Rule 802 Hearsay rule. Hearsay is not admissible except as provided by these rules, or by other rules prescribed by the Hawaii supreme court, or by statute. L 1980, c 164, pt of §1

RULE 802 COMMENTARY

This rule is identical with Fed. R. Evid. 802, except for the substitution of the phrase "by the Hawaii supreme court or by statute" for the federal rule formulation, "by the Supreme Court pursuant to statutory authority or by Act of Congress," and the addition of a comma after "rules" to increase clarity.

The exclusionary rule does not apply to statements that fall under any of the various hearsay exceptions categorized in Rules 802.1, 803, and 804. Another important limitation to the rule is the provision excepting rules prescribed by the Hawaii Supreme Court. Some examples of this exception are HRCP 4(g), allowing proof of service by affidavit; HRCP 43(e), allowing affidavits on a motion based on facts not appearing of record; HRCP 56, allowing affidavits in summary judgment proceedings; and HRCP 65(b), allowing showing by affidavit for a temporary restraining order.

The Hawaii Supreme Court has frequently and routinely affirmed the truism that hearsay is inadmissible unless it qualifies under a hearsay exception, e.g., State v. Bannister, 60 H. 658, 660, 594 P.2d 133, 134 (1979). The rationale, noted the Bannister court, is that "the trier of fact is unable to test the [declarant's] trustworthiness."

Case Notes

Where store security manager's testimony regarding the price/value of items, based on a universal price code with the price on the item that the manager verified through the store register system, was inadmissible hearsay, State failed to introduce substantial evidence of the value of the items necessary to support the charged offense of second or third degree theft; however, evidence was sufficient to support conviction of lesser included offense of fourth degree theft. 95 H. 169 (App.), 19 P.3d 752 (2001).