Rule 1102 Jury instructions; comment on evidence prohibited. The court shall instruct the jury regarding the law applicable to the facts of the case, but shall not comment upon the evidence. It shall also inform the jury that they are the exclusive judges of all questions of fact and the credibility of witnesses. L 1980, c 164, pt of §1

RULE 1102 COMMENTARY

This rule, which has no Fed. R. Evid. counterpart, replaces two prior statutes, Hawaii Rev. Stat. §§635-15, 635-17 (1976) (repealed 1980) (originally enacted as L 1892, c 56, §1; am L 1932 2d, c 24, §1; am L 1972, c 89, §2B(e); and L 1932 2d, c 24, §2). §635-15 authorized the court to "charge the jury whether there is or is not evidence, indicating the evidence, if any, tending to establish or rebut any specific fact involved in the case." §635-17 authorized the court, "in a criminal case, [to] make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case." The present rule precludes "comment upon the evidence" in all cases. This of course is not intended to restrict the court's function set forth in Article II (judicial notice) and Article III (presumptions).

Case Notes

Plain language of this rule establishes that the prohibition against judicial comment on the evidence is not limited to jury instructions; thus, rule applied to trial court's interjected comment; however, where trial court's jury instructions cured the impropriety, court's comment on the evidence was not prejudicial to defendant. 103 H. 38, 79 P.3d 131 (2003).

Where petitioner argued that the court erred in instructing the jury solely on accomplice liability as to petitioner's passenger, and thus commented on the evidence in violation of this rule, petitioner waived any objection to the court's instructions under this rule; at trial, petitioner did not object to the court's instructions or argue that the court's instructions constituted a comment on the evidence under this rule and petitioner did not request any additional instructions reflecting petitioner's position that although petitioner's passenger was only charged as an accomplice, the passenger was solely responsible for the robbery. 131 H. 353, 319 P.3d 272 (2013).

Court's reference in jury instructions to witness as "the victim" was improper comment on the evidence, as whether witness had been abused was a question to be decided by the jury. 79 H. 413 (App.), 903 P.2d 718 (1995).

Trial court's inclusion of the word "significant" in the extreme mental or emotional disturbance jury instruction did not constitute a "comment upon the evidence" prohibited by this rule; by inserting the word, the trial court was in fact fulfilling its duty under this rule to "instruct the jury regarding the law applicable to the facts of the case". 107 H. 452 (App.), 114 P.3d 958 (2005).