Rule 705  Disclosure of facts or data
underlying expert opinion.  The expert may testify in terms of opinion or
inference and give the expert's reasons therefor without disclosing the
underlying facts or data if the underlying facts or data have been disclosed in
discovery proceedings.  The expert may in any event be required to disclose the
underlying facts or data on cross-examination. [L 1980, c 164, pt of §1; gen ch
1985]



 



RULE 705 COMMENTARY



 



  The difference between this rule and Fed. R. Evid. 705
is that the latter rule eliminates the need for prior disclosure "unless
the court requires otherwise"; the present rule eliminates the need for
prior disclosure so long as "the underlying facts or data have been
disclosed in discovery proceedings."



  The traditional approach, in cases where the expert lacked
firsthand knowledge of the underlying facts, was to permit the opinion
testimony only after the basis was specified in a hypothetical question derived
strictly from evidence already admitted in the action.  The hypothetical
question has been subject to extensive criticism on the grounds that it is
unnecessarily time-consuming, that it encourages bias, and that it often is
confusing to the jury.  See, e.g., Barretto v. Akau, 51 H. 383, 463 P.2d 917
(1969); McCormick §§14, 17.  The general practice of incorporating into the
hypothetical question the entire body of relevant data adduced by prior
testimony often results in a formulation of formidable length and density.  In
a recent Hawaii case, the question alone took up five pages of the transcript,
Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 108, 412 P.2d 669, 689 (1966). 
This is by no means a record.  In an early California case, the hypothetical
question took up 83 pages of transcript, with an additional 14 pages of
objections.  McCormick §14 n. 95.



  The intent of this rule and of Fed. R. Evid. 705 is to
eliminate the burdensome and outmoded necessity of formulating a hypothetical
question in every instance in which an expert bases his opinion upon other than
firsthand knowledge, and to render prior disclosure of underlying data
discretionary with the court except in those relatively rare instances where
discovery proceedings have not yielded the underlying material.  In practice,
such instances should be limited to situations where experts are obtained while
the trial is in progress, given the continuing duty to disclose discovery
material imposed by HRCrP 16(c)(2) and HRCP 26(e)(1)(B).  In such instances
prior testimonial disclosure, which need not be in hypothetical form, is
required in order to allow the adversary to judge whether the basis lacks
sufficient trustworthiness to qualify under Rule 703.



  For similar provisions, see Cal. Evid. Code §802; Kans. Code
Civ. Proc. §§60-456, 60-457; Uniform Rule of Evidence 705.



 



Case Notes



 



  Rule 703 and this rule do not foreclose expert witness from
revealing, during direct examination, contents of material reasonably relied
upon, though hearsay, to explain basis of opinion, provided expert actually
relied on material as basis of opinion, materials are of type reasonably relied
upon by experts in field in forming opinions on subject, and materials do not
otherwise indicate lack of trustworthiness.  85 H. 336, 944 P.2d 1279.



  Mentioned:  74 H. 141, 838 P.2d 1374.