Rule 704  Opinion on ultimate issue. 
Testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier
of fact. [L 1980, c 164, pt of §1]



 



RULE 704 COMMENTARY



 



  This rule is identical with Fed. R. Evid. 704.  It abolishes
the common-law rule disallowing testimony upon an "ultimate issue" in
the case of trial.



  Rejection of the "ultimate issue" ban is consistent
with recent actions in a majority of the states, see McCormick §12. 
Determination of what is or is not an "ultimate issue" rendered the
rule difficult to apply in practice; undue restrictiveness in its application
often deprived the jury of useful information; the necessity for framing
testimony in such a way that it does not violate the rule often produced
awkward and confusing circumlocutions; and the usual justification for the ban,
that such testimony invades the province of the jury, was of questionable
logical validity in any event.  See McCormick, supra; 7 Wigmore, Evidence
§§1920, 1921.



  Prior to the adoption of this rule Hawaii adhered to the
"ultimate issue" exclusion, see Friedrich v. Department of
Transportation, 60 H. 32, 586 P.2d 1037 (1978); Sherry v. Asing, 56 H. 135,
147, 531 P.2d 648, 657 (1975); Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77,
412 P.2d 669 (1966).



  The abolition of the "ultimate issue" rule does not
leave the court without safeguards.  First, the present rule requires that the
testimony be "otherwise admissible."  Second, under the limitations
of Rules 701 and 702 supra, opinion testimony must be helpful to the trier of
fact.  Third, under Rule 705 infra, the court at its discretion may require
prior disclosure of the underlying facts or data upon which the opinion is
based.  Finally, under Rules 403 and 703 supra, the court has discretion to
exclude the testimony entirely if it is prejudicial, confusing, misleading,
unnecessarily cumulative, or lacking in trustworthiness.  As the Advisory
Committee's Note to Fed. R. Evid. 704 puts it:



These
provisions afford ample assurances against the admission of opinions which
would merely tell the jury what result to reach, somewhat in the manner of the
oath-helpers of an earlier day.  They also stand ready to exclude opinions
phrased in terms of inadequately explored legal criteria.  Thus the question,
"Did T have the capacity to make a will?" would be excluded, while
the question, "Did T have sufficient mental capacity to know the nature
and extent of his property and the natural objects of his bounty and to
formulate a rational scheme of distribution?" would be allowed.



 



Case Notes



 



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



  Although officer's opinion testimony was offering a legal
conclusion as to whether defendant was DUI, any error in connection with
testimony was harmless beyond a reasonable doubt.  91 H. 288, 983 P.2d 189.



  Fact that expert's testimony regarding child sexual abuse
embraced ultimate issue to be decided by trier of fact did not render it
inadmissible.  8 H. App. 638, 819 P.2d 1122.



  Family court abused its discretion in permitting officers'
testimony, which was tantamount to an expression of their opinion that the
complainant had been truthful in accusing defendant, which impermissibly
invaded the province of the jury; this error affected defendant's substantial
rights and defendant's convictions thus vacated.  112 H. 136 (App.), 144 P.3d
584.