Rule 802.1  Hearsay exception; prior
statements by witnesses.  The following statements previously made by
witnesses who testify at the trial or hearing are not excluded by the hearsay
rule:



(1)  Inconsistent statement.  The declarant is subject
to cross-examination concerning the subject matter of the declarant's
statement, the statement is inconsistent with the declarant's testimony, the
statement is offered in compliance with rule 613(b), and the statement was:



(A)  Given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in a deposition; or



(B)  Reduced to writing and signed or otherwise
adopted or approved by the declarant; or



(C)  Recorded in substantially verbatim fashion
by stenographic, mechanical, electrical, or other means contemporaneously with
the making of the statement;



(2)  Consistent statement.  The declarant is subject
to cross-examination concerning the subject matter of the declarant's
statement, the statement is consistent with the declarant's testimony, and the
statement is offered in compliance with rule 613(c);



(3)  Prior identification.  The declarant is subject
to cross-examination concerning the subject matter of the declarant's
statement, and the statement is one of identification of a person made after
perceiving that person; or



(4)  Past recollection recorded.  A memorandum or
record concerning a matter about which the witness once had knowledge but now
has insufficient recollection to enable the witness to testify fully and
accurately, shown to have been made or adopted by the witness when the matter
was fresh in the witness' memory and to reflect that knowledge correctly.  If
admitted, the memorandum or record may be read into evidence but may not itself
be received as an exhibit unless offered by an adverse party. [L 1980, c 164,
pt of §1; gen ch 1985; am L 1992, c 191, §2(8)]



 



RULE 802.1 COMMENTARY



 



  This rule effects a reorganization of certain of the hearsay
provisions found in Article VIII of the federal rules.  The formulation follows
generally the scheme of Cal. Evid. Code in treating all appropriate prior
witness statements in a single rule.  The federal rules, in contrast, treat
certain prior inconsistent statements, prior consistent statements, and prior
identifications as non-hearsay, Fed. R. Evid. 801(d)(1); and place past
recorded recollections among the hearsay exceptions for which the availability
of the declarant is immaterial, Fed. R. Evid. 803(5).



  This rule should be understood in connection with Rule 613,
"Prior statements of witnesses."  Rule 613(b) governs the use of
prior inconsistent statements for impeachment purposes, and Rule 613(c) governs
the use of prior consistent statements for rehabilitation purposes.  The
present rule, in contrast, defines those prior statements by witnesses that may
in addition be considered by the trier of fact to prove the truth of the
matters asserted, that is, as exceptions to the hearsay ban of Rule 802.



  Paragraph (1):  At common law all prior inconsistent
statements of witnesses were classed as hearsay and thus required instructions
limiting consideration to impeachment purposes.  Prior Hawaii law was to the
same effect, see generally Kekua v. Kaiser Foundation Hosp., 61 H. 208, 601
P.2d 364 (1979).  Fed. R. Evid. 801(d)(1)(A) modified the common-law rule to
permit one class of inconsistent statements--those "given under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding, or
in a deposition"--to be used substantively for the truth of the contents. 
The present paragraph retains this exempted federal class in paragraph (1)(A)
and adds two new classes of inconsistent statements that become exceptions to
the hearsay rule, paragraph (1)(B) and (C).  The intent is to include in
paragraph (1) all written or recorded statements that can fairly be attributed
to the witness-declarant.  The language of paragraph (1)(A) is virtually
identical with Fed. R. Evid. 801(d)(1)(A); the language of paragraph (1)(B) and
(C) is borrowed from the federal "Jencks Act," 18 U.S.C. §3500(e)(1)
and (2).



  The "Jencks Act" governs the production or
discovery, in federal criminal trials, of written or recorded statements made
to government agents by government witnesses.  Subdivision (e)(1) statements
are those "signed or otherwise adopted or approved" by a witness. 
Subdivision (e)(2) statements, although not signed or approved by the witness,
are "substantially verbatim" written or recorded accounts of oral
statements made "contemporaneously with the making" of the oral
statements.  The language of subdivisions (e)(1) and (e)(2) is virtually the
same as that of paragraph (1)(B) and (C) of the present rule.  The purpose of
subdivisions (e)(1) and (e)(2) of the Jencks Act, according to the Supreme
Court in Palermo v. United States, 360 U.S. 343, 349-52 (1959), is to define
the "most trustworthy class of statements" of witnesses to be turned
over to the defense for impeachment purposes.  Regarding the requirement that
(e)(2) subdivision statements be "substantially verbatim," the court
said:  "It is clear that Congress was concerned that only those statements
which could properly be called the witness' own words should be made
available" under the Act.  Since the purpose of Congress in writing
subdivision (e) of the Jencks Act was similar to the legislative intent in
adopting paragraph (1)(B) and (C) of the present rule, the Palermo case and
other cases construing the Jencks Act, e.g., Williams v. United States, 338
F.2d 286 (D.C. Cir. 1964), will be helpful in defining the parameters of this rule.



  The trustworthiness of statements defined in paragraph
(1)(A), (B), and (C) is further assured by the requirement that the
witness-declarant be "subject to cross-examination concerning the subject
matter of the statement."  The situation envisioned is one where the
witness has testified about an event and his prior written statement also
describes that event but is inconsistent with his testimony.  Since the witness
can be cross-examined about the event and the statement, the trier of fact is
free to credit his present testimony or his prior statement in determining
where the truth lies.  Because the witness is subject to cross-examination, the
substantive use of his prior inconsistent statements does not infringe the
sixth amendment confrontation rights of accused in criminal cases, see
California v. Green, 399 U.S. 149 (1970).



  Paragraph (2):  Rule 613(c) identifies three classes of prior
consistent statements that are admissible for rehabilitation purposes.  The
present paragraph permits substantive use of these statements.  This is
consistent with prior Hawaii law, see State v. Altergott, 57 H. 492, 559 P.2d
728 (1977).



  Paragraph (3):  The substantive use of prior identifications
is allowed in Fed. R. Evid. 801(d)(1)(C), the Advisory Committee's Note to
which says:  "The basis is the generally unsatisfactory and inconclusive
nature of courtroom identifications as compared with those made at an earlier
time under less suggestive conditions."  Note that this paragraph
addresses only the hearsay issue.  The use of prior identifications in criminal
cases may present constitutional problems as well, see, e.g., Foster v.
California, 394 U.S. 440 (1969); Gilbert v. California, 388 U.S. 263 (1967).



  Paragraph (4):  This paragraph is identical with Fed. R.
Evid. 803(5), and it restates the common-law hearsay exception for recorded
recollection, see State v. Altergott, 57 H. 492, 559 P.2d 728 (1977).



 



Case Notes



 



  Composite sketch is hearsay but is admissible under prior
identification exception if it complies with Rule 802.1(3).  66 H. 254, 659
P.2d 745.



  Prior identification exception allows admission of pretrial
identifications not merely as corroborative evidence but as substantive proof
of identity.  66 H. 254, 659 P.2d 745.



  Prior identification evidence was properly admitted as
substantive proof of identity where identifying witness failed to make in-court
identification.  72 H. 573, 827 P.2d 648.



  Videotaped interview could not be said to have been offered
as a past recollection recorded pursuant to rule 802.1(4) since requisite
showing was not demonstrated prior to introduction of videotape.  79 H. 128,
900 P.2d 135.



  Abuse victim's prior inconsistent statements met requirements
under this section for admissibility as substantive evidence of defendant's
guilt.  81 H. 131, 913 P.2d 57.



  Wife's tape recorded statement to detective properly admitted
under paragraph (1)(C) and rule 613(b) as substantive evidence of husband's
guilt.  83 H. 289, 926 P.2d 194.



  Where witness admitted throughout testimony to having made
prior oral inconsistent statements, witness' transcribed interview admitted in
violation of paragraph (1) and rule 613(b).  91 H. 181, 981 P.2d 1127.



  Admission into evidence of witness' grand jury testimony
under paragraph (4) did not violate defendant's constitutional right to
confrontation where witness' testimony was supported by numerous guarantees of
trustworthiness and defendant was able to cross-examine witness on witness'
subsequent failure to remember alleged incident.  92 H. 61, 987 P.2d 959.



  Admission into evidence of witness' handwritten statement on
the bottom of an identification form under paragraph (4) did not violate
defendant's constitutional right to confrontation where witness' statement was
supported by numerous guarantees of trustworthiness.  92 H. 61, 987 P.2d 959.



  Where prior inconsistent statements were properly admitted
under paragraph (1)(C) and witnesses were cross-examined with respect to their
statements, substantive use of statements did not violate defendant's
constitutional right to confrontation.  92 H. 61, 987 P.2d 959.



  Although recitation by complainant of police report
describing the cell phone text messages would have been inadmissible hearsay
under paragraph (4) and rule 803(b)(8), where complainant could recall
substantial details about the messages prior to reading the report, which
suggested that complainant possessed a memory of the messages that only needed
refreshment via the report, complainant properly testified about the text
messages after viewing the police report pursuant to rule 612.  117 H. 127, 176
P.3d 885.



  Complainant's videotaped statements inadmissible since
foundational requirements for admission under paragraph (2) not satisfied.  9
H. App. 4l4, 844 P.2d 1.



  Stepdaughter was cross-examined regarding prior inconsistent
statements, thus satisfying the foundational requirements for using
stepdaughter's prior consistent statements under rules 613(c) and 802.1(2).  79
H. 342 (App.), 902 P.2d 977.



  No merit to State's argument that complainant's statements
were admissible into evidence as exception to hearsay rule under paragraph (2),
where complainant was never subjected to cross-examination concerning
statements could not be offered into evidence under rule 613(c).  9 H. App. 414,
844 P.2d 1.



  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 this rule.  80 H. 469 (App.), 911 P.2d 104.



  Declarant's signed, written prior statement properly admitted
under paragraph (1) where statement was offered in compliance with rule 613(b),
declarant was subject to cross-examination concerning subject matter of prior
statement, and statement was inconsistent with declarant's testimony.  84 H.
203 (App.), 932 P.2d 340.



  An uncorroborated prior inconsistent statement of a family or
household member offered under rule 613 and this rule 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 paragraph (2), it is not a requirement
under rule 613(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 paragraph (2), it was admissible to
rehabilitate the victim's credibility under rule 613(c).  103 H. 373 (App.), 82
P.3d 818.



  Hearsay testimony of officer properly admitted under
paragraph (3); there is no requirement that a declarant vouch for the accuracy
of a hearsay statement attributed to the declarant in order to qualify as an
exception to hearsay under paragraph (3).  104 H. 285 (App.), 88 P.3d 657.



  Mentioned:  75 H. 195, 857 P.2d 585.



  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 rule 613(b), trial court
erred in failing to admit as substantive evidence at trial pursuant to paragraph
(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.



 



Prior law.



  Court instruction not erroneous for trials held prior to
January 1, 1981.  3 H. App. 107, 643 P.2d 807.