Rule 1102 Jury instructions; comment on evidence prohibited. The court shall instruct the jury regarding the law applicable to the facts of the case, but shall not comment upon the evidence. It shall also inform the jury that they are the exclusive judges of all questions of fact and the credibility of witnesses. L 1980, c 164, pt of §1
RULE 1102 COMMENTARY
This rule, which has no Fed. R. Evid. counterpart, replaces two prior statutes, Hawaii Rev. Stat. § §635-15, 635-17 (1976) (repealed 1980) (originally enacted as L 1892, c 56, §1; am L 1932 2d, c 24, §1; am L 1972, c 89, §2B(e); and L 1932 2d, c 24, §2). §635-15 authorized the court to "charge the jury whether there is or is not evidence, indicating the evidence, if any, tending to establish or rebut any specific fact involved in the case." §635-17 authorized the court, "in a criminal case, [to] make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case." The present rule precludes "comment upon the evidence" in all cases. This of course is not intended to restrict the court's function set forth in Article II (judicial notice) and Article III (presumptions).
Case Notes
Plain language of this rule establishes that the prohibition against judicial comment on the evidence is not limited to jury instructions; thus, rule applied to trial court's interjected comment; however, where trial court's jury instructions cured the impropriety, court's comment on the evidence was not prejudicial to defendant. 103 H. 38, 79 P.3d 131 (2003).
Where petitioner argued that the court erred in instructing the jury solely on accomplice liability as to petitioner's passenger, and thus commented on the evidence in violation of this rule, petitioner waived any objection to the court's instructions under this rule; at trial, petitioner did not object to the court's instructions or argue that the court's instructions constituted a comment on the evidence under this rule and petitioner did not request any additional instructions reflecting petitioner's position that although petitioner's passenger was only charged as an accomplice, the passenger was solely responsible for the robbery. 131 H. 353, 319 P.3d 272 (2013).
Trial judge's suggestion in front of jury that State was correct in arguing that defendant could be found to have violated terms of a protective order was an improper comment on the evidence. 136 H. 489, 363 P.3d 838 (2015).
Court's reference in jury instructions to witness as "the victim" was improper comment on the evidence, as whether witness had been abused was a question to be decided by the jury. 79 H. 413 (App.), 903 P.2d 718 (1995).
Trial court's inclusion of the word "significant" in the extreme mental or emotional disturbance jury instruction did not constitute a "comment upon the evidence" prohibited by this rule; by inserting the word, the trial court was in fact fulfilling its duty under this rule to "instruct the jury regarding the law applicable to the facts of the case". 107 H. 452 (App.), 114 P.3d 958 (2005).
Structure Hawaii Revised Statutes
106 Remainder of or related writings or recorded statements.
201 Judicial notice of adjudicative facts.
302 Presumptions in civil proceedings.
303 Presumptions imposing burden of producing evidence.
304 Presumptions imposing burden of proof.
306 Presumptions in criminal proceedings.
401 Definition of "relevant evidence".
402 Relevant evidence generally admissible; irrelevant evidence inadmissible.
403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
404 Character evidence not admissible to prove conduct; exceptions; other crimes.
405 Methods of proving character.
407 Subsequent remedial measures.
408 Compromise, offers to compromise, and mediation proceedings.
409 Payment of medical and similar expenses.
410 Inadmissibility of pleas, plea discussions, and related statements.
412 Sexual offense and sexual harassment cases; relevance of victim's past behavior.
501 Privileges recognized only as provided.
502 Required reports privileged by statute.
504 Physician-patient privilege.
504.1 Psychologist-client privilege.
509 Privilege against self-incrimination.
511 Waiver of privilege by voluntary disclosure.
512 Privileged matter disclosed under compulsion or without opportunity to claim privilege.
513 Comment upon or inference from claim of privilege; instructions.
601 General rule of competency.
602 Lack of personal knowledge.
605 Competency of judge as witness.
606 Competency of juror as witness.
608 Evidence of character and conduct of witness.
609 Impeachment by evidence of conviction of crime.
610 Religious beliefs or opinions.
611 Mode and order of interrogation and presentation.
612 Writing used to refresh memory.
613 Prior statements of witnesses.
614 Calling and interrogation of witness by court.
616 Televised testimony of child.
701 Opinion testimony by lay witnesses.
704-416 overrides this rule. 71 H. 591, 801 P.2d 27 (1990).
703 Bases of opinion testimony by experts.
704 Opinion on ultimate issue.
705 Disclosure of facts or data underlying expert opinion.
803 Hearsay exceptions; availability of declarant immaterial.
804 Hearsay exceptions; declarant unavailable.
806 Attacking and supporting credibility of declarant.
901 Requirement of authentication or identification.
903 Subscribing witness' testimony unnecessary.
1003 Admissibility of duplicates.
1004 Admissibility of other evidence of contents.
1007 Testimony or written admission of party.
1008 Functions of court and jury.
1102 Jury instructions; comment on evidence prohibited.
626-2 Effective date; applicability to future cases and pending cases.