Rule 103 Rulings on evidence. (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and:

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. [L 1980, c 164, pt of §1; am L 2006, c 73, §1]

RULE 103 COMMENTARY

This rule is identical with Fed. R. Evid. 103.

Subsection (a): This subsection expresses the principle that a ruling admitting or excluding evidence cannot be assigned as error unless it affects a substantial right and unless the court is clearly apprised of the nature of the claimed error and of the corrective action sought. The objection or motion to strike, addressed to a ruling admitting evidence, and the offer of proof, directed to a ruling excluding evidence, provide the appropriate procedural mechanisms.

The rule restates existing Hawaii law. In Trask v. Kam, 44 H. 10, 22, 352 P.2d 320, 326-27 (1959), the court pointed out that error in admission of testimony is not a basis for reversal absent "substantial resulting prejudice" to the rights of a party. See Berkson v. Post, 38 H. 436 (1949); HRCP 61.

In State v. Okura, 56 H. 455, 458, 541 P.2d 9, 11 (1975), the court held: "A motion to strike must be specific; it must be directed with precision to the matter sought to be stricken and a general motion to strike all testimony must be overruled if any portion of that testimony is admissible." There is a need for a specific offer of proof, Warshaw v. Rockresorts, 57 H. 645, 651, 562 P.2d 428, 433 (1977), unless the nature of the error is clear, Territory v. Branco, 42 H. 304, 313 (1958).

Subsection (b): This subsection generally restates relevant provisions of HRCP 43(c). The intent is to provide the appellate court with a record adequate for final disposition of an evidentiary point. The provision is discretionary rather than mandatory, leaving determination of adequacy of record to the judgment of the trial court.

Subsection (c): This provision recognizes that an exclusionary ruling may be nullified if the evidence sought to be excluded is brought to the attention of the jury either through an offer of proof or other means. Cf. Bruton v. United States, 391 U.S. 123 (1968); HRCP 43(c).

Subsection (d): This provision resembles HRCrP 52(b): "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Cf. Lindeman v. Raynor, 43 H. 299, 303 (1959): "Even without objection the court may reject improper evidence."

Rules of Court

Harmless error, see HRCP rule 61; HRPP rule 52(a); DCRCP rule 61.

Plain error, see HRPP rule 52(b).

Record of excluded evidence, see HRCP rule 43(c); DCRCP rule 43(c).

Case Notes

Chemist's testimony regarding net weight of cocaine improperly admitted where prosecution failed to lay proper foundation that balance was in proper working order such that weight measured by balance could be relied upon as substantive fact. 80 H. 382, 910 P.2d 695 (1996).

Where objection to officer's testimony regarding gross weight of cocaine did not challenge accuracy of certified gram scale, issue of accuracy of scale waived. 80 H. 382, 910 P.2d 695 (1996).

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 HRE rule 613(b), adversely affected defendant's substantial right to confrontation, and was reversible error. 118 H. 493, 193 P.3d 409 (2008).

Where plaintiffs' counsel did not object to defendant's expert's testimony until after expert had been questioned on direct examination, cross-examination, and redirect examination, and no motion to strike expert's testimony was made until two days later, after defense had already rested its case and the court had already determined the instructions to be submitted to jury, plaintiffs' objection to expert's testimony was untimely and was thus waived for appeal purposes. 77 H. 446 (App.), 887 P.2d 656 (1993).

Discussed: 129 H. 313, 300 P.3d 579 (2013).

Mentioned: 74 H. 1, 837 P.2d 1273 (1992).