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State v. Coffee2/12/2004
ds that the court's taking judicial notice of the district court judge's prior decision in State v. Danny Wong was improper under Hawaii Rules of Evidence (HRE) Rules 201, [FN7] 702, [FN8] **1007 *198 702.1, [FN9] 703, [FN10] and 705. [FN11]
FN5. Use of the term "expert" has been noted by other courts as presumptuous and somewhat invasive into the court's province of determining just who are experts. Currently, the term "expert" is being replaced with the term "examiner." See United States v. Everett, 972 F.Supp. 1313, 1316 n. 2 (D.Nev.1997).
FN6. The Drug Recognition Evaluation Program was developed by the Los Angeles Police Department in the 1970's and early 1980's to train officers to recognize the behavioral and physiological symptoms associated with the major classes of psychoactive drugs. The program consists of a 12-step standardized evaluation conducted by a Drug Recognition Expert (DRE) and a toxicological analysis of a biological specimen to confirm or rebut the
DRE's conclusions. Everett, 972 F.Supp. at 1316-17. However, the detection effort and the identification of which class of drugs are causing the impairment are further complicated because some drugs have a quicker onset of effect than others, some have longer duration, and some remain in the body system long after the impairing effects have subsided. Id. at 1317.
FN7. Hawaii Rules of Evidence (HRE) Rule 201 provides in relevant part:
Rule 201 Judicial notice of adjudicative facts. (a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
FN8. HRE Rule 702 provides:
Rule 702 Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.
FN9. HRE Rule 702.1 provides:
Rule 702.1 Cross-examination of experts. (a) General. A witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be cross-examined as to (1) the witness' qualifications, (2) the subject to which the witness' expert
testimony relates, and (3) the matter upon which the witness' opinion is based and the reasons for the witness' opinion.
(b) Texts and treatises. If a witness testifying as an expert testifies in the form of an opinion, the witness may be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication only if:
(1) The wit
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