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).

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).