Rule 802.1 Hearsay exception; prior statements by witnesses. The following statements previously made by witnesses who testify at the trial or hearing are not excluded by the hearsay rule:

(1) Inconsistent statement. The declarant is subject to cross-examination concerning the subject matter of the declarant's statement, the statement is inconsistent with the declarant's testimony, the statement is offered in compliance with rule 613(b), and the statement was:

(A) Given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or

(B) Reduced to writing and signed or otherwise adopted or approved by the declarant; or

(C) Recorded in substantially verbatim fashion by stenographic, mechanical, electrical, or other means contemporaneously with the making of the statement;

(2) Consistent statement. The declarant is subject to cross-examination concerning the subject matter of the declarant's statement, the statement is consistent with the declarant's testimony, and the statement is offered in compliance with rule 613(c);

(3) Prior identification. The declarant is subject to cross-examination concerning the subject matter of the declarant's statement, and the statement is one of identification of a person made after perceiving that person; or

(4) Past recollection recorded. A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. [L 1980, c 164, pt of §1; gen ch 1985; am L 1992, c 191, §2(8)]

RULE 802.1 COMMENTARY

This rule effects a reorganization of certain of the hearsay provisions found in Article VIII of the federal rules. The formulation follows generally the scheme of Cal. Evid. Code in treating all appropriate prior witness statements in a single rule. The federal rules, in contrast, treat certain prior inconsistent statements, prior consistent statements, and prior identifications as non-hearsay, Fed. R. Evid. 801(d)(1); and place past recorded recollections among the hearsay exceptions for which the availability of the declarant is immaterial, Fed. R. Evid. 803(5).

This rule should be understood in connection with Rule 613, "Prior statements of witnesses." Rule 613(b) governs the use of prior inconsistent statements for impeachment purposes, and Rule 613(c) governs the use of prior consistent statements for rehabilitation purposes. The present rule, in contrast, defines those prior statements by witnesses that may in addition be considered by the trier of fact to prove the truth of the matters asserted, that is, as exceptions to the hearsay ban of Rule 802.

Paragraph (1): At common law all prior inconsistent statements of witnesses were classed as hearsay and thus required instructions limiting consideration to impeachment purposes. Prior Hawaii law was to the same effect, see generally Kekua v. Kaiser Foundation Hosp., 61 H. 208, 601 P.2d 364 (1979). Fed. R. Evid. 801(d)(1)(A) modified the common-law rule to permit one class of inconsistent statements--those "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition"--to be used substantively for the truth of the contents. The present paragraph retains this exempted federal class in paragraph (1)(A) and adds two new classes of inconsistent statements that become exceptions to the hearsay rule, paragraph (1)(B) and (C). The intent is to include in paragraph (1) all written or recorded statements that can fairly be attributed to the witness-declarant. The language of paragraph (1)(A) is virtually identical with Fed. R. Evid. 801(d)(1)(A); the language of paragraph (1)(B) and (C) is borrowed from the federal "Jencks Act," 18 U.S.C. §3500(e)(1) and (2).

The "Jencks Act" governs the production or discovery, in federal criminal trials, of written or recorded statements made to government agents by government witnesses. Subdivision (e)(1) statements are those "signed or otherwise adopted or approved" by a witness. Subdivision (e)(2) statements, although not signed or approved by the witness, are "substantially verbatim" written or recorded accounts of oral statements made "contemporaneously with the making" of the oral statements. The language of subdivisions (e)(1) and (e)(2) is virtually the same as that of paragraph (1)(B) and (C) of the present rule. The purpose of subdivisions (e)(1) and (e)(2) of the Jencks Act, according to the Supreme Court in Palermo v. United States, 360 U.S. 343, 349-52 (1959), is to define the "most trustworthy class of statements" of witnesses to be turned over to the defense for impeachment purposes. Regarding the requirement that (e)(2) subdivision statements be "substantially verbatim," the court said: "It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available" under the Act. Since the purpose of Congress in writing subdivision (e) of the Jencks Act was similar to the legislative intent in adopting paragraph (1)(B) and (C) of the present rule, the Palermo case and other cases construing the Jencks Act, e.g., Williams v. United States, 338 F.2d 286 (D.C. Cir. 1964), will be helpful in defining the parameters of this rule.

The trustworthiness of statements defined in paragraph (1)(A), (B), and (C) is further assured by the requirement that the witness-declarant be "subject to cross-examination concerning the subject matter of the statement." The situation envisioned is one where the witness has testified about an event and his prior written statement also describes that event but is inconsistent with his testimony. Since the witness can be cross-examined about the event and the statement, the trier of fact is free to credit his present testimony or his prior statement in determining where the truth lies. Because the witness is subject to cross-examination, the substantive use of his prior inconsistent statements does not infringe the sixth amendment confrontation rights of accused in criminal cases, see California v. Green, 399 U.S. 149 (1970).

Paragraph (2): Rule 613(c) identifies three classes of prior consistent statements that are admissible for rehabilitation purposes. The present paragraph permits substantive use of these statements. This is consistent with prior Hawaii law, see State v. Altergott, 57 H. 492, 559 P.2d 728 (1977).

Paragraph (3): The substantive use of prior identifications is allowed in Fed. R. Evid. 801(d)(1)(C), the Advisory Committee's Note to which says: "The basis is the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions." Note that this paragraph addresses only the hearsay issue. The use of prior identifications in criminal cases may present constitutional problems as well, see, e.g., Foster v. California, 394 U.S. 440 (1969); Gilbert v. California, 388 U.S. 263 (1967).

Paragraph (4): This paragraph is identical with Fed. R. Evid. 803(5), and it restates the common-law hearsay exception for recorded recollection, see State v. Altergott, 57 H. 492, 559 P.2d 728 (1977).

Law Journals and Reviews

Familial Violence and the American Criminal Justice System. 20 UH L. Rev. 375 (1998).

Case Notes

Composite sketch is hearsay but is admissible under prior identification exception if it complies with rule 802.1(3). 66 H. 254, 659 P.2d 745 (1983).

Prior identification exception allows admission of pretrial identifications not merely as corroborative evidence but as substantive proof of identity. 66 H. 254, 659 P.2d 745 (1983).

Prior identification evidence was properly admitted as substantive proof of identity where identifying witness failed to make in-court identification. 72 H. 573, 827 P.2d 648 (1992).

Abuse victim's prior inconsistent statements met requirements under this section for admissibility as substantive evidence of defendant's guilt. 81 H. 131, 913 P.2d 57 (1996).

Wife's tape recorded statement to detective properly admitted under paragraph (1)(C) and rule 613(b) as substantive evidence of husband's guilt. 83 H. 289, 926 P.2d 194 (1996).

Where witness admitted throughout testimony to having made prior oral inconsistent statements, witness' transcribed interview admitted in violation of paragraph (1) and rule 613(b). 91 H. 181, 981 P.2d 1127 (1999).

Admission into evidence of witness' grand jury testimony under paragraph (4) did not violate defendant's constitutional right to confrontation where witness' testimony was supported by numerous guarantees of trustworthiness and defendant was able to cross-examine witness on witness' subsequent failure to remember alleged incident. 92 H. 61, 987 P.2d 959 (1999).

Admission into evidence of witness' handwritten statement on the bottom of an identification form under paragraph (4) did not violate defendant's constitutional right to confrontation where witness' statement was supported by numerous guarantees of trustworthiness. 92 H. 61, 987 P.2d 959 (1999).

Where prior inconsistent statements were properly admitted under paragraph (1)(C) and witnesses were cross-examined with respect to their statements, substantive use of statements did not violate defendant's constitutional right to confrontation. 92 H. 61, 987 P.2d 959 (1999).

Although recitation by complainant of police report describing the cell phone text messages would have been inadmissible hearsay under paragraph (4) and rule 803(b)(8), where complainant could recall substantial details about the messages prior to reading the report, which suggested that complainant possessed a memory of the messages that only needed refreshment via the report, complainant properly testified about the text messages after viewing the police report pursuant to rule 612. 117 H. 127, 176 P.3d 885 (2008).

Appeals court correctly concluded that witness' statement was admissible as a past recollection recorded under paragraph (4) where witness testified that witness remembered the incident, that the statement was in witness' writing, contained witness’ signature, and that witness wrote the report the day following the incident. 127 H. 91, 276 P.3d 660 (2012).

No merit to State's argument that complainant's videotaped statements were admissible into evidence as exception to hearsay rule under paragraph (2), where complainant was never subjected to cross-examination concerning statements and statements could not be offered into evidence under rule 613(c). 9 H. App. 414, 844 P.2d 1 (1992).

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 this rule. 80 H. 469 (App.), 911 P.2d 104 (1996).

Declarant's signed, written prior statement properly admitted under paragraph (1) where statement was offered in compliance with rule 613(b), declarant was subject to cross-examination concerning subject matter of prior statement, and statement was inconsistent with declarant's testimony. 84 H. 203 (App.), 932 P.2d 340 (1997).

An uncorroborated prior inconsistent statement of a family or household member offered under rule 613 and this rule 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 paragraph (2), it is not a requirement under rule 613(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 paragraph (2), it was admissible to rehabilitate the victim's credibility under rule 613(c). 103 H. 373 (App.), 82 P.3d 818 (2003).

Hearsay testimony of officer properly admitted under paragraph (3); there is no requirement that a declarant vouch for the accuracy of a hearsay statement attributed to the declarant in order to qualify as an exception to hearsay under paragraph (3). 104 H. 285 (App.), 88 P.3d 657 (2004).

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 rule 613(b), trial court erred in failing to admit as substantive evidence at trial pursuant to paragraph (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).