Rule 613  Prior statements of witnesses. 
(a)  Examining witness concerning prior statement.  In examining a witness
concerning a prior statement made by the witness, whether written or not, the
statement need not be shown nor its contents disclosed to the witness at that
time, but on request the same shall be shown or disclosed to opposing counsel.



(b)  Extrinsic evidence of prior inconsistent
statement of witness.  Extrinsic evidence of a prior inconsistent statement by
a witness is not admissible unless, on direct or cross-examination, (1) the
circumstances of the statement have been brought to the attention of the
witness, and (2) the witness has been asked whether the witness made the
statement.



(c)  Prior consistent statement of witness. 
Evidence of a statement previously made by a witness that is consistent with
the witness' testimony at the trial is admissible to support the witness'
credibility only if it is offered after:



(1)  Evidence of the witness' prior inconsistent
statement has been admitted for the purpose of attacking the witness'
credibility, and the consistent statement was made before the inconsistent
statement; or



(2)  An express or implied charge has been made that
the witness' testimony at the trial is recently fabricated or is influenced by
bias or other improper motive, and the consistent statement was made before the
bias, motive for fabrication, or other improper motive is alleged to have
arisen; or



(3)  The witness' credibility has been attacked at the
trial by imputation of inaccurate memory, and the consistent statement was made
when the event was recent and the witness' memory fresh. [L 1980, c 164, pt of
§1; gen ch 1985]



 



RULE 613 COMMENTARY



 



  This rule differs markedly from Fed. R. Evid. 613, except
that subsection (a) of each rule is identical with the other.



  Subsection (a):  The purpose of this subsection is to abolish
the rule of The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820),
which required that a writing used during cross-examination be first shown to
the witness.  See the Advisory Committee's Note to Fed. R. Evid. 613.  That
rule was previously abolished in Hawaii by statute, Hawaii Rev. Stat. §621-24
(1976) (repealed 1980) (originally enacted as L 1876, c 32, §60), which
provided:  "A witness may be cross-examined as to previous statements made
by him in writing or reduced into writing relative to the subject matter of the
cause or prosecution, without the writing being shown to him...."



  Subsection (b):  This subsection, governing the extrinsic
proof of prior inconsistent statements used to impeach witnesses, should be
read in conjunction with Rules 607 and 802.1(1).



  Since Rule 607 allows the impeachment of a witness by
"any party, including the party calling him," this subsection
envisions establishing the traditional foundation "on direct or
cross-examination."  Requiring that the foundation be established during
the examination-in-chief of the witness represents a departure from Fed. R.
Evid. 613(b), which abolishes the traditional foundation requirement in favor
of simply affording the witness "an opportunity to explain or deny"
the impeaching statement at any time during the trial.  The only advantage of
the federal rule is that "several collusive witnesses can be examined
before disclosure of a joint prior inconsistent statement," see the
Advisory Committee's Note to Fed. R. Evid. 613(b); the disadvantage, when the
impeaching statement is not mentioned during the examination-in-chief of the
witness, is that the witness must be kept available during the trial so that
the "opportunity to explain or deny" can at some point be afforded. 
This disadvantage appears to outweigh the advantage of surprising collusive
witnesses who have made a joint statement, a situation that may not often arise
and in any event may be susceptible of solution under Rule 615 infra.



  Prior Hawaii law, see Hawaii Rev. Stat. §621-23 (1976)
(repealed 1980) (originally enacted as L 1876, c 32, §59) required, as a
precondition to the use of extrinsic evidence of a prior inconsistent statement,
that the circumstances of the statement be brought to the attention of the
witness and that the witness "not distinctly admit that he has made the
statement."  See Kekua v. Kaiser Foundation Hosp., 61 H. 208, 601 P.2d 364
(1979); State v. Napeahi, 57 H. 365, 556 P.2d 569 (1976).  The theory was that,
since the prior statement was hearsay and admissible only for impeachment
purposes, the witness' admission that he made the statement completed the
impeachment and obviated need for extrinsic evidence of the statement.  Rule
802.1(1), however, now provides for substantive use of most prior inconsistent
witness statements, and therefore the witness' admission that he made the
statement no longer obviates the need for the proponent to prove the statement
by extrinsic evidence.  Subsection (b) therefore requires only that (1) the
circumstances of the statement be brought to the attention of the witness, and
(2) the witness be asked whether he made the statement.



  In State v. Pokini, 57 H. 26, 29, 548 P.2d 1402, 1405 (1976),
the court observed:  "The foundation requirement is for the purpose of
rekindling the witness' memory, and substantial compliance is all that is
necessary."  See Territory v. Alcosiba, 36 H. 231, 236 (1942):  "A
proper foundation of the time, place and circumstance having been laid within
the meaning [of the statute]...proof of the prior statements was [properly]
made...."



  State v. Altergott, 57 H. 492, 505-08, 559 P.2d 728, 738
(1977), dealt with the proper scope of cross-examination concerning a prior
inconsistent statement.  Noting that the scope of cross-examination is
generally entrusted to the trial court's discretion, the Altergott court held
that repetitive and detailed questioning about a prior statement that a witness
admitted was false was proper:



Neither a witness nor a party may lawfully escape such
cross-examination by his mere testimony or admission that the witness has made
statements inconsistent with his testimony at the trial and that they were
false.  Cross-examination may not be shut off in this way.  The cross-examiner
has the right to prove by his adversary's witness, if he can, what inconsistent
statements he has made, not only in general, but in every material detail, for,
the more specific and substantial the contradictory statements were, the less
credible is the testimony of the witness.



  In Asato v. Furtado, 52 H. 284, 288, 474 P.2d 288, 292
(1970), the court treated the issue of asserted inconsistency through omission:



Whether an omission to state previously a fact now asserted
constitutes an inconsistency, sufficient to allow the previous statement to be
shown, depends upon the circumstances under which the prior statement was
made.  Not every omission will constitute such an inconsistency.  But where the
prior circumstances were such that the speaker could have been expected to
state the omitted fact, either because he was asked specifically about it, or
because he was purporting to render a full and complete account of the
transaction or occurrence, and the omitted fact was an important and material
one, so that it would have been natural to state it, the omission gives rise to
a justifiable inference that the omitted fact was omitted because it did not
exist.



  Subsection (c):  This subsection, relating to prior
consistent statements, has no Fed. R. Evid. counterpart.  While Fed. R. Evid.
801(d)(1)(B) purports to exclude one class of consistent statements from the
hearsay ban, the federal rules do not address the issue whether other kinds of
consistent statements may be used to rehabilitate witnesses.  More
specifically, the federal rules provide no answer to the issue posed in State
v. Altergott, 57 H. 492, 559 P.2d 728 (1977):  when the cross-examination of a
witness "amounts only to an imputation of inaccurate memory," can a
consistent statement made "when the event was recent and the memory
fresh" be admitted to rehabilitate?  Altergott, relying on McCormick §49
answered this question in the affirmative, and the same result is effected by Rule
613(c)(3).  The balance of subsection (c) comes from Cal. Evid. Code §791.



 



Rules of Court



 



  Depositions, see HRPP rule 15(e); DCRCP rule 32(a).



 



Case Notes



 



  Wife's tape recorded statement to detective properly admitted
under subsection (b) and rule 802.1(1)(C) as substantive evidence of husband's
guilt.  83 H. 289, 926 P.2d 194.



  Where the information in a non-party witness' out-of-court
statement goes beyond the scope of direct or cross-examination, that
information must be redacted before the rest of the statement may be admitted;
taped statements thus admitted in violation of subsection (b).  91 H. 181, 981
P.2d 1127.



  Where witness admitted throughout testimony to having made
prior oral inconsistent statements, witness' transcribed interview admitted in
violation of subsection (b) and rule 802.1(1).  91 H. 181, 981 P.2d 1127.



  Where defendant's credibility was the linchpin of defendant's
defense of duress and choice of evils, the prosecution's failure to comply with
the foundational requirements of this rule deprived the defendant of a fair
opportunity to respond to witness' testimony impeaching defendant's
credibility; thus, there was a strong possibility that the erroneous admission
of witness' testimony contributed to defendant's conviction and was not harmless
error.  101 H. 269, 67 P.3d 768.



  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
subsection (b), adversely affected defendant's substantial right to
confrontation, and was reversible error.  118 H. 493, 193 P.3d 409.



  No merit to State's contention that complainant's videotaped
statements were "prior consistent statements" which could be admitted
into evidence to rehabilitate complainant's credibility under subsection (c),
where complainant's credibility was never attacked by any of the means set
forth in subsection (c).  9 H. App. 414, 844 P.2d 1.



  Claimant's response to a criminal victim compensation form's
directive to "provide a written statement [about] how the crime affected
you" not a prior consistent statement under rule 613(c) when offered to
support the credibility of the claimant's trial testimony that claimant was not
seeking compensation, in the absence of an expression to that effect in the
response itself; nor is the statement admissible under rule 613(c) to buttress
complainant's testimony about complainant's post-incident feelings because
defense counsel did not attack complainant's credibility on this subject, by
one of the three means required by rule 613(c).  79 H. 255 (App.), 900 P.2d
1322.



  Complainant's prior inconsistent statement inadmissible where
record failed to establish that complainant was "subject to
cross-examination concerning the subject matter of the statement" pursuant
to rule 802.1(1).  80 H. 469 (App.), 911 P.2d 104.



  An uncorroborated prior inconsistent statement of a family or
household member offered under this rule and rule 802.1 as substantive evidence
of the facts stated therein may be sufficient, if believed, to establish
physical abuse and the manner in which such abuse was inflicted in a
prosecution for physical abuse of a family or household member under §709-906. 
84 H. 253 (App.), 933 P.2d 90.



  While the requirement that "the declarant is subject to
cross-examination concerning the subject matter of the declarant's
statement" is foundational under rule 802.1(2), it is not a requirement
under subsection (c); thus, while social worker's recounting of the allegation
of sexual assault made by victim during an unrecorded interview may not have
been admissible for its substance under rule 802.1(2), it was admissible to
rehabilitate the victim's credibility under subsection (c).  103 H. 373 (App.),
82 P.3d 818.



  Where record showed that (1) complainant testified on direct
examination about the incidents involving defendant; (2) parts of the testimony
were inconsistent with portions of complainant's first statement; (3)
complainant admitted on cross-examination that complainant wrote the first
statement and signed it; and (4) the prior inconsistent statements were offered
in compliance with the foundational requirements of subsection (b), trial court
erred in failing to admit as substantive evidence at trial pursuant to rule
802.1(1)(B) portions of complainant's first statement that were inconsistent
with complainant's testimony at trial.  116 H. 403 (App.), 173 P.3d 550.



  Mentioned:  74 H. 85, 839 P.2d 10.