Rule 613 Prior statements of witnesses. (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless, on direct or cross-examination, (1) the circumstances of the statement have been brought to the attention of the witness, and (2) the witness has been asked whether the witness made the statement.

(c) Prior consistent statement of witness. Evidence of a statement previously made by a witness that is consistent with the witness' testimony at the trial is admissible to support the witness' credibility only if it is offered after:

(1) Evidence of the witness' prior inconsistent statement has been admitted for the purpose of attacking the witness' credibility, and the consistent statement was made before the inconsistent statement; or

(2) An express or implied charge has been made that the witness' testimony at the trial is recently fabricated or is influenced by bias or other improper motive, and the consistent statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen; or

(3) The witness' credibility has been attacked at the trial by imputation of inaccurate memory, and the consistent statement was made when the event was recent and the witness' memory fresh. [L 1980, c 164, pt of §1; gen ch 1985]

RULE 613 COMMENTARY

This rule differs markedly from Fed. R. Evid. 613, except that subsection (a) of each rule is identical with the other.

Subsection (a): The purpose of this subsection is to abolish the rule of The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820), which required that a writing used during cross-examination be first shown to the witness. See the Advisory Committee's Note to Fed. R. Evid. 613. That rule was previously abolished in Hawaii by statute, Hawaii Rev. Stat. §621-24 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §60), which provided: "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject matter of the cause or prosecution, without the writing being shown to him...."

Subsection (b): This subsection, governing the extrinsic proof of prior inconsistent statements used to impeach witnesses, should be read in conjunction with Rules 607 and 802.1(1).

Since Rule 607 allows the impeachment of a witness by "any party, including the party calling him," this subsection envisions establishing the traditional foundation "on direct or cross-examination." Requiring that the foundation be established during the examination-in-chief of the witness represents a departure from Fed. R. Evid. 613(b), which abolishes the traditional foundation requirement in favor of simply affording the witness "an opportunity to explain or deny" the impeaching statement at any time during the trial. The only advantage of the federal rule is that "several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement," see the Advisory Committee's Note to Fed. R. Evid. 613(b); the disadvantage, when the impeaching statement is not mentioned during the examination-in-chief of the witness, is that the witness must be kept available during the trial so that the "opportunity to explain or deny" can at some point be afforded. This disadvantage appears to outweigh the advantage of surprising collusive witnesses who have made a joint statement, a situation that may not often arise and in any event may be susceptible of solution under Rule 615 infra.

Prior Hawaii law, see Hawaii Rev. Stat. §621-23 (1976) (repealed 1980) (originally enacted as L 1876, c 32, §59) required, as a precondition to the use of extrinsic evidence of a prior inconsistent statement, that the circumstances of the statement be brought to the attention of the witness and that the witness "not distinctly admit that he has made the statement." See Kekua v. Kaiser Foundation Hosp., 61 H. 208, 601 P.2d 364 (1979); State v. Napeahi, 57 H. 365, 556 P.2d 569 (1976). The theory was that, since the prior statement was hearsay and admissible only for impeachment purposes, the witness' admission that he made the statement completed the impeachment and obviated need for extrinsic evidence of the statement. Rule 802.1(1), however, now provides for substantive use of most prior inconsistent witness statements, and therefore the witness' admission that he made the statement no longer obviates the need for the proponent to prove the statement by extrinsic evidence. Subsection (b) therefore requires only that (1) the circumstances of the statement be brought to the attention of the witness, and (2) the witness be asked whether he made the statement.

In State v. Pokini, 57 H. 26, 29, 548 P.2d 1402, 1405 (1976), the court observed: "The foundation requirement is for the purpose of rekindling the witness' memory, and substantial compliance is all that is necessary." See Territory v. Alcosiba, 36 H. 231, 236 (1942): "A proper foundation of the time, place and circumstance having been laid within the meaning [of the statute] ... proof of the prior statements was [properly] made...."

State v. Altergott, 57 H. 492, 505-08, 559 P.2d 728, 738 (1977), dealt with the proper scope of cross-examination concerning a prior inconsistent statement. Noting that the scope of cross-examination is generally entrusted to the trial court's discretion, the Altergott court held that repetitive and detailed questioning about a prior statement that a witness admitted was false was proper:

Neither a witness nor a party may lawfully escape such cross-examination by his mere testimony or admission that the witness has made statements inconsistent with his testimony at the trial and that they were false. Cross-examination may not be shut off in this way. The cross-examiner has the right to prove by his adversary's witness, if he can, what inconsistent statements he has made, not only in general, but in every material detail, for, the more specific and substantial the contradictory statements were, the less credible is the testimony of the witness.

In Asato v. Furtado, 52 H. 284, 288, 474 P.2d 288, 292 (1970), the court treated the issue of asserted inconsistency through omission:

Whether an omission to state previously a fact now asserted constitutes an inconsistency, sufficient to allow the previous statement to be shown, depends upon the circumstances under which the prior statement was made. Not every omission will constitute such an inconsistency. But where the prior circumstances were such that the speaker could have been expected to state the omitted fact, either because he was asked specifically about it, or because he was purporting to render a full and complete account of the transaction or occurrence, and the omitted fact was an important and material one, so that it would have been natural to state it, the omission gives rise to a justifiable inference that the omitted fact was omitted because it did not exist.

Subsection (c): This subsection, relating to prior consistent statements, has no Fed. R. Evid. counterpart. While Fed. R. Evid. 801(d)(1)(B) purports to exclude one class of consistent statements from the hearsay ban, the federal rules do not address the issue whether other kinds of consistent statements may be used to rehabilitate witnesses. More specifically, the federal rules provide no answer to the issue posed in State v. Altergott, 57 H. 492, 559 P.2d 728 (1977): when the cross-examination of a witness "amounts only to an imputation of inaccurate memory," can a consistent statement made "when the event was recent and the memory fresh" be admitted to rehabilitate? Altergott, relying on McCormick §49 answered this question in the affirmative, and the same result is effected by Rule 613(c)(3). The balance of subsection (c) comes from Cal. Evid. Code §791.

Rules of Court

Depositions, see HRPP rule 15(e); DCRCP rule 32(a).

Case Notes

Wife's tape recorded statement to detective properly admitted under subsection (b) and rule 802.1(1)(C) as substantive evidence of husband's guilt. 83 H. 289, 926 P.2d 194 (1996).

Where the information in a non-party witness' out-of-court statement goes beyond the scope of direct or cross-examination, that information must be redacted before the rest of the statement may be admitted; taped statements thus admitted in violation of subsection (b). 91 H. 181, 981 P.2d 1127 (1999).

Where witness admitted throughout testimony to having made prior oral inconsistent statements, witness' transcribed interview admitted in violation of subsection (b) and rule 802.1(1). 91 H. 181, 981 P.2d 1127 (1999).

Where defendant's credibility was the linchpin of defendant's defense of duress and choice of evils, the prosecution's failure to comply with the foundational requirements of this rule deprived the defendant of a fair opportunity to respond to witness' testimony impeaching defendant's credibility; thus, there was a strong possibility that the erroneous admission of witness' testimony contributed to defendant's conviction and was not harmless error. 101 H. 269, 67 P.3d 768 (2003).

Where trial court erroneously ruled on whether complainant's review of complainant's statement would refresh complainant's recollection by sustaining prosecution's objection on the basis that the complainant had answered defendant's question, this erroneous ruling inhibited defendant from confronting the complainant with a potential prior inconsistent statement under subsection (b), adversely affected defendant's substantial right to confrontation, and was reversible error. 118 H. 493, 193 P.3d 409 (2008).

No merit to State's contention that complainant's videotaped statements were "prior consistent statements" which could be admitted into evidence to rehabilitate complainant's credibility under subsection (c), where complainant's credibility was never attacked by any of the means set forth in subsection (c). 9 H. App. 414, 844 P.2d 1 (1992).

Claimant's response to a criminal victim compensation form's directive to "provide a written statement [about] how the crime affected you" not a prior consistent statement under subsection (c) when offered to support the credibility of the claimant's trial testimony that claimant was not seeking compensation, in the absence of an expression to that effect in the response itself; nor is the statement admissible under subsection (c) to buttress complainant's testimony about complainant's post-incident feelings because defense counsel did not attack complainant's credibility on this subject, by one of the three means required by subsection (c). 79 H. 255 (App.), 900 P.2d 1322 (1995).

Complainant's prior inconsistent statement inadmissible where record failed to establish that complainant was "subject to cross-examination concerning the subject matter of the statement" pursuant to rule 802.1(1). 80 H. 469 (App.), 911 P.2d 104 (1996).

An uncorroborated prior inconsistent statement of a family or household member offered under this rule and rule 802.1 as substantive evidence of the facts stated therein may be sufficient, if believed, to establish physical abuse and the manner in which such abuse was inflicted in a prosecution for physical abuse of a family or household member under §709-906. 84 H. 253 (App.), 933 P.2d 90 (1997).

While the requirement that "the declarant is subject to cross-examination concerning the subject matter of the declarant's statement" is foundational under rule 802.1(2), it is not a requirement under subsection (c); thus, while social worker's recounting of the allegation of sexual assault made by victim during an unrecorded interview may not have been admissible for its substance under rule 802.1(2), it was admissible to rehabilitate the victim's credibility under subsection (c). 103 H. 373 (App.), 82 P.3d 818 (2003).

Where record showed that (1) complainant testified on direct examination about the incidents involving defendant; (2) parts of the testimony were inconsistent with portions of complainant's first statement; (3) complainant admitted on cross-examination that complainant wrote the first statement and signed it; and (4) the prior inconsistent statements were offered in compliance with the foundational requirements of subsection (b), trial court erred in failing to admit as substantive evidence at trial pursuant to rule 802.1(1)(B) portions of complainant's first statement that were inconsistent with complainant's testimony at trial. 116 H. 403 (App.), 173 P.3d 550 (2007).

Mentioned: 74 H. 85, 839 P.2d 10 (1992).