INDICTMENT; PRELIMINARY HEARING; INFORMATION;

DOUBLE JEOPARDY; SELF-INCRIMINATION


Section 10.  No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary hearing held as provided by law or upon information in writing signed by a legal prosecuting officer under conditions and in accordance with procedures that the legislature may provide, except in cases arising in the armed forces when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy; nor shall any person be compelled in any criminal case to be a witness against oneself. [Ren and am Const Con 1978 and election Nov 7, 1978; am HB 150 (1981) and election Nov 2, 1982; am SB 2851 (2004) and election Nov 2, 2004]


Attorney General Opinions


  Cited in holding that a constitutional amendment is necessary to eliminate the function and scope of the grand jury.  Att. Gen. Op. 68-10.


Law Journals and Reviews


  Included Offenses in Hawaii Case Law and the Rights to Trial by Jury:  Coherence or Confusion.  II HBJ No. 13, at pg. 77.

  Fitness to Proceed:  Compassion or Prejudice?  II HBJ No. 13, at pg. 135.

  Administering Justice or Just Administration:  The Hawaii Supreme Court and the Intermediate Court of Appeals.  14 UH L. Rev. 271.

  State v. Lessary:  The Hawaii Supreme Court's Contribution to Double Jeopardy Law.   17 UH L. Rev. 269.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  State v. Rogan:  Racial Discrimination and Limits of the Color-blind Approach.  24 UH L. Rev. 821.


Case Notes


Indictment.

  Where indictment mechanism is employed, it must be through an unprejudiced grand jury.  53 H. 226, 491 P.2d 1089.

  Although an accused is guaranteed the right to presentment or indictment by a fair and impartial grand jury, the mere absence of an independent grand jury counsel does not establish that the due process rights of the accused were violated.  63 H. 412, 629 P.2d 1111; 63 H. 633, 633 P.2d 1113.

  Not violated by indictment which specifies all necessary elements of crime of burglary but does not allege specific crime intended to be committed.  66 H. 312, 660 P.2d 39.

  Count of complaint did not allege all of the essential elements of a §134-6(a) offense, thereby failing to ensure that district court had before it all facts necessary to find probable cause on that charge and violating defendant's rights under this section.  78 H. 66, 890 P.2d 303.

  Section 485-21 provides an essential element of offense charged, when a defendant is charged with a criminal violation of Uniform Securities Act; counts of indictment, which cited to §485-21, were insufficient, as counts did not include essential elements of offenses charged. 78 H. 373, 894 P.2d 70.

  Grand jury was presented with sufficient information to determine the existence of probable cause that material distributed to minor by defendant was pornographic for minors under §712-1210(7)(a).  82 H. 474, 923 P.2d 891.

  Sufficiency of for credit card offenses.  4 H. App. 52, 659 P.2d 83.


Self-incrimination.

  See also notes to U.S. Const. Amend. 5.

  State may go beyond federal requisites in protecting right under state constitution.  52 H. 527, 480 P.2d 148; 53 H. 254, 492 P.2d 657.

  Unless Miranda warnings are given, defendant's statement cannot be used either as evidence in prosecution's case or to impeach defendant's testimony.  53 H. 254, 492 P.2d 657.

  Miranda warnings apply only where person is being subjected to custodial interrogation.  58 H. 94, 564 P.2d 1271.

  Miranda fails to restrict State's use of voluntary statement not resulting from custodial interrogation.  58 H. 323, 568 P.2d 1200.

  Custodial interrogation for Miranda purposes.  59 H. 357, 581 P.2d 752.

  Use immunity conferred by statute is not adequate to supplant constitutional privilege.  62 H. 269, 614 P.2d 915.

  Compulsion to produce handwriting examples does not constitute unreasonable search and seizure nor does it violate self-incrimination clause.  62 H. 364, 616 P.2d 193.

  Default judgment for failure to make an accounting did not violate privilege where no evidence that information sought by accounting would incriminate defendant.  68 H. 608, 726 P.2d 254.

  Violated by introduction of evidence that defendant invoked right, where whether defendant had done so not at issue.  69 H. 68, 733 P.2d 690.

  Defendant did not waive right to counsel; second interrogation was not "same interrogation" for purposes of Miranda warnings.  69 H. 461, 748 P.2d 365.

  Drug testing does not infringe upon the privilege against self-incrimination.  72 H. 67, 806 P.2d 407.

  Defendant's statement to police, made while wearing blanket during custodial interrogation, was not coerced under totality of circumstances.  72 H. 327, 817 P.2d 1054.

  Constitutional right was not voluntarily waived by defendant's confession to theft where waiver was predicated on prior illegal search and State failed to meet burden of showing that taint of illegal search had been dissipated or that there was an independent source inducing defendant to waive right.  72 H. 505, 824 P.2d 833.

  Not violated where court requested defendant to identify self for purposes of identification in compliance with Hawaii Rules of Penal Procedure 43(a) (requiring presence of defendant at trial).  72 H. 573, 827 P.2d 648.

  Use at sentencing of statements previously obtained in violation of a defendant's privilege against self-incrimination violates that defendant's privilege against self-incrimination and right to due process.  74 H. 424, 848 P.2d 376.

  Defendant's mental and physical condition at time of defendant's interview with detective did not render defendant's statement involuntary; where defendant complained detective repeatedly exhorted defendant to tell the whole story and wheedled a confession out of defendant through misrepresentations, detective's tactics did not amount to mental or psychological coercion, rendering defendant's consequent statement involuntary and inadmissible.  74 H. 479, 849 P.2d 58.

  Circuit court's error in failing to expressly state findings of fact and conclusions of law with respect to alleged violation of appellant's right against self-incrimination was harmless error; reversal of appellant's original conviction was not based on prosecution's use of illegally obtained confessions and appellant had never alleged that appellant was in any way compelled to testify at first trial.  76 H. 237, 873 P.2d 775.

  When a suspect makes an ambiguous or equivocal request for counsel during custodial interrogation, the police must either cease all questioning or seek non-substantive clarification of the suspect's request, and if, upon clarification, the defendant unambiguously and unequivocally invokes right to counsel, all substantive questioning must cease until counsel is present.  77 H. 17, 881 P.2d 504.

  Coercive conduct of a private person may be sufficient to render a confession inadmissible based on article I, §5 and this section of Hawai'i constitution.  77 H. 51, 881 P.2d 538.

  Defendants were induced to make inculpatory statements and to consent to search of their hotel room in violation of article I, §§7 and [10] of Hawai'i constitution.  78 H. 433, 896 P.2d 889.

  To protect the right to testify under Hawai'i constitution, trial courts must advise criminal defendants of their right to testify and must obtain on-the-record waiver of that right in every case in which the defendant does not testify.  79 H. 226, 900 P.2d 1293.

  Court properly accepted witness' claim of privilege where witness' testimony in proceeding might have had some tendency to provide a "link in the chain" of evidence against witness in another killing.  80 H. 307, 909 P.2d 1122.

  Right to remain silent waived where defendant, after being properly given Miranda warnings and additionally being told that everything defendant said was "on the record", initiated dialogue with officer.  80 H. 439, 911 P.2d 74.

  "Public safety" exception to Miranda not formally adopted by Hawaii supreme court to apply to this section and was inapplicable to case; thus statements by defendant subjected to custodial interrogation without Miranda warnings inadmissible in evidence.  87 H. 71, 951 P.2d 934.

  Where Miranda warnings not first given to defendant in custody, defendant's statements to officer regarding device found in defendant's truck and device's purpose were unlawfully obtained and thus inadmissible.  87 H. 71, 951 P.2d 934.

  A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard.  88 H. 407, 967 P.2d 239.

  Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case.  88 H. 407, 967 P.2d 239.

  Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion.  88 H. 407, 967 P.2d 239.

  Where no evidence that defendant felt compelled to give statement to police because defendant feared defendant would be beaten, felt dizzy and in pain, and had not slept in four days prior to defendant's arrest, trial court erred in concluding statement was not voluntarily and freely given.  92 H. 135, 988 P.2d 200.

  Although lawfully "seized" within the meaning of article I, §7 of the Hawaii constitution, defendant was not "in custody" at the time defendant responded to officer's question regarding defendant's age; thus officer was not required to give Miranda warnings prior to asking the question and trial court improperly suppressed defendant's answer.  94 H. 207, 10 P.3d 728.

  When an officer lawfully "seizes" a person in order to conduct an investigative stop, the officer is not required to inform that person of the person's Miranda rights before posing questions that are reasonably designed to confirm or dispel--as briefly as possible and without any coercive connotation by either word or conduct--the officer's reasonable suspicion that criminal activity is afoot. 94 H. 207, 10 P.3d 728.

  A person is "in custody" for purposes of this section if an objective assessment of the totality of the circumstances reflects either that (1) the person has become impliedly accused of committing a crime due to the sustained and coercive nature of police questions or (2) the point of arrest has arrived because either probable cause to arrest has developed or the police have subjected the person to an unlawful "de facto" arrest without probable cause to do so. 97 H. 107, 34 P.3d 1006.

  Officer subjected defendant to "interrogation" where officer admitted that officer was aware that defendant's residential address was relevant to establishing whether defendant constructively possessed any drug contraband that might be found anywhere in the residence such that officer reasonably knew or should have known that asking defendant defendant's residential address, after discovering defendant, early in the morning, in bed in the residence, was likely to yield an incriminating response.  97 H. 107, 34 P.3d 1006.

  Where "booking" officer was presumably aware of the concept of constructive possession, search warrant authorized a search for drugs, defendant was found in the bedroom, and raid was early in the morning, officer should have known that asking defendant for defendant's address was likely to elicit an incriminating response; "booking" officer thus obtained defendant's address as a result of "custodial interrogation" without Miranda warnings and waiver and address was thus  inadmissible at trial.  97 H. 107, 34 P.3d 1006.

  Where detective was fully aware that defendant's address was relevant to prosecuting defendant at the time that detective requested defendant provide defendant's residential address on a form indicating that defendant understood defendant's constitutional rights, detective "interrogated" defendant despite defendant's invocation of defendant's right to remain silent.  97 H. 107, 34 P.3d 1006.

  Where totality of the circumstances reflected that an innocent person in defendant's shoes could reasonably have believed that he or she was not free to go and was being taken into custody indefinitely, the point of "de facto" arrest had arrived and, for purposes of this section, defendant was "in custody"; officer thus subjected defendant to custodial interrogation without Miranda warnings rendering defendant's responses inadmissible at trial.  97 H. 107, 34 P.3d 1006.

  Trial court violated defendant's constitutional privilege against self-incrimination by imposing an enhanced sentence pursuant to §706-662(4) based solely on defendant's refusal to admit defendant's guilt with respect to the offenses of which defendant was convicted by the jury.  103 H. 315, 82 P.3d 401.

  Where defendant's statements were not the product of "interrogation", but, rather, were "volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent", defendant's constitutional rights against self-incrimination and due process of law not violated.  104 H. 224, 87 P.3d 893.

  Although refusal to sign a waiver form or a written statement, was some evidence of the absence of waiver, it was outweighed by affirmative conduct indicative of a knowingly and intelligently made decision not to remain silent and to waive the right to counsel, and circumstances evinced that defendant's undisputed willingness to speak constituted an explicit, affirmative act evidencing a knowing, intelligent, and voluntary waiver; prosecution thus satisfied its burden of proving such waiver.  105 H. 131, 94 P.3d 1275.

  Defendant failed to sustain burden of proving custody, where totality of the circumstances failed to reflect either that (1) defendant had become impliedly accused of committing a crime because officer's questions became sustained and coercive, such that they were no longer reasonably designed briefly to confirm or dispel their reasonable suspicion; or (2) the point of arrest had arrived because defendant was subjected to unlawful de facto arrest without probable cause to do so .  105 H. 131, 94 P.3d 1275.

  Defendant was not in custody for purposes of triggering Miranda protections where defendant voluntarily approached officers to talk about vehicle, defendant's liberty of movement was not curtailed in any significant manner, no force was used during the encounter, defendant was not moved to a different location or physically restrained, and neither officer displayed a show of authority beyond that inherent in the mere presence of a police officer.  105 H. 131, 94 P.3d 1275.

  The presence of an attorney does not constitute an implied waiver of the right to remain silent; defense counsel's presence was not germane to the personal waiver envisioned under this section; a defendant must be advised of his or her right to remain silent even if there is an attorney present; thus, the police had an obligation to advise defendant that defendant had the right to remain silent.  109 H. 482, 128 P.3d 795.

  Where detectives met with defendant and counsel in an interview room at the police station for the purpose of interviewing defendant and obtaining defendant's statement for approximately twenty-two minutes without providing defendant with Miranda warnings, this pre-interview constituted interrogation and Miranda warnings were required prior to the pre-interview.  109 H. 482, 128 P.3d 795.

  Prosecutor's statements not improper comment upon defendant's failure to testify.  3 H. App. 107, 643 P.2d 807.

  Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Because defendant's refusal to take the field sobriety test was neither testimonial nor compelled, the Fifth Amendment and this section were not offended.  94 H. 17 (App.), 7 P.3d 193.

  Where detective made clear to defendant that "in accordance with the mandate of Miranda, the right to counsel may be invoked at any point, and when invoked, all substantive questioning must cease unless and until counsel is provided," trial court did not err in denying defendant's motion to suppress statement defendant made to detective.  101 H. 97 (App.), 63 P.3d 405.

  Where defendant was properly informed of defendant's Miranda rights against self-incrimination, and expressly waived this right and the right to counsel prior to being examined and prior to giving the suppressed statements, defendant's rights not violated.  101 H. 344 (App.), 68 P.3d 618.

  Defendant's right violated where, based on the specific facts of the case, trial court abused its discretion in directing, over defendant's objection, that defendant testify before defendant's other defense witness; error not harmless beyond a reasonable doubt as there was a reasonable possibility that trial court's error contributed to defendant's conviction.  102 H. 369 (App.), 76 P.3d 612.


Former jeopardy.

  See also notes to U.S. Const. Amend. 5.

  Retrial not barred though prosecutor's comments caused mistrial, where no showing that prosecution intended to provoke mistrial.  69 H. 44, 731 P.2d 1261.

  A nolle prosequi entered over the defendant's objection, after jeopardy has attached, terminates the prosecution and bars any subsequent trial for the same offense.  69 H. 618, 753 P.2d 806.

  Jeopardy attached where defendant had no notice or opportunity to testify on nolle prosequi motion.  71 H. 260, 787 P.2d 692.

  No double jeopardy where defendant was acquitted of one of the counts.  72 H. 56, 806 P.2d 402.

  Jeopardy attached for criminal charges in circuit court when defendant was sentenced for criminal contempt in family court where charges were based on same conduct supporting contempt conviction.  72 H. 164, 811 P.2d 815, cert. den. 112 S.Ct. 194.

  Subsequent retrial of murder conviction reversed on appeal not barred by double jeopardy clause where lower court acted outside scope of its mandate in dismissing indictment and defendant was acquitted of another charge involving proof of conduct that was neither an element of the murder charge of which defendant was convicted nor conduct on which liability was found.  72 H. 480, 825 P.2d 64.

  Retrial not barred by double jeopardy clause where there was no prosecutorial intent to goad defendant into moving for mistrial.  73 H. 289, 834 P.2d 275.

  Reprosecution barred because defendant was subjected to former jeopardy in first trial and trial court erroneously declared mistrial without defendant's consent or a showing of manifest necessity.  75 H. 195, 857 P.2d 585.

  Hawaii constitution provides greater protection against multiple prosecutions than U.S. Constitution; requires application of "same conduct" test.  75 H. 446, 865 P.2d 150.

  Circuit court not clearly erroneous in finding that prosecutor did not intentionally provoke defendants into moving for mistrial; thus, court correctly concluded retrial not prohibited by double jeopardy.  77 H. 351, 884 P.2d 729.

  Appellant's new sentence did not contravene right against double jeopardy even if it potentially affected appellant's future eligibility for parole.  79 H. 281, 901 P.2d 481.

  Reprosecution not barred by double jeopardy where trial court's declaration of mistrial supported by manifest necessity; court sufficiently considered alternatives available.  79 H. 461, 903 P.2d 1282.

  As §286-261(d) did not require defendant to submit to needs assessment nor undergo any treatment for alcohol dependence, application of that section with DUI conviction under §291-4 not "multiple punishments for same offense".  80 H. 8, 904 P.2d 893.

  Remanding case for retrial on lesser included offenses following appellate determination that insufficient evidence was presented at trial to support conviction of greater offense did not violate clause.  80 H. 126, 906 P.2d 612.

  Defendant not subjected to multiple punishments as a result of administrative driver's license revocation under §286-261 and DUI conviction under §291-4 as administrative revocation non-punitive and purely remedial in nature.  81 H. 226, 915 P.2d 700.

  Because counseling and assessment, as consequence of administrative driver's license revocation under §286-261(d), not punitive but purely remedial, subsequent DUI conviction did not expose defendant to multiple "punishments"; defendant's motion to dismiss on double jeopardy grounds thus properly denied.  82 H. 446, 923 P.2d 388.

  Denial of defendant's motion to dismiss on double jeopardy grounds, premised on protection against multiple punishments for same offense, not effectively unreviewable on appeal and thus not immediately appealable under collateral order exception.  82 H. 446, 923 P.2d 388.

  Jeopardy did not attach where defendant failed to file a timely claim for forfeited property under §712A-10(4).  83 H. 141, 925 P.2d 311.

  Where defendant's conviction on non-existent attempted reckless manslaughter charge vacated, remand for retrial on original charge of attempted first degree murder unconstitutional and also violation of §701-110(1).  83 H. 335, 926 P.2d 1258.

  Section bars retrial for a charge when the government's deliberate trial strategy, which was completely incompatible with another approach it could have pursued, but expressly chose not to, accompanied the termination of the first trial without the jury passing upon that charge.  85 H. 128, 938 P.2d 559.

  Not violated by prosecution's appeal from judgment of acquittal following jury's verdict of guilty pursuant to §641-13(9).  87 H. 108, 952 P.2d 865.

  As conviction for manslaughter due to an extreme mental or emotional disturbance under §707-702(2) is deemed an acquittal of murder, double jeopardy barred defendant's reprosecution for second degree murder under §707-701.5.  88 H. 356, 966 P.2d 1082.

  Prosecution not barred from reprosecuting defendant for offense of reckless manslaughter under §707-702(1)(a) as reckless manslaughter is a lesser included offense of murder and remanding a case for retrial on lesser included offenses not barred by double jeopardy.  88 H. 356, 966 P.2d 1082.

  Where, upon defendant's own motion, place to keep firearms count under §134-6 was dismissed on a basis unrelated to factual guilt or innocence, retrial on the place to keep firearms charge not barred by double jeopardy clauses of U.S. and Hawaii Constitutions.  88 H. 389, 967 P.2d 221.

  As family court's "judgment of acquittal" was, in fact, an acquittal "in substance as well as form", clause violated where family court granted prosecution's motion for reconsideration and denied defendant's motion to dismiss complaint.  91 H. 206, 982 P.2d 340.

  Reprosecution of a defendant after a mistrial or reversal on appeal as a result of prosecutorial misconduct is barred where the prosecutorial misconduct is so egregious that, from an objective standpoint, it clearly denied a defendant his or her right to a fair trial.  91 H. 405, 984 P.2d 1231.

  Given that any improper remarks in opening statement, closing and rebuttal arguments by prosecutor were harmless beyond a reasonable doubt, and their cumulative effect was similarly harmless and did not deprive defendant of a fair trial, prosecutor's misconduct did not warrant reversal of any of defendant's convictions and did not implicate the double jeopardy clauses of either the U.S. or Hawaii Constitutions.  95 H. 465, 24 P.3d 661.

  Trial court abused its discretion in concluding there was manifest necessity for mistrial as circumstances creating apparent need for mistrial did not make it impossible for trial to proceed; in absence of manifest necessity, defendant should have been allowed to choose between continuing with trial or consenting to a mistrial; defendant did not "consent" to the mistrial by moving for dismissal with prejudice; retrial thus barred by double jeopardy.  97 H. 238, 35 P.3d 755.

  Where, by implying that defendant had information defendant was withholding from jury, prosecution intended jury to note that defendant did not testify, no curative court instruction was given to disregard improper prosecution comments, and evidence did not clearly demonstrate defendant's guilt, prosecution improperly commented on defendant's failure to testify; defendant was thus entitled to a new trial, but prosecutorial misconduct was not so egregious that double jeopardy should attach to prevent retrial.  102 H. 504, 78 P.3d 317.

  The double jeopardy clause does not constrain the legislature from intentionally imposing multiple punishments upon a defendant for separate offenses arising out of the same conduct; the protections afforded by the U.S. Constitution, as set forth in the Blockburger "same elements" test, adequately protect against double jeopardy in "multiple punishments" cases.  107 H. 469, 115 P.3d 648.

  The trial court did not violate this clause by convicting defendant of attempted murder in the second degree under §707-701.5, and place to keep, and use of a firearm under §134-6, as each of the offenses contains elements which the others do not.  107 H. 469, 115 P.3d 648.

  Where legislature intended to punish defendant under both §§134-6(a) and 706-660.1 for use of a firearm in shooting victim, the double jeopardy clause was not violated when the trial court imposed a mandatory minimum term sentence under §706-660.1 for attempted second  degree murder when defendant was also convicted of, and sentenced for, use of a firearm in the commission of the separate felony of attempted second degree murder.  107 H. 469, 115 P.3d 648.

  Where all of the evidence was discovered subsequent to and as a result of the illegal entry and was thus inadmissible, it should have not been relied upon in measuring the sufficiency of the evidence supporting the convictions; because there wasn't any other admissible evidence against defendant, the evidence was insufficient to support defendant's convictions; thus, jeopardy attached and defendant may not be retried.  108 H. 436, 121 P.3d 901.

  If guilty plea is validly set aside, subsequent trial does not violate prohibition against double jeopardy.  4 H. App. 566, 670 P.2d 834.

  No prohibition from charging a defendant with having committed one crime in two different ways.  8 H. App. 506, 810 P.2d 672.

  No double jeopardy for convictions under §§707-734 and 712-1217.  8 H. App. 535, 813 P.2d 335.

  Retrial barred where reversal of DUI conviction based on improperly admitted test result from breath-testing instrument was for insufficiency of evidence, not trial error.  9 H. App. 130, 828 P.2d 813.

  Retrial not barred where defendant moved for dismissal and was successful in having the charge dismissed before a determination was made of whether defendant was guilty or not guilty and where defendant did not make any showing that prosecutor intended to provoke a mistrial.  10 H. App. 491, 878 P.2d 739.

  Clause violated where defendant, upon being resentenced for same offense, not given credit for imprisonment already served and fines already paid.  82 H. 83 (App.), 919 P.2d 995.

  Prosecutor's reference to defendants' race in opening statement was not the "exceptional circumstance" in which prosecutorial misconduct rose to the level of egregiousness that bars reprosecution; thus, case vacated and remanded.  98 H. 358 (App.), 48 P.3d 605.






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