Hawaii-2020-HB2610-Amended

SECTION 1. The legislature finds that Oregon has adopted a pioneering approach to addressing certain challenges associated with prosecuting domestic violence cases in which the victims are uncooperative. Victims in these cases are often reluctant to testify in court and may ignore court subpoenas to appear for trial. This reluctance has been attributed to fear of the perpetrator, consequences threatened by the perpetrator if the victim testifies, or more generally to the complicated dynamic of abusive relationships in which the abuser wields power and control over the victim while promising to change and begging for forgiveness between acts of violence.

More specifically, the legislature finds that Oregon's rules of evidence provide a limited hearsay exception for a statement made by a victim of domestic violence to a government official within twenty-four hours of a domestic violence attack, even if the statement is testimonial in nature, as long as the statement bears "sufficient indicia of reliability", which is a determination made by the trial judge.

The legislature notes that the general prohibition on the use of hearsay evidence stems from the federal and state constitutional right of a defendant in a criminal trial to confront the defendant's accusers. This right was examined at length in the United States Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), and clarified by the Court in Davis v. Washington, 547 U.S. 813 (2006). However, a 2017 article in the Boston College Journal of Law and Social Justice noted that Oregon's hearsay exception adequately safeguards a defendant's confrontation right by setting a clear time limit for the admissible hearsay statement to be made, and that in a domestic violence context, victim statements made within twenty-four hours of an incident are the most reliable. After this window, the willingness of victims to cooperate diminishes, the potential for coercion increases, and memories become less clear.

The legislature further notes that Oregon's hearsay exception is premised on a policy approach that treats domestic violence cases as a form of "ongoing emergency". That is, given the statistics showing that incidents of domestic violence tend to escalate over time and sometimes culminate in the victim's death, the mere fact that a single domestic violence attack has ended does not necessarily mean that the emergency has ended. The legislature believes that recognition of a domestic violence incident as being part of a larger "ongoing emergency" is what distinguishes, and makes admissible in certain circumstances, what would otherwise be considered an inadmissible hearsay statement under Crawford v. Washington, Davis v. Washington, and State v. Fields, 115 Hawaii 503 (2007), a Hawaii supreme court opinion that discussed the holdings of the two federal cases. The legislature further believes that, to effectively prosecute domestic violence cases and hold offenders accountable, the Hawaii rules of evidence must strike a balance between protecting the constitutional rights of defendants while promoting the safety of domestic violence victims and the larger society.

Accordingly, the purpose of this Act is to allow a narrow hearsay exception for non-testimonial statements made by a domestic violence victim within not more than a twenty-four hour period of a domestic violence attack and prior to the defendant being arrested regardless of the availability of the declarant, if the statement is non-testimonial in nature, provided that the statement is determined to bear sufficient indicia of reliability.

SECTION 2. Section 626-1, Hawaii Revised Statutes, is amended by amending rule 803, subsection (b), to read as follows:

"(b) Other exceptions.

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Reserved.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made in the course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with rule 902(11) or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless the circumstances indicate lack of trustworthiness.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of the person's family by blood, adoption, or marriage, or among the person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of the person's personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.

(21) Reputation as to character. In proving character or a trait of character under rules 404 and 405, reputation of a person's character among the person's associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(24) Statement by a victim of domestic violence.

(A) A statement that purports to narrate, describe, report, or explain an incident of domestic violence, as defined in section 321-471, made by a victim of that domestic violence within a period of not more than twenty-four hours after the incident occurred and prior to the defendant being arrested regardless of the availability of the declarant, if the statement:

(i) Is non-testimonial and made during an ongoing emergency;

(ii) Was recorded, either electronically or in writing, or was made to a law enforcement officer as defined in section 139-1, corrections officer, youth correction officer, parole or probation officer, emergency medical services provider, or firefighter; and

(iii) Has sufficient indicia of reliability.

(B) In determining whether a statement has sufficient indicia of reliability, the court shall consider all circumstances surrounding the statement. In determining whether a statement has sufficient indicia of reliability, the court may consider:

(i) The personal knowledge of the declarant;

(ii) Whether the statement is corroborated by evidence other than statements that are subject to admission only pursuant to this paragraph;

(iii) The timing of the statement; and

(iv) Whether the statement was elicited by leading questions.

Recantation by a declarant is not a sufficient reason for denying admission of a statement under this paragraph in the absence of other factors indicating unreliability.

[~~(24)~~] (25) Other exceptions. A statement not specifically covered by any of the exceptions in this paragraph (b) but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:

(A) [~~the~~] The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts[,]; and

(B) [~~the~~] The general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	2610
THIRTIETH LEGISLATURE, 2020		H.D. 2
STATE OF HAWAII		S.D. 1