HRS 0626-0001-1102 ANNOTATIONS

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 §§635-15, 635-17 (1976) (repealed 1980) (originally enacted as L 1892, c 56, §1; am L 1932 2d, c 24, §1; am L 1972, c 89, §2B(e); and L 1932 2d, c 24, §2).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).

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.