Rule 704 Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. [L 1980, c 164, pt of §1]
RULE 704 COMMENTARY
This rule is identical with Fed. R. Evid. 704. It abolishes the common-law rule disallowing testimony upon an "ultimate issue" in the case of trial.
Rejection of the "ultimate issue" ban is consistent with recent actions in a majority of the states, see McCormick §12. Determination of what is or is not an "ultimate issue" rendered the rule difficult to apply in practice; undue restrictiveness in its application often deprived the jury of useful information; the necessity for framing testimony in such a way that it does not violate the rule often produced awkward and confusing circumlocutions; and the usual justification for the ban, that such testimony invades the province of the jury, was of questionable logical validity in any event. See McCormick, supra; 7 Wigmore, Evidence § §1920, 1921.
Prior to the adoption of this rule Hawaii adhered to the "ultimate issue" exclusion, see Friedrich v. Department of Transportation, 60 H. 32, 586 P.2d 1037 (1978); Sherry v. Asing, 56 H. 135, 147, 531 P.2d 648, 657 (1975); Cozine v. Hawaiian Catamaran, Ltd., 49 H. 77, 412 P.2d 669 (1966).
The abolition of the "ultimate issue" rule does not leave the court without safeguards. First, the present rule requires that the testimony be "otherwise admissible." Second, under the limitations of Rules 701 and 702 supra, opinion testimony must be helpful to the trier of fact. Third, under Rule 705 infra, the court at its discretion may require prior disclosure of the underlying facts or data upon which the opinion is based. Finally, under Rules 403 and 703 supra, the court has discretion to exclude the testimony entirely if it is prejudicial, confusing, misleading, unnecessarily cumulative, or lacking in trustworthiness. As the Advisory Committee's Note to Fed. R. Evid. 704 puts it:
These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have the capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed.
Case Notes
Medical examiner's conclusion that death occurred by homicide was inadmissible. 70 H. 509, 778 P.2d 704 (1989).
Although officer's opinion testimony was offering a legal conclusion as to whether defendant was DUI, any error in connection with testimony was harmless beyond a reasonable doubt. 91 H. 288, 983 P.2d 189 (1999).
Opinion testimony of eyewitness to motorist-pedestrian collision that motorist was traveling at an unsafe speed was relevant to an ultimate fact and thus admissible, given: (1) eyewitness' personal knowledge of the events due to eyewitness' vantage point; (2) the fact that eyewitness did not testify on any question of law; and (3) that any issues related to eyewitness' definition of "unsafe speed" could have been addressed during cross-examination. 136 H. 415, 363 P.3d 263 (2015).
Fact that expert's testimony regarding child sexual abuse embraced ultimate issue to be decided by trier of fact did not render it inadmissible. 8 H. App. 638, 819 P.2d 1122 (1991).
Family court abused its discretion in permitting officers' testimony, which was tantamount to an expression of their opinion that the complainant had been truthful in accusing defendant, which impermissibly invaded the province of the jury; this error affected defendant's substantial rights and defendant's convictions thus vacated. 112 H. 136 (App.), 144 P.3d 584 (2006).
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.