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The following extended quotation is taken from the case of Lau v.
Allied Wholesale, Inc., 82 Hawai'i 428 at 434-437, 922 P.2d 1041
at 1047-1050 (Hi. App. 1996). This legal authority demonstrates
that DVDs and video clips may be admissible because (1) these
videos are not an attempt to "recreate" the accident- but rather
(2) these videos depict various concepts and principles described
by the experts which were involved in the accident. An in camera
inspection before showing the video to the jury is usually
"Generally, the decision to admit various types of
demonstrative evidence is left to the discretion of the
trial court. Yap v. Controlled Parasailing of Honolulu,
Inc., 76 Hawai'i 248, 256, 873 P.2d 1321, 1329 (1994)
(citing Monlux v. General Motors Corp., 68 Haw. 358, 363,
714 P.2d 930, 933 (1986)). Videotapes depicting a particular
incident can be used as demonstrative evidence at trial. A.
Bowman, Hawai'i Rules of Evidence Manual § 901-2F(1) (1990);
see also Yap, supra, (depicting tests of a chair used for
parasailing); Loevsky v. Carter, 70 Haw. 419, 773 P.2d 1120
(1989) (depicting a series of motorcycle rides).
"The controlling authority in this jurisdiction regarding
the admissibility of videotape evidence is the Loevsky
case... A careful reading of Loevsky reveals that ... two
issues were intended to address separate questions of
admissibility. The first question is whether the videotape
depicts a reenactment or reconstruction of an incident. The
second relates to whether the tape shows tests or
experiments explaining a scientific principle. We take a
close look at the Loevsky case to clarify the analysis for
this particular evidentiary problem.
"i. Preview of the videotape
As indicated above, the admission of demonstrative evidence
is firmly lodged within the trial court's discretion.
Therefore, before going into the specifics of the
admissibility analysis, we reiterate the Hawai'i Supreme
Court's admonition in Loevsky for the trial court to preview
the contents of the videotape before ruling on its
admissibility. "Where the admissibility of the contents of a
visual recording is at issue in a judicial proceeding, we
direct that [Hawai'i] trial courts in the future undertake
their best efforts in attempting to view the subject visual
recording prior to ruling on its admissibility." Loevsky, 70
Haw. at 424 n. 6, 773 P.2d at 1123 n. 6 (emphases added).
Although the language used by the supreme court falls short
of making the preview an absolute requirement, we believe
that to be able to reach the correct decision on
admissibility the trial court must preview the contents of
any film or videotape offered in evidence.
"ii. Reconstruction of the incident
The Loevsky court indicates that when a videotape depicts an
experiment reconstructing a particular incident, the
videotape will only be admissible if there is a showing that
the essential elements of the depicted experiment are
substantially similar to the incident it purports to
reenact. Loevsky, 70 Haw. at 427, 773 P.2d at 1125. In other
words, for videotape evidence to be admissible to show a
reconstruction experiment, its contents must be
substantially similar to the actual incident... Although not
admissible as a reenactment, the videotape may still be
admissible for another purpose.
"iii. Explanation of scientific principles
The Hawai'i Supreme Court stated that:
'Films or videotapes of experiments by an accident
reconstructionist, physicist, engineer, or other witness
qualified as an expert on the cause of accidents, offered
merely to illustrate the principles used in forming an
opinion, do not require strict adherence to the facts and
are admissible in evidence, provided such films or tapes are
not misleading in and of themselves and provided it is made
clear that they are offered only as illustrations of the
principles involved.' Loevsky, 70 Haw. at 428, 773 P.2d at
1126 (quoting 3 C. Scott, Photographic Evidence § 1317 (2d
ed. Supp. 1987)) (emphasis and citations omitted). Thus, a
filmed or videotaped experiment is relevant as long as it is
offered to illustrate principles used in forming an opinion.
Its admissibility depends on whether 'it is misleading' and
not on whether its contents are 'substantially similar' to
the incident at issue. Id. The question of whether the
videotape's contents are 'misleading' essentially involves
the HRE Rule 403 inquiry regarding whether the videotape's
'probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
"The determination of whether a 'veiled attempt' at a
reenactment existed invites a comparison between the
contents of the videotape and the actual incident. The
comparison, however, focuses on the differences, instead of
the similarities, between the incident at issue and the
activity depicted on the videotape. The first step is to
identify the logical inferences that the visual presentation
creates. The trial court must then look at those aspects of
the videotape's contents that are different from the
incident at issue to determine whether the differences
present a flaw in the logical inference created by the
videotape presentation. It is this flawed reasoning that
jurors may overlook because of the 'drama of the filmed
event[,]' resulting in the jurors being misled. Id.
Admittedly, this type of determination is not easy.
'Scientific principles, when demonstrated in a fairly
abstract way, are quite unlikely to be confused with the
events on trial. The more troublesome cases, however, are
ones ... where some principles of some kind may be
demonstrated but in a fashion that looks very much like a
recreation of the event that gave rise to the trial.' Id. at
264 n. 5.'"
Another recent case which discusses this issue is the case of
Tabieros v. Clark Equipment Co., 85 Hawai'i 336, 944 P.2d 1279,
(Hawai'i 1997). In that case the Hawaii Supreme Court stated:
"The fact that the videotapes were not produced or offered
as reconstructions of Tabieros's accident renders them no
less potentially relevant... In this connection, we have
previously recognized that '[f]ilms or videotapes of
experiments by an ... engineer[ ] or other witness qualified
as an expert on the cause of accidents, offered merely to
illustrate the principles used in forming an opinion, do not
require strict adherence to the facts and are admissible in
evidence, provided such films or tapes are not misleading in
and of themselves and provided it is made clear that they
are offered only as illustrations of the principles
involved.' Loevsky, 70 Haw. at 428, 773 P.2d at 1126
(quoting 3 C. Scott, Photographic Evidence § 1317 (2d ed.
Supp.1987)) (emphasis in original). [FN27] [FN27 provides:
'The foregoing proposition was subject only to the caveat
that "it is essential that the jury be carefully instructed
as to the extent to which they can use and consider the
films or videotapes." Loevsky, 70 Haw. at 428, 773 P.2d at
1126 (citing 3 C. Scott, Photographic Evidence § 1317 (2d.
The Federal Court rule parallels the Hawaii rule on this issue.
In the case of Pandit v. American Honda Motor Co., Inc., 82 F.3d
376 (10th Cir. 1996), the Tenth Circuit stated:
"In Gilbert [Gilbert v. Cosco, 989 F.2d 399 (10th
Cir.1993)], we explained generally as follows:
"As a general rule, the proponent seeking to admit
out-of-court experiments into evidence must demonstrate a
'similarity of circumstances and conditions' between the
tests and the subject of litigation. Jackson v. Fletcher,
647 F.2d 1020, 1027 (10th Cir.1981) [cites omitted]. 'The
purpose of this rule is to prevent confusion of the jury.'
Robinson, 739 F.2d at 1484 (citing Jackson, 647 F.2d at
1027). A recognized exception to this rule exists when the
experiment merely illustrates principles used to form an
expert opinion. In such instances, strict adherence to the
facts is not required. Four Corners Helicopters, 979 F.2d at
1442 [Four Corners Helicopters v. Turbomeca, 979 F.2d 1434,
(10th Cir.1992)]; Robinson, 739 F.2d at 1484; Brandt, 638
F.2d at 212 . See also Nachtsheim v. Beech Aircraft Corp.,
847 F.2d 1261 (7th Cir.1988). Therefore, experiments which
purport to recreate an accident must be conducted under
conditions similar to that accident, while experiments which
demonstrate general principles used in forming an expert's
opinion are not required to adhere strictly to the
conditions of the accident. Furthermore, 'when experiments
do not simulate the actual events at issue, the jury should
be instructed that the evidence is admitted for a limited
purpose or purposes.'
Robinson, 739 F.2d at 1484 (citing Brandt, 638 F.2d at 212);
Bannister, 812 F.2d at 1270. 989 F.2d at 402..."
"As in Gilbert, the experiments [in this case] ultimately
were used to assist an expert in demonstrating principles
which formed the basis of his opinion. Kinderman testified
he performed the experiments merely to demonstrate the basic
principles underlying his opinion, and it is clear the court
admitted them for the same limited purpose."
82 F.3d at 381-382
Accord: Gladhill v. General Motors Corp., 743 F.2d 1049, (4th
Cir. (Md.) 1984) Randall v. Warnaco, Inc. 677 F.2d 1226 (8th Cir.
(N.D.) May 10, 1982), appeal after remand 712 F.2d 1275 (8th Cir.
1983). Hence it appears that the Federal Court rule on this
issue is the same as Hawaii's state court rule.
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A new case from the Hawaii Supreme Court recognizes personal injury claims for a viable fetus. This new approach seems consistent with a judicial approach to unborn children that life begins at viability. Castro v. Melchor, SCWC-12-0000753 (March 13, 2018).