§704-410  Form of expert testimony regarding
physical or mental disease, disorder, or defect.  (1)  At the hearing
pursuant to section 704-405 or upon the trial, the examiners who reported
pursuant to section 704-404 may be called as witnesses by the prosecution, the
defendant, or the court.  If the issue is being tried before a jury, the jury
may be informed that the examiners or any of them were designated by the court
or by the director of health at the request of the court, as the case may be. 
If called by the court, the witness shall be subject to cross-examination by
the prosecution and the defendant.  Both the prosecution and the defendant may
summon any other qualified physician or licensed psychologist or other expert
to testify, but no one who has not examined the defendant shall be competent to
testify to an expert opinion with respect to the physical or mental condition
of the defendant, as distinguished from the validity of the procedure followed
by, or the general scientific propositions stated by, another witness.



(2)  When an examiner testifies on the issue of
the defendant's fitness to proceed, the examiner shall be permitted to make a
statement as to the nature of the examiner's examination, the examiner's
diagnosis of the physical or mental condition of the defendant, and the
examiner's opinion of the extent, if any, to which the capacity of the
defendant to understand the proceedings against the defendant or to assist in
the defendant's own defense is impaired as a result of physical or mental
disease, disorder, or defect.



(3)  When an examiner testifies on the issue of
the defendant's responsibility for conduct alleged or the issue of the
defendant's capacity to have a particular state of mind which is necessary to
establish an element of the offense charged, the examiner shall be permitted to
make a statement as to the nature of the examiner's examination, the examiner's
diagnosis of the physical or mental condition of the defendant at the time of
the conduct alleged, and the examiner's opinion of the extent, if any, to which
the capacity of the defendant to appreciate the wrongfulness of the defendant's
conduct or to conform the defendant's conduct to the requirements of law or to
have a particular state of mind which is necessary to establish an element of
the offense charged was impaired as a result of physical or mental disease,
disorder, or defect at that time.



(4)  When an examiner testifies, the examiner
shall be permitted to make any explanation reasonably serving to clarify the examiner's
diagnosis and opinion and may be cross-examined as to any matter bearing on the
examiner's competency or credibility or the validity of the examiner's
diagnosis or opinion. [L 1972, c 9, pt of §1; am L 1980, c 222, §1(4); am L
1988, c 305, §6; gen ch 1993]



 



COMMENTARY ON §704-410



 



  This section sets forth the form in which expert testimony
shall proceed at a hearing on the issue of fitness to proceed, at a hearing or
trial on the issue of defendant's responsibility, or at a trial on the issue of
defendant's capacity to have a particular state of mind.



  Subsection (1) allows the court somewhat greater freedom than
that which existed under the prior law by permitting it to call an examiner,
who has reported pursuant to §704-404, as a witness.  If the court does call an
examiner, cross-examination is permitted by both parties.  Subsection (1) also
precludes opinion testimony as to the defendant's condition by an expert who
has not examined the defendant.  The intent of the Code is to eliminate testimony
in this area based solely on a hypothetical question or an observation in a
courtroom or both.



  Subsections (2), (3) and (4) assure that an expert who has
examined the defendant will have an adequate opportunity to state and explain
the expert's diagnosis of the defendant's relevant physical or mental condition
and to state and explain the expert's opinion as to the impairment of the
defendant's relevant capacities without being restricted to examination by
means of the hypothetical question.  The expert is, of course, subject to
cross-examination on any statement which the expert makes by way of diagnosis,
opinion, or explanation and on any other matter bearing on the expert's
competency or credibility.



 



SUPPLEMENTAL COMMENTARY ON §704-410



 



  Act 305, Session Laws 1988, included licensed psychologists
among the professionals which may provide offender examination services to the
Hawaii criminal justice system.  The legislature stated that the present laws,
which permit only psychiatric evaluation, are inconsistent with the many and
varied uses the court has found for the services of licensed psychologists. 
Senate Standing Committee Report No. 2153.



 



Case Notes



 



  No conflict of interest where examiner was paid by State to
be on defendant's panel of neutral examiners and later retained by State to
testify on issue of defendant's responsibility for conduct or state of mind
comprising offense.  74 H. 141, 838 P.2d 1374.