Rule 702.1  Cross-examination of experts. 
(a)  General.  A witness testifying as an expert may be cross-examined to the
same extent as any other witness and, in addition, may be cross-examined as to
(1) the witness' qualifications, (2) the subject to which the witness' expert
testimony relates, and (3) the matter upon which the witness' opinion is based
and the reasons for the witness' opinion.



(b)  Texts and treatises.  If a witness
testifying as an expert testifies in the form of an opinion, the witness may be
cross-examined in regard to the content or tenor of any scientific, technical,
or professional text, treatise, journal, or similar publication only if:



(1)  The witness referred to, considered, or relied
upon such publication in arriving at or forming the witness' opinion, or



(2)  Such publication qualifies for admission into
evidence under rule 803(b)(18). [L 1980, c 164, pt of §1; gen ch 1985]



 



RULE 702.1 COMMENTARY



 



  This rule has no counterpart in Fed. R. Evid.  It is modeled
on Cal. Evid. Code §721.



  Subsection (a):  An expert witness differs from a lay witness
principally in his ability to draw and to testify to inferences that are beyond
the competence of the trier of fact.  In addition, the expert is not restricted
to firsthand knowledge and may base his opinions and inferences on a wide
variety of data and facts perceived by him or made known to him, whether or not
they are admissible in evidence, see Rule 703 infra.



  Such a broad testimonial range suggests the need for an
equally broad cross-examination, and subsection (a) of this rule provides the
appropriate latitude.  Subsection (a) restates existing law, see McCandless v.
Waiahole Water Co., Ltd., 35 H. 314, 320 (1940).



  Subsection (b):  This subsection clarifies the permissible
use of texts and treatises on cross-examination.  Hawaii courts have long
recognized that an expert may be subjected to cross-examination concerning
publications upon which he has relied, see Fraga v. Hoffschlaeger, 26 H. 557,
567 (1922).



  Subsection (b)(2) parallels Rule 803(b)(18) which, agreeably
with Fed. R. Evid. 803(18), exempts from the hearsay exclusion those texts and
treatises that are used on cross-examination.  The criterion of Rule 803(b)(18)
is that the material be "established as a reliable authority,"
regardless of whether or not the witness has relied on it.  Use of such
material on cross-examination was approved in Ruth v. Fenchel, 37 N.J. Super.
295, 117 A.2d 284 (1955), aff'd, 21 N.J. 171, 121 A.2d 373 (1956).  The Ruth
case was cited approvingly by Chief Justice Richardson in Tittle v. Hurlbutt,
53 H. 526, 534, 497 P.2d 1354, 1359 (1972), in connection with the following
statement:  "This court recognizes the wisdom of enlarging the scope of
use of medical texts on cross-examination."  That wisdom is codified in
subsection (b).



 



Case Notes



 



  Section 704-416 overrides this rule.  71 H. 591, 801 P.2d 27.