury instructions;
thus, rule applied to trial court's interjected comment; however, where trial
court's jury instructions cured the impropriety, court's comment on the
evidence was not prejudicial to defendant.  103 H. 38, 79 P.3d 131.



  Court's reference in jury instructions to witness as
"the victim" was improper comment on the evidence, as whether witness
had been abused was a question to be decided by the jury.  79 H. 413 (App.),
903 P.2d 718.



  Trial court's inclusion of the word "significant"
in the extreme mental or emotional disturbance jury instruction did not
constitute a "comment upon the evidence" prohibited by this rule; by
inserting the word, the trial court was in fact fulfilling its duty under this
rule to "instruct the jury regarding the law applicable to the facts of
the case".  107 H. 452 (App.), 114 P.3d 958.