Hawaii Revised Statutes
704. Penal Responsibility and Fitness to Proceed
704-410 Form of expert testimony regarding physical or mental disease, disorder, or defect.

§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 (1992).

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