Rule 702  Testimony by experts.  If
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or otherwise.  In determining the
issue of assistance to the trier of fact, the court may consider the
trustworthiness and validity of the scientific technique or mode of analysis
employed by the proffered expert. [L 1980, c 164, pt of §1; am L 1992, c 191,
§2(7)]



 



RULE 702 COMMENTARY



 



  This rule is identical with Fed. R. Evid. 702 except for the
deletion of a comma after the word "education."



  The rule liberalizes the traditional common law stricture
limiting expert testimony to "some science, profession, business or
occupation...beyond the ken of the average layman," McCormick §13.  Hawaii decisions have tended to adhere to the traditional limitation, e.g., State v. Smith,
59 H. 565, 583 P.2d 347 (1978), where the court allowed expert medical
testimony regarding the effects of LSD on human beings.  Noting that the
"allowance or disallowance of the testimony of an expert witness is
addressed to the sound discretion of the trial court," the court in Smith
established two preconditions for the receipt for expert testimony: 
"first, the subject matter of the inquiry must be of such a character that
only persons of skill, education or experience in it are capable for forming a
correct judgment as to any facts connected therewith and second, the testimony
must be of a nature to aid the jury."  59 H. at 569, 583 P.2d at 350. 
Rule 702 requires only that the testimony be of assistance to the trier of
fact.  The Advisory Committee's Note to Fed. R. Evid. 702 recommends, as the
test for admissibility, "whether the untrained layman would be qualified
to determine intelligently and to the best possible degree the particular issue
without enlightenment from those having a specialized understanding of the subject
involved in the dispute."  So understood, the shift is in degree only.



  The rule also sets a broad standard with respect to the scope
of expert testimony.  The traditional limitation to scientific, professional,
or technical matters is expanded to include "other specialized
knowledge" helpful to the trier of fact.  Consistent with this, the
determination of an expert's qualifications is similarly broad, admitting as an
expert a person qualified "by knowledge, skill, experience, training, or
education."



  Committing the determination of expert qualifications to the
discretion of the court is consistent with State v. Torres, 60 H. 271, 277, 589
P.2d 83, 87 (1978), where the court said:



[T]he determination of whether or not a witness is qualified as
an expert in a particular field is largely within the discretion of the trial
judge and, as such, will not be upset absent a clear abuse of discretion.



See also State v. Murphy, 59 H. 1, 575 P.2d 448 (1978); City
and County of Honolulu v. Bonded Investment Co., Ltd., 54 H. 385, 507 P.2d 1084
(1973).



  Determination by the court that a witness qualifies as an
expert is binding upon the trier of fact only as this relates to admissibility
of the expert's testimony.  The trier of fact may nonetheless consider the
qualifications of the witness in determining the weight to be given to his
testimony.  See Territory v. Adelmeyer, 45 H. 144, 363 P.2d 979 (1961).



 



RULE 702 SUPPLEMENTAL COMMENTARY



 



  The Act 191, Session Laws 1992 amendment added the second
sentence to this rule.  The problem with Fed. R. Evid. 702, as adopted in 1975,
and with original Haw. R. Evid. 702, patterned thereafter, was that neither of
these rules nor their commentaries mentioned Frye v. United States, 293 F.
1013, 1014 (D.C. Cir. 1923), establishing a requirement that a novel scientific
development or technique "have gained general acceptance in the particular
field in which it belongs" as a condition of admissibility in connection
with expert testimony.  The general-acceptance standard of Frye was widely
recognized as a reliability check of emerging scientific developments and
techniques.



  The criterion of Rule 702, that expert testimony "assist
the trier of fact to understand the evidence," necessarily incorporates a
reliability factor and thus countenances a Frye-like inquiry as an ingredient
of the reliability determination.  This is the holding of State v. Montalbo, 73
H. 130, 828 P.2d 1274 (1992), observing that Rule 702's assistance requirement
contemplates expert testimony based upon "a sound factual foundation. .
.an explicable and reliable system of analysis. . .[and having the capacity to]
add to the common understanding of the jury."  The reliability
determination "could include the Frye test," id., but is not so
limited:  "[I]t is possible that a court could also consider the
scientific procedure itself, as well as other evidence of the procedure's
reliability."  Id. Montalbo thus anticipated the present Rule 702
amendment, thereby confirming the drafters' belief that the amendment makes explicit
what was formerly implicit in the assistance criterion.  General acceptance in
the scientific community is highly probative of the reliability of a new
technique but should not be used as an exclusive threshold for admissibility
determinations.



 



Rules of Court



 



  Expert witnesses, see HRPP rule 28(a).



 



Law Journals and Reviews



 



  The Protection of Individual Rights Under Hawai`i's
Constitution.  14 UH L. Rev. 311.



  Expert and Opinion Testimony of Law Enforcement Officers
Regarding Identification of Drug Impaired Drivers.  23 UH L. Rev. 151.



  Scientific Expert Admissibility in Mold Exposure Litigation: 
Establishing Reliability of Methodologies in Light of Hawai‘i's Evidentiary
Standard.  26 UH L. Rev. 99.



 



Case Notes



 



  Witness was qualified to testify as expert.  64 H. 302, 640
P.2d 286.



  Medical examiner's conclusion that death occurred by homicide
was inadmissible.  70 H. 509, 778 P.2d 704.



  Use of expert testimony in child abuse cases, discussed.  71
H. 552, 799 P.2d 48.



  Expert testimony in child abuse case inadmissible as an
opinion as to the child's credibility.  72 H. 527, 825 P.2d 1051.



  Admissibility of novel scientific evidence discussed,
focusing on DNA profiling evidence.  73 H. 130, 828 P.2d 1274.



  Expert testimony necessary to establish reasonable
probability of future pain and suffering.  74 H. 1, 837 P.2d 1273.



  Trial court did not abuse its discretion by excluding
proffered expert testimony on hedonic damages, where the proffered testimony
was based on willingness-to-pay approach.  77 H. 282, 884 P.2d 345.



  Trial court did not abuse its discretion in ruling that
psychiatrist's testimony regarding cause of [decedent's] death would assist the
trier of fact and that it was not untrustworthy or speculative.  78 H. 230, 891
P.2d 1022.



  Trial court properly limited chemical engineer's testimony to
matters within the engineer's background, experience, and training, that is,
within the field of chemical engineering; court did not abuse its discretion in
limiting testimony of one of plaintiff's treating physicians, a general
practitioner, where nothing in the physician's background or experience
suggested physician would be competent to testify regarding the effects of
silicone on the human body.  78 H. 287, 893 P.2d 138.



  Testimony of domestic violence expert was relevant,
specialized knowledge that would assist jury in determining whether defendant
was under the influence of extreme mental disturbance when defendant killed
wife.  80 H. 172, 907 P.2d 758.



  Domestic violence expert properly allowed to testify that
victims of domestic violence often recant allegations of abuse.  83 H. 289, 926
P.2d 194.



  Criminologist was qualified as an expert and provided
relevant, specialized knowledge, unknown to the average juror, which would
assist jury in determining whether ammunition casings found at crime scene had
been fired from rifle defendant had fired.  83 H. 507, 928 P.2d 1.



  As scientific principles and procedures underlying hair and
fiber evidence are well-established and of proven reliability, evidence could
be treated as "technical knowledge"; independent reliability
determination under rule 104 thus unnecessary.  85 H. 462, 946 P.2d 32.



  Two-pronged standard of review adopted for challenges to
expert evidence under this rule; court did not commit plain error in admitting
expert evidence of the Widmark formula for the purpose of ascertaining
defendant's blood alcohol concentration level at the time of defendant's
arrest.  95 H. 94, 19 P.3d 42.



  Trial court did not abuse its discretion in qualifying
witness as an expert in the field of metallurgy and corrosion analysis where,
irrespective of the fact that witness was employed as a stockbroker and had
little recent experience, witness had earned degrees in metallurgy and
engineering and had some work experience involving corrosion issues in water
pipes; it is not necessary for expert witness to have the highest possible
qualifications to enable him or her to testify as an expert.  100 H. 97, 58
P.3d 608.



  Trial court did not abuse discretion in excluding defendant's
expert witness' videotape where, based on five factors, the record demonstrated
that trial court had sufficient reason to question the reliability, and even
relevance, of the accident reconstruction video.  100 H. 356, 60 P.3d 306.



  Where officer testified that officer received field training
in the testing and identification of illegal drugs and drug paraphernalia and
knew through training and experience how a pipe like that recovered from
defendant is used to smoke crystal methamphetamine, prosecution had laid
sufficient foundation establishing officer's knowledge and experience; thus,
trial court did not err in allowing officer to testify that residue contained
in pipe recovered from defendant may have been an amount sufficient to be used.
100 H. 498, 60 P.3d 899.



  Expert's testimony that child's knowledge of sexual terms and
activities were consistent with characteristics of sexually abused child was of
assistance to jury in understanding origin of child's actions and words and not
unduly prejudicial.  8 H. App. 638, 819 P.2d 1122.



  Family court did not abuse its discretion when it decided
that witness was an expert in domestic violence and when it entered decisions
with respect to witness' testimony.  9 H. App. 496, 850 P.2d 716.



  Trial court did not err in precluding witness from expressing
opinion, since record disclosed that witness was never qualified as an
"expert by knowledge, skill, experience, training, or education" in
accordance with this rule.  79 H. 342 (App.), 902 P.2d 977.



  Doctor properly qualified as expert witness where doctor
licensed in two states, practiced for twenty years, and performed over five
hundred breast augmentation operations.  86 H. 93 (App.), 947 P.2d 961.



  Although it may have been error admitting into evidence, as
expert opinion under this rule, officer's testimony concerning §712-1231(b),
the social gambling defense, where defendant was not entitled to this defense
in a prosecution for promoting gambling in the first degree under §712-1221(1)(c),
error was harmless.  92 H. 98 (App.), 987 P.2d 996.



  Trial court properly admitted fingerprint examiner's expert
testimony that expert positively identified the latent fingerprint as belonging
to defendant; evidence presented established that expert's testimony was
reliable and that trial court was well within its discretion in finding that
expert's testimony satisfied the reliability prong of this rule.  109 H. 359
(App.), 126 P.3d 402.



  Without some evidence showing that drug money was not contaminated
by police, State failed to lay a sufficient foundation for the admission of the
dog-sniff evidence under this rule; thus, trial court erred in admitting
dog-sniff evidence and refusing to strike it.  110 H. 129 (App.), 129 P.3d
1157.