§1227 - , which provides the following commentary: "The plaintiff in a wrongful death action.

Rule 803 Hearsay exceptions; availability
of declarant immaterial. The following are not excluded by the hearsay
rule, even though the declarant is available as a witness:

(a) Admissions.

(1) Admission by party-opponent. A statement that is
offered against a party and is (A) the party's own statement, in either the
party's individual or a representative capacity, or (B) a statement of which
the party has manifested the party's adoption or belief in its truth.

(2) Vicarious admissions. A statement that is
offered against a party and was uttered by (A) a person authorized by the party
to make such a statement, (B) the party's agent or servant concerning a matter
within the scope of the agent's or servant's agency or employment, made during
the existence of the relationship, or (C) a co-conspirator of the party during
the course and in furtherance of the conspiracy.

(3) Admission by deceased in wrongful death action.
A statement by the deceased, offered against the plaintiff in an action for the
wrongful death of that deceased.

(4) Admission by predecessor in interest. When a
right, title, or interest in any property or claim asserted by a party to a
civil action requires a determination that a right, title, or interest exists
or existed in the declarant, evidence of a statement made by the declarant
during the time the party now claims the declarant was the holder of the right,
title, or interest is as admissible against the party as it would be if offered
against the declarant in an action involving that right, title, or interest.

(5) Admission by predecessor in litigation. When the
liability, obligation, or duty of a party to a civil action is based in whole
or in part upon the liability, obligation, or duty of the declarant, or when
the claim or right asserted by a party to a civil action is barred or
diminished by a breach of duty by the declarant, evidence of a statement made
by the declarant is as admissible against the party as it would be if offered
against the declarant in an action involving that liability, obligation, duty,
or breach of duty.

(b) Other exceptions.

(1) Present sense impression. A statement describing
or explaining an event or condition made while the declarant was perceiving the
event or condition or immediately thereafter.

(2) Excited utterance. A statement relating to a
startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical
condition. A statement of the declarant's then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including a statement
of memory or belief to prove the fact remembered or believed unless it relates
to the execution, revocation, identification, or terms of declarant's will.

(4) Statements for purposes of medical diagnosis or
treatment. Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.

(5) Reserved.

(6) Records of regularly conducted activity. A memorandum,
report, record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made in the course of a regularly conducted activity,
at or near the time of the acts, events, conditions, opinions, or diagnoses, as
shown by the testimony of the custodian or other qualified witness, or by certification
that complies with rule 902(11) or a statute permitting certification, unless
the sources of information or other circumstances indicate lack of
trustworthiness.

(7) Absence of entry in records kept in accordance
with the provisions of paragraph (6). Evidence that a matter is not included
in the memoranda, reports, records, or data compilations, in any form, kept in
accordance with the provisions of paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a kind of which a memorandum,
report, record, or data compilation was regularly made and preserved, unless
the sources of information or other circumstances indicate lack of
trustworthiness.

(8) Public records and reports. Records, reports,
statements, or data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which matters there was a duty
to report, excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel, or (C) in civil proceedings and
against the government in criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of information or
other circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. Records or data
compilations, in any form, of births, fetal deaths, deaths, or marriages, if
the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. To prove the
absence of a record, report, statement, or data compilation, in any form, or
the nonoccurrence or nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was regularly made and preserved
by a public office or agency, evidence in the form of a certification in
accordance with rule 902, or testimony, that diligent search failed to disclose
the record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. Statements
of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by
blood or marriage, or other similar facts of personal or family history,
contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates.
Statements of fact contained in a certificate that the maker performed a
marriage or other ceremony or administered a sacrament, made by a clergyman,
public official, or other person authorized by the rules or practices of a
religious organization or by law to perform the act certified, and purporting
to have been issued at the time of the act or within a reasonable time
thereafter.

(13) Family records. Statements of fact concerning
personal or family history contained in family Bibles, genealogies, charts,
engravings on rings, inscriptions on family portraits, engravings on urns,
crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in
property. The record of a document purporting to establish or affect an
interest in property, as proof of the content of the original recorded document
and its execution and delivery by each person by whom it purports to have been
executed, if the record is a record of a public office and an applicable
statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in
property. A statement contained in a document purporting to establish or
affect an interest in property if the matter stated was relevant to the purpose
of the document, unless the circumstances indicate lack of trustworthiness.

(16) Statements in ancient documents. Statements in a
document in existence twenty years or more the authenticity of which is
established.

(17) Market reports, commercial publications. Market
quotations, tabulations, lists, directories, or other published compilations,
generally used and relied upon by the public or by persons in particular
occupations.

(18) Learned treatises. To the extent called to the
attention of an expert witness upon cross-examination or relied upon by the
witness in direct examination, statements contained in published treatises,
periodicals, or pamphlets on a subject of history, medicine, or other science
or art, established as a reliable authority by the testimony or admission of
the witness or by other expert testimony or by judicial notice. If admitted,
the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family
history. Reputation among members of the person's family by blood, adoption,
or marriage, or among the person's associates, or in the community, concerning
a person's birth, adoption, marriage, divorce, death, legitimacy, relationship
by blood, adoption, or marriage, ancestry, or other similar fact of the
person's personal or family history.

(20) Reputation concerning boundaries or general history.
Reputation in a community, arising before the controversy, as to boundaries of
or customs affecting lands in the community, and reputation as to events of
general history important to the community or state or nation in which located.

(21) Reputation as to character. In proving character
or a trait of character under rules 404 and 405, reputation of a person's
character among the person's associates or in the community.

(22) Judgment of previous conviction. Evidence of a
final judgment, entered after a trial or upon a plea of guilty (but not upon a
plea of nolo contendere), adjudging a person guilty of a crime punishable by
death or imprisonment in excess of one year, to prove any fact essential to
sustain the judgment, but not including, when offered by the government in a
criminal prosecution for purposes other than impeachment, judgments against
persons other than the accused. The pendency of an appeal may be shown but
does not affect admissibility.

(23) Judgment as to personal, family or general
history, or boundaries. Judgments as proof of matters of personal, family or
general history, or boundaries, essential to the judgment, if the same would be
provable by evidence of reputation.

(24) Other exceptions. A statement not specifically
covered by any of the exceptions in this paragraph (b) but having equivalent
circumstantial guarantees of trustworthiness, if the court determines that (A)
the statement is more probative on the point for which it is offered than any
other evidence which the proponent can procure through reasonable efforts, and
(B) the general purposes of these rules and the interests of justice will best
be served by admission of the statement into evidence. However, a statement
may not be admitted under this exception unless the proponent of it makes known
to the adverse party sufficiently in advance of the trial or hearing to provide
the adverse party with a fair opportunity to prepare to meet it, the
proponent's intention to offer the statement and the particulars of it, including
the name and address of the declarant. [L 1980, c 164, pt of §1; gen ch 1985;
am L 2002, c 134, §4]

Revision Note

Only the part of the paragraph amended is compiled in this
Supplement.

RULE 803 COMMENTARY

This rule differs from Fed. R. Evid. 803 in several
respects. It eliminates federal rule 803(5), recorded recollection, which is
treated in Rule 802.1 supra, and incorporates the general provisions of federal
rule 801(d)(2), party admissions, which are treated here, in paragraph (a), as exceptions
to the hearsay rule rather than as non-hearsay. In addition, three of the
present admission rules, 803(a)(3), (4), and (5), contain hearsay exceptions
not found in the federal rules: statements by decedents in wrongful death
actions, admissions by predecessors in interest, and admissions by predecessors
in litigation. Also, the federal rules formulation of the exception for
regularly conducted activity, 803(6), is expanded here to include all forms of
regularly conducted activity whose records are regularly and reliably prepared
and maintained, rather than just "business activity." Finally,
non-substantive changes are effected in Rule 803(b)(21) and (24).

As the title of Rule 803 suggests, the various exceptions to
the hearsay ban collected in this rule do not depend upon the present status or
whereabouts of the declarant. The rationales for paragraphs (a) and (b) of
this rule differ markedly, but the current availability of the declarant as a
witness is in all instances immaterial to the question of admissibility. This
factor is the principal distinguishing characteristic between this rule and
Rule 804 infra.

Paragraph (a): This paragraph includes those statements
categorized as "admission[s] by party-opponent[s]" in Fed. R. Evid.
801(d)(2) and several additional categories, paragraph (a)(3), (4) and (5),
based upon the Cal. Evid. Code. The subject matter of admissions was recently
addressed by the Hawaii Supreme Court in Kekua v. Kaiser Foundation Hosp., 61
H. 208, 217, 601 P.2d 364, 371 (1979): "The extrajudicial statements of a
party-opponent, when offered against the same, are universally deemed
admissible at trial as substantive evidence of the fact or facts stated."
As the Kekua court recognized, there are two conditions of admissibility under
this paragraph: (1) that the statement was made by a party to the litigation,
and (2) that the statement now be offered against that party. The rationale,
according to the Advisory Committee's Note to Fed. R. Evid. 801(d)(2), is that
admissions are "the result of the adversary system.... No guarantee of
trustworthiness is required in the case of an admission." In other words,
it has always seemed essentially fair to allow the use against a party of his
previous statements concerning the subject matter of the current litigation.
For this reason, the Advisory Committee's Note commends "generous
treatment of this avenue to admissibility."

The adversary justification for admissions serves to explain
the absence of any requirement that these statements be against interest when
made. The only requirement is that they be relevant, see Rule 401. The Hawaii
Supreme Court pointed out in Kekua v. Kaiser Foundation Hosp., supra, 61 H. at
216 n. 3, 601 P.2d at 370 n. 3:

The expression "admissions against interest" is a
misnomer. Appellants have apparently confused "party
admissions"...with "statements against interest." [See Rule
804(b)(3) infra.]...[P]arty admissions, unlike statements against interest,
need not have been against the declarant's interest when made, need not be
based on the declarant's personal knowledge, may be in the form of an opinion,
and are admissible at trial regardless of whether the declarant is unavailable.

Paragraph (a)(1): The "admission by
party-opponent" defined in this paragraph is the classic form of an
admission, see Kekua v. Kaiser Foundation Hosp., supra; Christensen v. State
Farm Mutual Auto Ins. Co., 52 H. 80, 83-84, 470 P.2d 521, 524 (1970).
"[A]ny statement made by a party to an action, and which reasonably tends
to prove or disprove a material fact in the case, is competent to be put in
evidence against him in the trial of that action," Bonacon v. Wax, 37 H.
57, 61 (1945). Statements or confessions made by and offered against accused
in criminal cases are actually admissions under this rule, see Territory v.
Palakiko, 38 H. 490 (1950).

Regarding adoptive admissions under subparagraph (a)(1)(B),
the issue for determination by the court under Rule 104 is whether the party
"manifested his adoption or belief" in the truth of a statement made
in his presence. Express assent or agreement presents no problem. When,
however, will silence constitute adoption of the statement? The Advisory
Committee's Note to Fed. R. Evid. 801(d)(2)(B) supplies the answer: "When
silence is relied upon, the theory is that the person would, under the
circumstances, protest the statement made in his presence, if untrue. The
decision in each case calls for an evaluation in terms of probable human
behavior." In other words, statements made in the presence of a person
who is now a party are not invariably "adopted" by that person; the
issue is whether, in context, the statement was of such a nature that the
person would reasonably have been expected to deny the statement if it were untrue.
In criminal cases, "adoptive" admissions by defendants in custody are
generally ruled out by Doyle v. Ohio, 426 U.S. 610 (1976); but see State v.
Alo, 57 H. 418, 558 P.2d 1012 (1976).

Paragraph (a)(2): The treatment in this paragraph of
vicarious admissions by agents, servants, and co-conspirators follows that of
Fed. R. Evid. 801(d)(2)(C), (D), and (E). Regarding servants, the common-law
criterion was whether the making of the statement was within the scope of the
agent's employment. However, "since few principals employ agents for the
purpose of making damaging statements, the usual result was exclusion of the
statement." Fed. R. Evid. 801(d)(2)(D), Advisory Committee's Note. The
present rule admits the agent's or servant's statement so long as it concerns
"a matter within the scope of his agency or employment."

Hawaii courts have routinely admitted the statements of
co-conspirators as admissions against all the members of the conspiracy.
"[E]vidence of acts and declarations done or made in furtherance of the
common purpose during the existence of the conspiracy, though subsequent to the
offense charged, is admissible against all of the conspirators," State v.
Yoshino, 45 H. 206, 214, 364 P.2d 638, 644 (1961).

Paragraph (a)(3): This paragraph, admitting statements by
decedents in wrongful death actions, is based upon Cal. Evid. Code §1227, which
provides the following commentary: "The plaintiff in a wrongful death
action...stands in reality so completely on the right of the deceased...person
that such person's admissions should be admitted against the plaintiff, even
though (as a technical matter) the plaintiff is asserting an independent
right."

Paragraph (a)(4): This paragraph, governing admissions by
predecessors in interest, has a solid foundation in Hawaii case law.
"Privity between a declarant and a party renders a declaration of the
former admissible against the latter," Tanaka v. Mitsunaga, 43 H. 119, 126
(1959). This rule is similar to Cal. Evid. Code §1225.

Paragraph (a)(5): This paragraph is identical with Cal.
Evid. Code §1224, which provides the following commentary:

Much of the evidence within this section is also covered by
[the rule] which makes declarations against interest admissible. However, to
be admissible [as a declaration against interest] the statement must have been
against the declarant's interest when made; this requirement is not stated in
[this rule]....

[This rule] refers specifically to "breach of duty"
in order to admit statements of a declarant whose breach of duty is in issue
without regard to whether that breach gives rise to a liability of the party
against whom the statements are offered or merely defeats a right being
asserted by that party.

Paragraph (b): The exceptions to the hearsay ban collected
in this paragraph track the exceptions found in Fed. R. Evid. 803. Both the
hearsay rule and the various exceptions involve the issue of trustworthiness of
extrajudicial statements. Hearsay, even though relevant, is excluded because
its trustworthiness is suspect. Each of the exceptions in this paragraph,
however, is thought to be characterized by a degree of trustworthiness and
reliability sufficient to warrant admitting the hearsay regardless of the
current availability of the declarant. See the Advisory Committee's Note to
Fed. R. Evid. 803: "The present rule proceeds upon the theory that under
appropriate circumstances a hearsay statement may possess circumstantial
guarantees of trustworthiness sufficient to justify nonproduction of the declarant
in person at the trial even though he may be available." Compare the
"unavailability" requirement of Rule 804 infra.

Paragraph (b)(1) and (2): These rules governing the receipt
of present sense impressions and excited utterances are identical with Fed. R.
Evid. 803(1) and (2). Hawaii courts have admitted excited utterances under the
broad aegis of res gestae, see Territory v. Kinoshita, 38 H. 335 (1949).
"A declaration to be part of the res gestae need not be strictly
contemporaneous with the transaction or event to which it relates; it is enough
that it was a spontaneous utterance engendered by the excitement of the main
event made immediately after and under the influence of the occurrence and so
connected with it as to characterize or explain it." Anduha v. County of Maui, 30 H. 44, 51 (1920). Note, however, that exception (2) requires only that
the statement relate to the event, while exception (1) is limited to statements
that describe or explain the event.

Both exceptions rely on spontaneity to assure the
trustworthiness of the statements. The requirement of contemporaneousness for
present sense impressions further assures reliability by precluding errors
caused by memory defects. Excited utterances, which need not be strictly
contemporaneous, are considered trustworthy because made "under the stress
of excitement." As a final safeguard, a statement admitted under either
exception will usually have been made to someone present at the event, who
would therefore have been in good position to challenge inaccuracies in
describing or recounting the event. See McCormick §298.

Paragraph (b)(3): This rule is identical with Fed. R. Evid.
803(3) which, according to the Advisory Committee's Note, is a special
application of the present sense impressions exception.

Hawaii courts have recognized this hearsay exception. In
Teixeira v. Teixeira, 37 H. 64, 71 (1945), the court observed:
"Intentions are purely mental. The condition of a person's mind...may
only be judged by his former acts and conduct.... Of necessity to ascertain
his state of mind or his condition of mind at and prior to his performance of
the jural act under investigation [an alleged deed of gift], resort may be had
to the usual and ordinary human manifestations of intention and of condition of
mind, viz., his conduct and statements and declarations made by him in relation
to the subject matter involved." The Teixeira court cited approvingly
Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), which admitted a direct
statement of intent as evidence of the probable future performance of the act
intended. The Hillmon rule is also incorporated in exception (3).

If a statement reflects state of mind only circumstantially,
e.g., Territory v. Duvauchelle, 28 H. 350 (1925), where a murder victim's
statement that his fishpond had been robbed was admitted as evidence of his
probable intent to guard the pond, it may be admitted as non-hearsay. See the
comment to Rule 801 supra. However, as one authority points out:
"[T]here does not seem to be a single practical consequence that may or
may not ensue according to whether the evidence is received as original
[non-hearsay] or received by way of exception to the hearsay rule," Cross,
Evidence 475 (3d ed. 1967).

Paragraph (b)(4): This exception, which is identical with
Fed. R. Evid. 803(4), liberalizes the common-law rule that admitted only
statements made for the purpose of medical treatment, see, e.g., Cozine v.
Hawaiian Catamaran, 49 H. 77, 412 P.2d 669 (1966). Statements made for purposes
of treatment are admitted "in view of the patient's strong motivation to
be truthful." Fed. R. Evid. 803(4), Advisory Committee's Note.
Statements made for diagnostic purposes only, while not similarly motivated,
would be recited in any event by a testifying physician under Rule 703. Were
these statements not substantively admissible, a limiting instruction would be
necessary, and "[t]he distinction thus called for [is] one most unlikely
to be made by juries." Advisory Committee's Note, supra. This difficulty
is avoided by providing for substantive admissibility of all "reasonably
pertinent" statements made for purposes of treatment or diagnosis.

On the question whether a statement is "reasonably
pertinent to diagnosis or treatment," the Advisory Committee's Note to
Fed. R. Evid. 803(4) suggests: "Thus a patient's statement that he was
struck by an automobile would qualify but not his statement that the car was
driven through a red light."

Paragraph (b)(6) and (7): These exceptions are based upon
Fed. R. Evid. 803(6) and (7) and a prior statute, Hawaii Rev. Stat. §622-5
(1976) (repealed 1980) (originally enacted as L 1941, c 218, §§1, 2, 3; am L
1972, c 104, §2(e)). However, both the federal rules and the prior Hawaii statute limited admissibility to records of regularly conducted business activities,
while the present rule has no such limitation. On the other hand, both the
federal rule and the prior statute defined "business" very broadly as
including businesses, professions, occupations, and even nonprofit
institutions. See, e.g., State v. Torres, 60 H. 271, 589 P.2d 83 (1978)
(hospital business). The modification is therefore not a substantial one. In
any event, the hallmark of reliability in this area is not the nature of the
business or activity but rather its "regularity and continuity which
produce habits of precision, [the] actual experience of business in relying
upon [the records], [and the] duty to make an accurate record as part of a
continuing job or occupation." Fed. R. Evid. 803(6), Advisory Committee's
Note. A further safeguard is that preliminary determination of the
trustworthiness of such records is discretionary with the court.

Hawaii judicial decisions reflect concern with these indicia
of trustworthiness rather than with the nature of the "business." In
holding inadmissible a series of accident reports based on accounts by
bystander witnesses not employed by the institution maintaining the records,
the court observed that "an entry based on facts observed and reported by
one without a business duty to observe and report such facts is [not]
admissible as proof of the facts," Warshaw v. Rockresorts, 57 H. 645, 650,
562 P.2d 428, 433 (1977). In ruling on the admissibility of a police report of
a burglary complaint, the court held that it could be offered as a business
record but only as proof that such a complaint had been made, not as proof of
the correctness of facts reported in the complaint. Territory v. Makaena, 39
H. 270 (1952). These decisions are unaffected by the new rule. However,
whenever a record is characterized by indicia of trustworthiness, the courts
have consistently admitted it as substantive evidence. In State v. Ing, 53 H.
466, 497 P.2d 575 (1972), the court held that records of the routine and regular
testing of the speedometers on police vehicles were admissible not only to
prove that such tests had been made but also as evidence of the accuracy of the
speedometers. So long as all informants act pursuant to a business duty, the
fact that a record may contain multiple hearsay does not affect its
admissibility under this rule, compare Warshaw v. Rockresorts, supra.

Although the absence of an entry in a record is not, in and
of itself, a "statement...offered in evidence to prove the truth of the
matter asserted," and is therefore technically not hearsay, it does
present the issue of the correlation between non-entry in the record and
nonoccurrence of the event. Most authorities have therefore treated the
non-entry as a direct hearsay issue, and exception (7) resolves the problem.

Paragraph (b)(8), (9), and (10): The Advisory Committee's
Note to Fed. R. Evid. 803(8) states: "Justification for the exception is
the assumption that a public official will perform his duty properly and the
unlikelihood that he will remember details independently of the record."
This justification is equally applicable to exceptions (8), (9), and (10),
which are identical with Fed. R. Evid. 803(8), (9), and (10). In most
instances, reliability is further assured by the same factors that justify
admission under exceptions (6) and (7).

Traditional common law doctrine has consistently recognized
the admissibility of public records under a hearsay exception, predicated on
the same general indicia of reliability and trustworthiness as for business
records, see, e.g., Rex v. Lenehan, 3 H. 714 (1876), holding that the official
record of the issuance of a liquor license was admissible as proof that the
license was issued. More recently the courts have tended to admit public
records under the broad aegis of the business records statute, see, e.g., State
v. Ing, 53 H. 466, 497 P.2d 575 (1972), holding police department speedometer
test records admissible under a business records exception.

Paragraph (b)(8)(C), dealing with evaluative reports,
clarifies a point about which the common-law cases were divided, see the
Advisory Committee's Note to Fed. R. Evid. 803(8)(C). The Note suggests:
"Factors which may be of assistance in passing upon the admissibility of
evaluative reports include: (1) the timeliness of the investigation.... (2)
the special skill or experience of the official.... (3) whether a hearing was
held and the level at which conducted.... (4) possible motivation problems
suggested by Palmer v. Hoffman, 318 U.S. 109 (1943). Others no doubt could be
added."

Exception (9) is mostly a specialized application of
exception (8). The informant, if not a public official himself, is usually a
physician or clergyman who reports the statistic pursuant to a legal duty. It
is consistent with Hawaii Rev. Stat. §338-12 (1976), providing that vital
statistics records "shall be prima facie evidence of the facts therein
stated." And see Republic v. Waipa, 10 H. 442 (1896), holding that a
marriage certificate was admissible to prove the fact of the marriage of the
defendant, even in the absence of proof of the actual marriage ceremony.

Exception (10) is in all respects analogous to exception (7).

Paragraph (b)(11) and (12): These exceptions are quite
similar to exception (6), relating to records of regularly conducted
activities, except that exception (11) "contains no requirement that the
informant be in the course of the activity." Fed. R. Evid. 803(11),
Advisory Committee's Note.

In Uuku v. Kaio, 21 H. 710, 723 (1913), the court noted:
"[T]he facts of baptism and membership in a religious body are often
recorded, with accompanying explanatory notes relating to parentage and date of
birth, on books maintained for the purpose by the religious body. It is common
practice for those preparing the proofs on issues of Hawaiian pedigree to
inquire at the churches, or other headquarters of the religious organizations,
for such records and to examine them when found for the desired
information."

Paragraph (b)(13): This exception is identical with Fed. R.
Evid. 803(13), and is consistent with previous Hawaii case law, see Uuku v.
Kaio, 21 H. 710, 715 (1913) (leaves from a family Bible).

Paragraph (b)(14): Identical with Fed. R. Evid. 803(14),
this rule accords with Hawaii Rev. Stat. §502-82 (1976), which similarly
provides that "[t]he record of an instrument...may also be read in
evidence, with like force and effect as the original instrument." See
also Hong Quon v. Chea Sam, 14 H. 276 (1902), which held that the record of a
title deed, and the certified copy of that record, were admissible in evidence
even though they were in conflict with the express terms of the original
certificate of title. The Hawaii court has also affirmed the liberal rule that
the fact of recordation constitutes independent prima facie evidence of
delivery of title. Boteilho v. Boteilho, 58 H. 40, 564 P.2d 144 (1977).

Paragraph (b)(15): This exception is identical with Fed. R.
Evid. 803(15). The general circumstances under which documents of conveyance
and similar instruments are usually executed provide a strong circumstantial
guarantee of trustworthiness, justifying the admissibility under a hearsay
exception of facts contained in them. In Apo v. Dillingham Investment Corp.,
57 H. 64, 549 P.2d 740 (1976), the court expressly cited Fed. R. Evid. 803(15)
as persuasive authority for substantive admission of pedigree statements in a
deed as proof of family relationship.

Paragraph (b)(16): This exception, which is identical with
Fed. R. Evid. 803(16), accords generally with the common law rule admitting
ancient documents as substantive evidence. However, it liberalizes the
conventional requirement that the document be at least 30 years old. As the
exception suggests, ancient documents offer the dual issue of admissibility of
content under a hearsay exception and authentication of the document as a
whole. The hearsay exception, therefore, is made conditional upon the
foundation requirement of authentication. See Rule 901(b)(8) infra. The Advisory
Committee's Note to Fed. R. Evid. 803(16) suggests: "As pointed out in
McCormick §298, danger of mistake is minimized by authentication requirements,
and age affords assurance that the writing antedates the present
controversy."

Paragraph (b)(17): This exception is identical with Fed. R.
Evid. 803(17). See 6 Wigmore, Evidence §1704 (Chadbourn rev. 1976); Virginia
v. West Virginia, 238 U.S. 202 (1915). The rationale for the exception is the
high probability of trustworthiness of such compilations, the reliance accorded
them, and the motivation of the compiler to achieve a high level of accuracy.

Paragraph (b)(18): This exception, which is identical with
Fed. R. Evid. 803(18), should be read in connection with Rule 702.1(b),
relating to the cross-examination of expert witnesses.

Despite the circumstantial guarantee of the trustworthiness
of such evidence provided by the high standards of accuracy customarily
required in the learned professions, an unqualified rule of admissibility poses
certain dangers. In the absence of expert interpretation, explanation, or
qualification, a lay jury might misinterpret, misapply, or give excessive
weight to evidence of this nature. Consistent with the position adopted in the
federal rules, this exception safeguards against these hazards by limiting
substantive use of treatises to situations in which an expert is on the stand.

The Hawaii courts have closely adhered to the strict common
law limitation on the use of treatises and technical materials, holding them inadmissible
in the absence of an expert witness subject to cross-examination, Sherry v.
Asing, 56 H. 135, 157-58, 531 P.2d 648, 663 (1975), and admitting them only for
the purpose of testing the qualifications of expert witnesses, Tittle v.
Hurlbutt, 53 H. 526, 497 P.2d 1354 (1972), or for impeaching them on
cross-examination, Fraga v. Hoffschlaeger, 26 H. 557 (1922). This rule thus
modifies prior case law, see Fraga v. Hoffschlaeger, supra, which precluded any
substantive use of learned texts or treatises. The previously required
limiting instruction called for a distinction of great subtlety and
questionable merit. It is difficult to conceive how a statement from an
authoritative treatise can be used either to support or to impeach the
credibility of an expert witness absent the corollary assumption that it is
substantively accurate. The present exception eliminates that logical
inconsistency while avoiding the hazards implicit in uncontrolled admissibility
of such evidence.

The issue of the reliability of the authority or treatise is
for the court under Rule 104.

Paragraph (b)(19): This exception is identical with Fed. R.
Evid. 803(19). Admissibility of reputation evidence of pedigree and family
history is one of the most venerable of the common law hearsay exceptions. In
Whittit v. Miller, 1 H. 82 (139) (1852), the court recognized that the fact of
a marriage could be proved by reputation evidence. In Helekahi v. Laa, 32 H.
1, 6-7 (1931), the court said: "It is definitely settled that a member of
a family may testify to its ramifications based on family history and tradition
handed down to him by his ancestors or by his collaterals."

Paragraph (b)(20): This exception is identical with Fed. R.
Evid. 803(20). The admission of reputation evidence of land boundaries and
events of general history as an exception to the hearsay rule has a firm
foundation in traditional common law.

In Hawaii this form of reputation evidence, especially as it
applies to property disputes, has been accorded judicial approbation and
admitted as "kamaaina testimony." Based upon judicial recognition
that Hawaii's land laws are unique in that they are based on ancient tradition,
custom, practice, and usage, Keelikolani v. Robinson, 2 H. 514 (1862), the
courts have admitted and given great weight to "kamaaina testimony."
The term itself was apparently first judicially used and expressly defined in
In re Boundaries of Pulehunui, 4 H. 239, 245 (1879):

We use the word "kamaaina" above without translation
in our investigation of ancient boundaries, water rights, etc. A good
definition of it would be to say that it indicates...a person familiar from
childhood with any locality.

More recently, the Hawaii Supreme Court held: "In this
jurisdiction it has long been the rule...to allow reputation evidence by
kamaaina witnesses in land disputes...." Application of Ashford, 50 H.
314, 440 P.2d 76 (1968).

The present exception incorporates the Hawaii common law
principle of kamaaina testimony as it applies to land disputes and extends it
further to "events of general history." Such an extension of the
rule is justified by the same circumstantial assurances of trustworthiness as
those applicable to testimony relevant to land issues.

Paragraph (b)(21): This exception adds to Fed. R. Evid.
803(21) the phrase, "In proving character or a trait of character under
Rules 404 and 405," to make it clear that this rule does not confer
independent grounds for admissibility of reputation/character evidence but
rather simply overcomes the hearsay objection when relevance is established
under Rule 404.

Paragraph (b)(22): This exception is identical with Fed. R.
Evid. 803(22), the Advisory Committee's Note to which says: "[The common
law decisions] manifest an increasing reluctance to reject in toto the validity
of the law's factfinding processes outside the confines of res judicata and
collateral estoppel. While this may leave a jury with the evidence of
conviction but without means to evaluate it...it seems safe to assume that the
jury will give it substantial effect unless defendant offers a satisfactory
explanation, a possibility not foreclosed by the provision."

Prior Hawaii law was consistent with this rule, see Asato v.
Furtado, 52 H. 284, 474 P.2d 288 (1970); Territory v. Howell, 25 H. 320, 323
(1920). This rule does not confer admissibility upon judgments of conviction.
Relevance and Rule 403 considerations must always be taken into account.

Paragraph (b)(23): This exception is identical with Fed. R.
Evid. 803(23), the Advisory Committee's Note to which points out: "[T]he
process of inquiry, sifting, and scrutiny which is relied upon to render
reputation reliable is present in perhaps greater measure in the process of
litigation."

To the extent that In re Estate of Cunha, 49 H. 273, 414 P.2d
925 (1966), is to the contrary, see Advisory Committee's Note to Fed. R. Evid.
803(23), its result is superseded by this rule.

Paragraph (b)(24): This exception is similar to Fed. R.
Evid. 803(24). Consistent with the overall purpose expressed in Rule 102 of
"promotion of growth and development of the law of evidence to the end
that the truth may be ascertained and proceedings justly determined," this
exception provides for a measure of controlled flexibility in the judicial
determination of what evidence should be admissible under this class of hearsay
exceptions. The exception is not designed to open the door widely for
otherwise inadmissible evidence; and to safeguard against abuse the
requirements of trustworthiness and a high degree of relevance circumscribe the
exercise of judicial discretion. Finally, the requirement for prior
notification to the adverse party provides a protection against both excessive
liberalization and unfair surprise.

RULE 803 SUPPLEMENTAL COMMENTARY

The Act 134, Session Laws 2002 amendment expands and
simplifies the means of establishing foundation requirements for the hearsay
exception for records of regularly conducted activity, rule 803(b)(6).
Previously, the rule required that the foundation elements be established
testimonially by the "custodian [of the records] or other qualified
witness." This is a cumbersome process that the 2002 amendment alleviates
by contemplating a written certification as substitute for the viva voce record
keeper. The modification comports with a recent amendment to Fed. R. Evid.
803(6). The certification can be self-authenticating, rule 902(11).

Rules of Court

Proof of official record, see HRCP rule 44.

Case Notes

Admissions.

Statement not admissible as one against interest because
there was no circumstantial guarantee of its trustworthiness. 67 H. 499, 692
P.2d 1158.

Officer's testimony regarding defendant's silence following
incriminatory statement by unidentified person was inadmissible under adoptive
admission exception of 803(a)(1). 73 H. 41, 828 P.2d 805.

A defendant need not be charged with conspiracy to admit a
statement made against defendant under co-conspirator hearsay exception;
circuit court not clearly erroneous in finding that co-defendant's statements
were made in the course and furtherance of a conspiracy with defendant to
illegally burn down nightclub for profit. 76 H. 148, 871 P.2d 782.

Plaintiff's proffer of evidence was sufficient to justify
trial court's preliminary determination under rule 104 and paragraph (a)(2)(C)
of the existence of conspiracies and admission of out-of-court statements where
statements of other witnesses taken in context with statements of alleged
co-conspirators supported allegations of a conspiracy. 89 H. 91, 969 P.2d
1209.

Where trial court did not make an adequate preliminary
determination as to whether defendant had adopted relatives' statements as
defendant's own and defendant's nonverbal reaction was so ambiguous that it
could not reasonably be deemed sufficient to establish that defendant
manifested such an adoption, evidence of statements lacked proper foundation,
constituted irrelevant and inadmissible hearsay and were thus erroneously
admitted. 92 H. 161, 988 P.2d 1153.

Whether a defendant has manifested an adoption of or belief
in another's statement under paragraph (a)(1)(B) is a preliminary question of
fact for the trial judge under rule 104(a). 92 H. 161, 988 P.2d 1153.

Where cell phone text messages qualified as statements
offered by the State against defendant to show defendant's history of threats
against the complainant, the messages were admissions by a party-opponent under
paragraph (a)(1); thus, the actual text messages were admissible as an
exception to hearsay under paragraph (a)(1), and complainant's testimony about
the text messages were admissible because the text messages themselves were
admissible under the exception for party admissions. 117 H. 127, 176 P.3d 885.

Trial court did not err in allowing co-defendant/witness'
testimony to be used against defendant as a defendant cannot prevent a witness
from testifying as to what the witness heard defendant say simply because such
testimony might force the defendant to take the stand to explain those
statements. 104 H. 517 (App.), 92 P.3d 1027.

Where defendant did not include on witness list the physician
as an expert witness to be called at trial and represented to the trial court
at the pretrial conference that defendant would not call the physician at
trial, physician's report did not fall under paragraph (a)(2)(A) as a vicarious
admission by a person authorized by the party to make such a statement and
report was thus inadmissible. 108 H. 89 (App.), 117 P.3d 821.

Where there was nothing in the record to suggest that
defendant controlled physician in the performance of physician's medical
examination of plaintiff, trial court could not have found that physician was
an agent of defendant; thus, record did not support, and trial court erred in
admitting physician's report under paragraph (a)(2)(B) as a vicarious admission
by a party's agent. 108 H. 89 (App.), 117 P.3d 821.

Excited utterances.

Declarant's statement not excited utterance where record
indicated it was not spontaneous nor was it generated by an excited feeling extending
without letup from the event described. 67 H. 499, 692 P.2d 1158.

Child relating events which occurred at least a half a day
later was not an excited utterance; lay testimony on credibility, discussed.
70 H. 32, 761 P.2d 299.

Alleged victim's statements to police in family abuse case
were inadmissible as excited utterances. 72 H. 469, 822 P.2d 519.

Police officer's testimony improperly admitted where
declarant's statement to police not reasonably contemporaneous with event;
testimony of declarant's father regarding declarant's out of court statement
properly admitted under exception. Appellant's right to confrontation under
article I, §14 of Hawaii constitution violated where prosecution failed to
issue trial subpoena to declarant and failed to make a showing of declarant's
unavailability. 74 H. 343, 845 P.2d 547.

A "very short" time interval between a startling
event and an excited utterance, although a factor in the determination, is not
a foundational prerequisite to admissibility of a statement under paragraph
(b)(2). 82 H. 202, 921 P.2d 122.

Statement by shooting victim was made while victim was still
under the stress of excitement caused by the shooting though shooting had
occurred within the previous half hour; statement thus admissible. 82 H. 202,
921 P.2d 122.

Given violent nature of startling event and life-threatening
nature of wife's injuries, wife's statements to police and medical personnel
were made while under stress of excitement and were not product of reflective
thought; statements were thus admissible as substantive evidence of husband's
guilt without a limiting instruction. 83 H. 289, 926 P.2d 194.

Where the particularized and comprehensive nature of
complaining witness' statement, made in response to questioning by police,
exceeded a "truly spontaneous outburst", and the statement was
detailed, logical and coherent, involving a lengthy narrative of the events of
an entire evening, the statement was not delivered while complainant was still
"under the stress of excitement"; thus, trial court erred in
admitting statement under the excited utterance exception to the hearsay rule
under paragraph (b)(2). 109 H. 445, 127 P.3d 941.

Child's statement to parent detailing rape and sexual abuse
made ten days after event occurred is not part of the res gestae. 2 H. App.
643, 639 P.2d 413.

Victim's statements to police in family abuse case was
admissible as excited utterances. 8 H. App. 238, 798 P.2d 908.

Victim's statement that victim did not have a gun admissible
under this exception where statement made while victim under stress of
excitement caused by imminent threat of death and statement was related to the
"startling event" of facing death. 84 H. 203 (App.), 932 P.2d 340.

Where victim's statements to 911 operator were made in the
midst of being chased and rammed by a car carrying three large males whom
victim believed were trying to kill victim, statements easily satisfied the
requirements of paragraph (b)(2) and were thus admissible; the fact that some
of the victim's statements were made in response to questions by the 911
operator did not prevent them from qualifying as excited utterances. 106 H.
517 (App.), 107 P.3d 1190.

Judgment of previous conviction.

Prohibition against admitting nolo contendere convictions
under paragraph (b)(22) not applicable when offered to prove fact of previous
conviction, not the facts supporting and sustaining previous conviction. 83 H.
507, 928 P.2d 1.

Learned treatises.

Trial court did not err in declining to re-open the direct
testimony of physician, who was not identified as an expert witness in the
medical malpractice case, to allow plaintiffs to introduce medical articles
where physician did not testify that physician relied on any of the articles to
assess patient's condition and there was nothing in the record to indicate that
the articles were called to the attention of the expert witness upon
cross-examination or relied upon by the witness in direct examination. 119 H.
136 (App.), 194 P.3d 1098.

Present sense impression.

Victim's statement that victim did not have a gun admissible
under this exception where statement described victim's condition of being
unarmed and statement was made in substantial contemporaneity of condition. 84
H. 203 (App.), 932 P.2d 340.

Public records.

Officer's testimony regarding declarant's statements in
police form not admissible under paragraph (b)(8)(C). 83 H. 472, 927 P.2d
1355.

Redacted judgment of defendant's previous nolo contendere
conviction for first degree burglary was admissible under this exception. 83
H. 507, 928 P.2d 1.

Affidavits of county administrator of leasehold conversion
program fell under the public records and reports exception of paragraph
(b)(8)(C) where they were a data compilation by a public agency, and the
findings they set forth are purely factual, and resulted from a detailed
inquiry that the agency undertook. 110 H. 39, 129 P.3d 542.

Although recitation by complainant of police report
describing the cell phone text messages would have been inadmissible hearsay
under rule 802.1(4) and paragraph (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.

Where sworn statements made by police intoxilyzer supervisor
admitted into evidence pursuant to this rule as public records could not be
considered "testimonial" hearsay, the statements were not subject to
the requirements of the Sixth Amendment; thus, no showing of the supervisor's
unavailability nor a prior opportunity for cross-examination was required prior
to admission. 114 H. 396 (App.), 163 P.3d 199.

In DUI case, information on log showing breath-testing
instrument had been tested for accuracy was admitted under public records and
reports exception under (b)(8)(B). 9 H. App. 130, 828 P.2d 813.

Reputation.

Officer's testimony regarding Ewa boundary of Honolulu district, being probative of facts establishing venue under §701-114, was relevant
and admissible under paragraph (b)(20). 80 H. 297, 909 P.2d 1112.

Testimony of others regarding their observation and knowledge
is not reputation testimony. 4 H. App. 584, 671 P.2d 1025.

Statements for purposes of medical diagnosis or treatment.

Defendant's videotaped reenactment of defendant's role in the
events of the day of the murder, upon which psychologist relied for the purpose
of diagnosing defendant and which psychologist testified was "good
practice" in the field of forensic psychology, qualified as an exception
under paragraph (b)(4). 99 H. 542, 57 P.3d 467.

Statements in ancient documents.

Where statement by son in 1872 lease that son had received
the parcel of land from his father was in a document affecting an interest in
property, the statement asserted the son's right to transfer the interest in
that property, the lease was dated more than twenty years prior to the
initiation of this case, and the authenticity of the lease was not disputed,
under paragraph (b)(15) and (16), the lease was admissible as an exception to
the hearsay rule. 114 H. 56 (App.), 156 P.3d 482.

Statements in documents affecting interest in property.

Circuit court did not abuse its discretion in considering
recitals in deed pursuant to paragraph (b)(15); circumstances did not indicate
a lack of trustworthiness regarding statement in deed. 76 H. 402, 879 P.2d 507.

State of mind.

Declarant's out-of-court statements properly admitted where
relevant to prove defendant's motive to kill girlfriend who wanted to leave
relationship. 79 H. 468, 903 P.2d 1289.

Error to admit complainant's statement that complainant
feared being beaten up by boyfriend if complainant was seen talking to officer
since most likely inference to be drawn from that statement was that assault by
defendant occurred to cause that fear. 80 H. 469 (App.), 911 P.2d 104.

Other exceptions.

Extra-judicial statements offered to explain officer's
conduct during investigation, but not for their truth. 64 H. 232, 638 P.2d
335; 2 H. App. 633, 638 P.2d 866.

Evidence properly admitted under "other
exceptions". 4 H. App. 222, 665 P.2d 165.