Rule 702.1 Cross-examination of experts. (a) General. A witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be cross-examined as to (1) the witness' qualifications, (2) the subject to which the witness' expert testimony relates, and (3) the matter upon which the witness' opinion is based and the reasons for the witness' opinion.
(b) Texts and treatises. If a witness testifying as an expert testifies in the form of an opinion, the witness may be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication only if:
(1) The witness referred to, considered, or relied upon such publication in arriving at or forming the witness' opinion, or
(2) Such publication qualifies for admission into evidence under rule 803(b)(18). [L 1980, c 164, pt of §1; gen ch 1985]
RULE 702.1 COMMENTARY
This rule has no counterpart in Fed. R. Evid. It is modeled on Cal. Evid. Code §721.
Subsection (a): An expert witness differs from a lay witness principally in his ability to draw and to testify to inferences that are beyond the competence of the trier of fact. In addition, the expert is not restricted to firsthand knowledge and may base his opinions and inferences on a wide variety of data and facts perceived by him or made known to him, whether or not they are admissible in evidence, see Rule 703 infra.
Such a broad testimonial range suggests the need for an equally broad cross-examination, and subsection (a) of this rule provides the appropriate latitude. Subsection (a) restates existing law, see McCandless v. Waiahole Water Co., Ltd., 35 H. 314, 320 (1940).
Subsection (b): This subsection clarifies the permissible use of texts and treatises on cross-examination. Hawaii courts have long recognized that an expert may be subjected to cross-examination concerning publications upon which he has relied, see Fraga v. Hoffschlaeger, 26 H. 557, 567 (1922).
Subsection (b)(2) parallels Rule 803(b)(18) which, agreeably with Fed. R. Evid. 803(18), exempts from the hearsay exclusion those texts and treatises that are used on cross-examination. The criterion of Rule 803(b)(18) is that the material be "established as a reliable authority," regardless of whether or not the witness has relied on it. Use of such material on cross-examination was approved in Ruth v. Fenchel, 37 N.J. Super. 295, 117 A.2d 284 (1955), aff'd, 21 N.J. 171, 121 A.2d 373 (1956). The Ruth case was cited approvingly by Chief Justice Richardson in Tittle v. Hurlbutt, 53 H. 526, 534, 497 P.2d 1354, 1359 (1972), in connection with the following statement: "This court recognizes the wisdom of enlarging the scope of use of medical texts on cross-examination." That wisdom is codified in subsection (b).
Case Notes
Section 704-416 overrides this rule. 71 H. 591, 801 P.2d 27 (1990).
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.