RIGHTS OF ACCUSED


Section 14.  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against the accused, provided that the legislature may provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim's physician, psychologist, counselor or licensed mental health professional; to have compulsory process for obtaining witnesses in the accused's favor; and to have the assistance of counsel for the accused's defense.  Juries, where the crime charged is serious, shall consist of twelve persons.  The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 2846 (2004) and election Nov 2, 2004]


Cross References


  Jury of the "district," see §806-17.


Attorney General Opinions


  Constitutional amendment eliminating jury trial for serious criminal cases will not be consistent with the due process clause of the 14th Amendment.  Att. Gen. Op. 68-10.

  The jury referred to is a jury of twelve.  Att. Gen. Op. 68-10.

  Last sentence took effect upon ratification of proposal by voters on election day and not upon certification of result by Lieutenant Governor.  Att. Gen. Op. 68-31.

  Proposed legislation did not conflict with mandates of this section with regard to permitting a jury of six persons in cases involving "non-serious crimes".  Att. Gen. Op. 97-2.


Law Journals and Reviews


  Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments.  8 HBJ 109.

  The Hawaii Supreme Court's Criminal Law Decisions 1997-1998:  Fair Use of the Doctrine of Plain Error?  II HBJ No. 13, at pg. 49.

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

  State v. Smith:  The Standard of Effectiveness of Counsel in Hawaii Following Strickland v. Washington.  9 UH L. Rev. 371.

  State v. Furutani:  Hawai'i's Protection of a Defendant's Right to a Fair Trial--Verdict Impeachment Made Easy.   17 UH L. Rev. 307.

  State v. Lindsey:  "Petty" Offenses and the Right to Jury Trial under the Hawai'i Constitution.  17 UH L. Rev. 331.

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

  State v. Sinagoga:  The Collateral Use of Uncounseled Misdemeanor Convictions in Hawai'i.  19 UH L. Rev. 813.


Case Notes


  Section modeled after the 6th Amendment of the federal constitution and was intended to incorporate it and to give the State the benefit of federal decisions  construing the same language.  47 H. 361, 385, 389 P.2d 439.


Compulsory process.

  Defendant only afforded right to compel attendance and testimony of witnesses who can give relevant and beneficial testimony for defense.  64 H. 217, 638 P.2d 324; 67 H. 59, 677 P.2d 465.

  Evidence did not show that testimony would have been relevant and beneficial to defense.  64 H. 217, 638 P.2d 324.

  Violated by prohibition of witnesses' description testimony, though their identification testimony suppressed.  67 H. 123, 680 P.2d 253.

  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.

  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.

  Defendant's right to testify violated where trial court failed to establish on the record that defendant's decision not to testify was made knowingly and voluntarily.  91 H. 275, 982 P.2d 904.

  The Tachibana colloquy to advise a defendant that he or she has a right not to testify is required only in cases in which the defendant does not testify; it is not required in a situation where the defendant has decided to testify.  94 H. 292, 12 P.3d 1233.

  To minimize the scope of any post-conviction claim by a testifying defendant that he or she was not aware of his or her right to testify, trial court must give prior-to-start-of-trial advisement informing defendant of his or her right to testify or not to testify, and that if defendant has not testified by the end of trial, the court will briefly question defendant to ensure that the decision not to testify was defendant's own decision.  94 H. 292, 12 P.3d 1233.

  Where witness appeared, exercised witness' right to remain silent, and defendant failed to offer proof beyond conjecture that witness' testimony would be helpful to defendant, defendant's right not violated.  100 H. 210, 58 P.3d 1257.

  Not violated by trial court's refusal to allow further examination of witness.  5 H. App. 127, 681 P.2d 573.

  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.

  Trial court's failure to obtain on-the-record waivers from co-defendants of their right to testify was not harmless beyond a reasonable doubt where, if co-defendants' testimony had been added to version of events, jury's decision may have been different.  92 H. 148 (App.), 988 P.2d 667.

  Where trial court violated defendant's right to testify by failing to advise defendant of that right and obtain a waiver on the record, and it could not be said beyond a reasonable doubt that if defendant's testimony had been added to the eyewitness' version of the incident, the verdict would not have been different, trial court's error not harmless beyond a reasonable doubt.  93 H. 513 (App.), 6 P.3d 385.

  As right to testify is personal to defendant, to be relinquished only by defendant, court erred in failing to obtain waiver of right directly from defendant; defense counsel's remark that "he has elected not to testify" did not constitute a voluntary and knowing waiver by defendant of that right. 94 H. 271 (App.), 12 P.3d 371.

  Where decisive issue in case was credibility, and there was extensive contradiction between State's witnesses and defendant's witness, a reasonable possibility existed that violation of defendant's right to testify contributed to defendant's conviction; court's error was thus not harmless beyond a reasonable doubt and defendant's conviction and sentence had to be vacated. 94 H. 271 (App.), 12 P.3d 371.

  Failure to advise defendant who testified that defendant had a right not to testify during trial was harmless error, rather than plain error.  94 H. 309 (App.), 12 P.3d 1250.


Confrontation of witnesses.

  See also notes to U.S. Const. Amend. 6.

  Compulsory process provision construed; witness violating order excluding witnesses from courtroom should still be allowed to testify to guarantee to accused his constitutional right.  51 H. 581, 465 P.2d 560.

  No violation where the State made a good faith effort to locate witness.  70 H. 343, 771 P.2d 509.

  No violation where witness is unavailable and former testimony is used.  71 H. 274, 789 P.2d 497.

  Lower court's failure to issue bench warrant for complaining witness in family abuse case, and denial of motion for dismissal without prejudice, violated appellant's right to confrontation.  72 H. 469, 822 P.2d 519.

  Criminal defendant's right to be present at all stages of trial cannot be waived by counsel.  73 H. 97, 828 P.2d 280.

  Error for trial court to refuse to permit a defense witness to testify as penalty for violating witness exclusion rule.  73 H. 331, 832 P.2d 269.

  Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony.  74 H. 141, 838 P.2d 1374.

  Appellant's right violated; trial court improperly admitted witness' testimony under excited utterance exception to hearsay rule where prosecution failed to issue trial subpoena to declarant and failed to make showing of declarant's unavailability.  74 H. 343, 845 P.2d 547.

  Admission of co-defendant's testimony concerning incriminatory out-of-court statements made against defendant did not violate defendant's rights to confront defendant's accuser under the U.S. or Hawai'i Constitutions.  76 H. 148, 871 P.2d 782.

  Circuit court's limitation of appellant's cross-examination of witness did not violate appellant's right to confront witnesses against appellant where appellant adequately raised issue of witness' possible bias.  78 H. 383, 894 P.2d 80.

  Defendant's right of confrontation under this section was violated by the admission of complainant's videotaped interview in lieu of direct examination.  79 H. 128, 900 P.2d 135.

  Prior to introduction of videotaped interview, cross-examination of complainant sex assault victim regarding complainant's conversation with police officer satisfied defendant's right of confrontation.  80 H. 107, 905 P.2d 613.

  Not violated by admission of declarant's former testimony under HRE rule 804(b)(1) where prosecution established declarant's unavailability, that it had made good faith efforts to secure declarant's presence, and reliability of statement was shown.  82 H. 202, 921 P.2d 122.

  Abuse of discretion where trial court excluded evidence of complainant's prior conviction, by prohibiting cross-examination of complainant, from which jury could have inferred that complainant had a motive to bring false charges against defendant and give false testimony at trial.  83 H. 109, 924 P.2d 1215.

  Right violated as prosecution witness not "unavailable" under HRE rule 804(a)(5); prosecution's good faith efforts require a search equally as vigorous as that which it would undertake to find a critical witness if it had no prior testimony to rely upon in the event of unavailability.  83 H. 267, 925 P.2d 1091.

  Right not violated where trial court allowed defense adequate opportunity to raise issue of witness' possible bias while imposing modest restriction on defense's cross-examination of witness to avoid risk of prejudicing jury.  83 H. 335, 926 P.2d 1258.

  Admission into evidence of witness' grand jury testimony under HRE rule 802.1(4), past recollection recorded hearsay exception, did not violate defendant's right where witness' testimony was supported by numerous guarantees of trustworthiness, and defendant was able to cross-examine witness on witness' subsequent failure to remember alleged incident.  92 H. 61, 987 P.2d 959.

  Admission into evidence of witness' handwritten statement on the bottom of an identification form, under HRE rule 802.1(4), past recollection recorded hearsay exception, did not violate defendant's right where witness' statement was supported by numerous guarantees of trustworthiness.  92 H. 61, 987 P.2d 959.

  Right not violated by trial court's imposition of certain restrictions on scope of defense counsel's cross-examination  where (1) there was no reasonable possibility that the cross-examination would have changed the outcome of defendant's trial; (2) witness' second forgery conviction on recross examination was beyond the scope of redirect examination; and (3) defense counsel's inquiring into the location of a map given to witness by defendant was not relevant.  99 H. 390, 56 P.3d 692.

  When a statutory privilege interferes with a defendant's constitutional right to cross-examine, then, upon a sufficient showing by the defendant, the witness' statutory privilege must, in the interest of the truth-seeking process, bow to the defendant's constitutional rights.  101 H. 172, 65 P.3d 119.

  As there is no exception under HRE rule 804(b)(8) for pending or anticipated litigation, such that statements by victim-wife would have been admissible even if a divorce proceeding had actually been underway, trial court did not abuse discretion in determining hearsay statements were trustworthy; however, trial court abused discretion in admitting statements in violation of defendant's constitutional right to confront and cross-examine adverse witnesses.  103 H. 89, 79 P.3d 1263.

  Where trial court prohibited all inquiry into the complainant's alleged motive or bias for faking injury, petitioner's right of confrontation under the Sixth Amendment and this section was violated; appellate court erred and case remanded for new trial.  106 H. 116, 102 P.3d 360.

  Not violated in DUI case by admission into evidence of log showing breath-testing instrument had been tested for accuracy.  9 H. App. 130, 828 P.2d 813.

  Admission into evidence of redacted confessions of defendants-spouses violated defendants-spouses' confrontational rights.  10 H. App. 43, 861 P.2d 24.

  Defendant's confrontation rights were not violated by admission of "hearsay" statements.  79 H. 175 (App.), 900 P.2d 172.

  Defendant entitled to elicit evidence of complainant's past sexual behavior, not to attack complainant's character, but to determine whether complainant was mentally defective and whether defendant knew that complainant was mentally defective.  81 H. 447 (App.), 918 P.2d 254.

  Not violated by complainant's failure to testify at trial because complainant's statements were not hearsay and actual truth or falsity of statements were irrelevant to defendant's conviction for violating warning citation under §709-906.  82 H. 381 (App.), 922 P.2d 994.

  Clause not violated where questions defendant wanted to ask police officer regarding officer's "motive" and "knowledge of how much cocaine a drug addict would consume" were not relevant to any issue in case.  82 H. 499 (App.), 923 P.2d 916.

  Trial court erred by not allowing defendant to introduce evidence of, and cross-examine victim as to victim's drug use and addiction at or near the time of the incident to the extent that it affected victim's perception or recollection of the alleged event, and defendant was not required to present expert testimony to that effect.  108 H. 102 (App.), 117 P.3d 834.

  Where, even in the absence of a plea agreement, witness' pending sentencing in two other criminal matters were relevant and probative of a potential bias or motive for testifying in favor of the State, trial court erred in denying defendant's motion in limine with respect to evidence of witness' pending sentencing, and error was not harmful beyond a reasonable doubt as State's case was based on jury finding that witness' testimony was credible and believing the witness over the defendant.  108 H. 102 (App.), 117 P.3d 834.


Right to counsel.

  See also notes to U.S. Const. Amend. 6.

  Applied.  56 H. 23, 525 P.2d 1108.

  There is no right to counsel at a post-arrest photographic display.  59 H. 167, 578 P.2d 236.

  Effective assistance of counsel.  64 H. 62, 636 P.2d 742.

  Effective assistance of counsel denied where defense counsel caused introduction of highly prejudicial and otherwise inadmissible evidence.  68 H. 304, 712 P.2d 496.

  Violated where questioning continued after right invoked; use of defendant's unsuppressed statements not harmless beyond a reasonable doubt.  69 H. 51, 731 P.2d 1264.

  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.

  Claim that failure to call expert witnesses to rebut State's DNA profiling evidence introduced at motion in limine constituted ineffective assistance of counsel was meritless.  73 H. 130, 828 P.2d 1274.

  Counsel was not ineffective in failing to raise contention that defendant had not waived right to be present at trial where defendant had voluntarily absented oneself after trial had begun.  73 H. 147, 828 P.2d 281.

  Defendant has burden to establish ineffective assistance of counsel and meet two-part test; under Hawaii Constitution, defendant afforded greater protection of right to effective assistance of counsel than under U.S. Constitution.  74 H. 54, 837 P.2d 1298.

  No denial of effective assistance of counsel where counsel waived defendant's presence at conference settling jury instructions, withdrew insanity defense, and failed to object to examiner's testimony.  74 H. 141, 838 P.2d 1374.

  Where petitioner's convictions on counts I (attempted first degree murder), II (second degree murder), and III (attempted second degree murder) violated §701-109(1)(c)'s clear prohibition against inconsistent factual findings, the failure to raise this issue, both at trial and on appeal, resulted in withdrawal of not only a potentially meritorious defense, but a defense that would have altered the outcome.  74 H. 442, 848 P.2d 966.

  Post-conviction ineffective assistance of counsel HRPP rule 40 petition not prejudiced where defendant alleges facts that, if proven, would entitle defendant to relief and claim is not patently frivolous and without trace of support in the record.  75 H. 419, 864 P.2d 583.

  Trial counsel's alleged errors did not constitute ineffective assistance of counsel where defendant argued, inter alia, that trial counsel should have obtained expert analysis of white powder defendant provided to undercover police officer to determine how much "pure" cocaine it contained; rejection of defendant's claim that trial counsel's failure to interview and subpoena defendant's girlfriend amounted to ineffective assistance was without prejudice to a subsequent HRPP rule 40 petition.  77 H. 72, 881 P.2d 1218.

  Knowing, intelligent and voluntary waiver of right to counsel where, inter alia, defendant persistently refused legal assistance despite court's repeated invitation and amply demonstrated capacity to proceed pro se.  81 H. 198, 915 P.2d 672.

  No ineffective assistance of counsel where defense counsel's failure to object to prosecution witnesses' testimony did not result in the withdrawal or substantial impairment of a meritorious defense.  81 H. 293, 916 P.2d 703.

  Where attorney-client privilege was not applicable to communications because they were not "confidential" but "voluntarily disclosed" in known presence of third party who was neither co-defendant nor representative of the client or of the lawyer and in a place accessible to the general public, right to effective assistance not violated.  84 H. 229, 933 P.2d 66.

  A defense counsel's representation is constitutionally ineffective under the Hawaii constitution if:  (1) a relationship giving rise to a conflict of interest existed between defense counsel and his/her clients; and (2) either the relationship adversely affected defense counsel's performance, or the client did not consent to the relationship.  88 H. 19, 960 P.2d 1227.

  No ineffective assistance of counsel based on various grounds, including conflict of interest and failure of counsel to: file pre-trial motion to dismiss indictment based on insufficient evidence; investigate and obtain testimony of witnesses; call certain witnesses; object to admission of certain evidence; and challenge selection of jurors or composition of jury.  88 H. 19, 960 P.2d 1227.

  Where defendant could have challenged the validity of the search warrant if given a range of dates of the observations by prosecution's confidential informant and defendant's attorney could file the appropriate pre-trial motions and prepare for trial without the exact dates, right to effective assistance of counsel not violated by defendant not knowing the exact dates of the observations.  88 H. 396, 967 P.2d 228.

  Right to assistance of counsel and to present a defense not violated by trial court's refusal to allow defendant to present oral argument on motion for judgment of acquittal; no constitutional right to argue a motion for judgment of acquittal.  91 H. 288, 983 P.2d 189.

  An attorney "employed and paid by the county" for the benefit of a police officer, to defend the officer in a criminal case pursuant to §52D-8 and in related civil cases, in which the county has asserted claims adverse to the officer, is not per se, by virtue of such employment and payment, deemed ineffective counsel.  95 H. 9, 18 P.3d 871.

  Defendant was entitled to a hearing on question of whether counsel who filed motion to withdraw guilty plea should have been substituted as counsel of record before trial court summarily denied defendant's motion on the ground that a withdrawal and substitution of counsel had not been filed under rule 57, Hawaii rules of penal procedure.  95 H. 177, 19 P.3d 1289.

  Defendant's trial counsel provided defendant with ineffective assistance in failing to seek suppression of defendant's confession on the ground that defendant's inculpatory statement was induced by detective's use of evidence that detective had obtained as a result of executing an unlawful search warrant.  98 H. 387, 49 P.3d 353.

  Ineffective assistance of counsel when defense counsel's errors and omissions resulted in the possible impairment of a potentially meritorious defense; defense counsel failed to object to prosecution's rebuttal argument commenting on defendant's failure to testify and counsel intentionally elicited detective's opinion that defendant had murdered defendant's wife.  102 H. 504, 78 P.3d 317.

  Not violated where imprisonment authorized but not imposed.  3 H. App. 673, 657 P.2d 1062.

  No showing of knowing and intelligent waiver; infringement of right presumed prejudicial and State must rebut presumption and prove error was harmless beyond a reasonable doubt.  4 H. App. 614, 672 P.2d 1036.

  Standard for effective assistance of appellate counsel; right not violated.  6 H. App. 331, 720 P.2d 1015.

  No right to hybrid representation.  8 H. App. 330, 802 P.2d 482.

  Where an accused has been arrested and interrogated by police and has not been specifically advised by court or accused's counsel that accused has constitutional right to counsel at every stage of proceeding following that arrest, accused cannot be held to have knowingly and intelligently waived that right, and any statements made by accused to police absent the advice are inadmissible.  9 H. App. 447, 845 P.2d 1194.

  Where defendant contended that defendant was denied constitutional right to effective assistance of counsel at trial because defendant's trial counsel, deputy public defender, concurrently represented defendant's brother in another criminal case and defendant's defense at trial was that brother was the actual perpetrator of offenses for which defendant was convicted, case remanded for evidentiary hearing to determine whether conflict of interest actually existed when trial counsel represented defendant and, if so, whether the conflict prejudiced defendant's right.  77 H. 374 (App.), 884 P.2d 1150.

  The court's assumption of defense counsel's role by persuading defendant to relinquish defendant's right to testify was an interference with the attorney-client relationship protected by Sixth Amendment to U.S. Constitution and this section; the intervention by the court constituted plain error; the error was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Indigent defendant charged with offense punishable by term of imprisonment entitled at trial to be assisted by appointed counsel.  80 H. 246 (App.), 909 P.2d 574.

  Defendant did not waive right to court-appointed counsel where defendant requested substitute court-appointed counsel and was not afforded reasonable opportunity to show good cause for a substitute court-appointed counsel.  80 H. 262 (App.), 909 P.2d 590.

  Absent valid waiver of right, use of prior uncounseled felony convictions to enhance prison sentence violates defendant's right to counsel.  81 H. 421 (App.), 918 P.2d 228.

  If sentencing court gives consideration to defendant's previous convictions in choosing to impose consecutive terms of imprisonment, court must ensure that any prior felony, misdemeanor, and petty misdemeanor conviction relied on was with defendant receiving assistance of counsel.  81 H. 421 (App.), 918 P.2d 228.

  No ineffective assistance of counsel where counsel's failure to request trial continuance when police officer was unavailable to testify at trial did not result in prejudice to defendant.  82 H. 394 (App.), 922 P.2d 1007.

  No ineffective assistance where, inter alia, defendant's counsel adequately prepared for trial, did not fail to offer motion to sever trials, and no evidence that fact that defendant's counsel was not lead counsel was prejudicial to defendant's entrapment defense.  82 H. 499 (App.), 923 P.2d 916.

  Right not violated by trial court's denial of defendant's motion to withdraw and substitute counsel as there was no good cause to warrant substitution where, despite being advised of its inadmissible nature, defendant insisted attorney proffer character evidence and character witnesses at trial, there was no "complete breakdown of trust and confidence" between attorney and defendant, and defendant elected to continue with attorney, without further protest, and did not aver that defendant wanted to go to trial pro se.  101 H. 112 (App.), 63 P.3d 420.

  Where defendant had not been charged with any crime when defendant gave defendant's statement, defendant's right not violated.  101 H. 344 (App.), 68 P.3d 618.

  Ineffective assistance of counsel where public defender (PD) mistakenly concluded that HRPP rule 16 required PD to turn over defendant's toxicology report to the State and failed to realize that by doing so, PD was waiving defendant's physician-patient privilege, and PD's errors substantially impaired defendant's potentially meritorious defense as evidence that defendant tested positive for cocaine undermined the credibility of the defendant.  107 H. 282 (App.), 112 P.3d 768.


Self-representation.

  Right of self-representation is guaranteed by this section.  Mere appointment of standby counsel over a defendant's objection does not per se violate this section; the level of standby counsel's participation determines whether a defendant's constitutional right of self-representation has been violated. 75 H. 307, 861 P.2d 11.


Jury of the district.

  Requirements of HRPP rule 18 and this section having been satisfied, venue was proven beyond a reasonable doubt.   78 H. 185, 891 P.2d 272.

  Referred to:  51 H. 195, 456 P.2d 805.


Jury trials.

  Jury trials not required in "petty" offenses.  51 H. 612, 466 P.2d 422.

  Section modeled after 6th Amendment of federal constitution.  51 H. 612, 466 P.2d 422.

  Driving under influence is serious crime entitling accused persons right to jury trial; statutory amendment limiting incarceration periods did not reduce seriousness of crime.  72 H. 597, 825 P.2d 1065.

  Waiver of right to jury trial cannot be presumed by silent record.  73 H. 217, 830 P.2d 512.

  Defendant charged with driving after license suspended for driving under influence of intoxicating liquor in violation of §291-4.5 (1985), not entitled to jury trial.  75 H. 68, 856 P.2d 1240.

  Because the record was silent as to any colloquy between court and defendant, counsel's waiver of client's right was invalid, violating defendant's right to trial by jury under this section and Sixth Amendment to U.S. Constitution.  75 H. 118, 857 P.2d 576.

  Charge of first-offense DUI under §291-4, as amended by Act 128, L 1993 was constitutionally petty; being a constitutionally petty offense, no right to a jury trial attached to first-offense DUI. 76 H. 360, 878 P.2d 699.

  Defendant did not have a right to jury trial on prostitution charges.  77 H. 162, 883 P.2d 83.

  Offense is presumptively a petty offense to which right to a jury trial does not attach, if maximum authorized term of imprisonment for offense does not exceed thirty days.  77 H. 162, 883 P.2d 83.

  Where no term of imprisonment was authorized under §266-25 for violation of administrative rule regulating boat moorings, violation a presumptively petty offense for which right to jury trial did not attach; consideration of other relevant factors failed to overcome presumption.  84 H. 65, 929 P.2d 78.

  Findings under §706-662(5) regarding (a) the age or handicapped status of the victim and (b) whether "such disability is known or reasonably should be known to the defendant" entail "intrinsic" facts; Hawaii constitution requires these findings to be made by the trier of fact, not the sentencing court.  91 H. 261, 982 P.2d 890.

  When a fact susceptible to jury determination is a predicate to the imposition of an enhanced sentence, the Hawaii constitution requires that such factual determinations be made by the trier of fact.  91 H. 261, 982 P.2d 890.

  Under totality of facts and circumstances, defendant knowingly and voluntarily waived right to jury trial; defendant was aware of right, articulated to trial court the difference between a jury trial and judge trial, defendant's counsel stated counsel had explained difference to defendant, and defendant affirmatively indicated to trial court that waiver was voluntary and a result of defendant's own reflection.  93 H. 63, 996 P.2d 268.

  There is no constitutional right to a jury trial for a first-time driving under the influence of drugs offense under §291-7 (1993) as the offense is a "petty" and not "serious" offense.  97 H. 259, 36 P.3d 803.

  Where record indicated that trial court conducted a colloquy with defendant regarding defendant's right to a trial by jury and that defendant orally waived this right, defendant subsequently failed to overcome burden of proving by a preponderance of the evidence that defendant's waiver of right to jury trial was involuntary.  99 H. 312, 55 P.3d 276.

  Defendant must personally give oral or written waiver of right to jury trial; waiver by defense counsel not valid in absence of any colloquy between court and defendant.  80 H. 372 (App.), 910 P.2d 143.

  Right not erroneously denied where plaintiff missed ten-day jury demand deadline under DCRCP rule 38(b) without adequate excuse.  83 H. 50 (App.), 924 P.2d 544.

  Where trial judge failed to engage in a colloquy with defendant to ensure that the waiver of jury trial was intelligent, knowing and voluntary, and defendant's counsel did not represent in open court that defendant was aware of defendant's right to a jury trial, under the totality of circumstances, trial court failed to obtain a valid waiver of defendant's right to a jury trial.  98 H. 77 (App.), 42 P.3d 654.

  Under the totality of the circumstances, where defendant's express waiver of a jury trial was consistently clear, direct, and unequivocal throughout the entire colloquy, defendant orally waived right to trial by jury, and failed to demonstrate by a preponderance of the evidence that this  waiver was involuntary.  105 H. 160 (App.), 95 P.3d 14.

  Where maximum time in jail for a violation of a Hawaii administrative rule was thirty days and notwithstanding that defendant was subject to a possible maximum fine of $18,000, defendant's offense was "petty"; thus, defendant had no right to a jury trial under the Hawaii constitution.  105 H. 342 (App.), 97 P.3d 418.

  Based on the totality of the circumstances, defendant failed to establish that the waiver of defendant's right to a jury trial was involuntary or improper; the family court's mass advisement, in conjunction with the family court's individualized colloquy of defendant, sufficiently apprised defendant of defendant's constitutional right to a jury trial, and defendant knowingly, intelligently, and voluntarily waived this right.  108 H. 300 (App.), 119 P.3d 608.


Public trial.

  Manner in which defendant's family was excluded from courtroom violated defendant's right to a public trial.  91 H. 181, 981 P.2d 1127.

  The right to a public trial is not implicated by the exclusion of a potential witness pursuant to the witness exclusionary rule; both the witness exclusionary rule and the right to a public trial ensure the appearance of fairness at trial; thus, defendant's right not violated by exclusion of defendant's father from the courtroom as a potential prosecution rebuttal  witness.  97 H. 206, 35 P.3d 233.


Impartial jury.

  See also notes to U.S. Const. Amend 6.

  Violated by foreperson's statement to other jurors, based on own experience, that minors' claims of sexual molestation were reliable.  68 H. 575, 722 P.2d 1039.

  Defendant's right to a fair trial was violated when it was found that a juror had a bias to defendant's refusal to take the witness stand.  71 H. 389, 791 P.2d 1266.

  Questioning only the jury foreperson does not resolve the matter of jury misconduct.  72 H. 97, 807 P.2d 593.

  Jury was not tainted by anonymous phone calls to some of the jurors where no threat was made or where there was no actual reference to the trial.  72 H. 106, 807 P.2d 1264.

  Trial court's supplemental instruction to deadlocked jury that it must unanimously decide that it was unable to reach verdict was prejudicial.  72 H. 327, 817 P.2d 1054.

  Consideration of non-evidentiary materials by jury during deliberations and failure to rebut presumption of prejudice resulted in denial of right to fair trial.  72 H. 475, 823 P.2d 152.

  Trial court must insure that defendant's right to fair trial is not compromised and at the least prevent or reduce prejudicial pretrial publicity; order imposing restrictions on extrajudicial statements of trial participants was impermissible.  73 H. 499, 835 P.2d 637.

  Circuit court did not commit an abuse of discretion in granting defendant's motion for new trial; circuit court's conclusions of law that possible juror misconduct at voir dire and juror misconduct during deliberations deprived defendant of a trial by twelve fair and impartial jurors not clearly erroneous.  76 H. 172, 873 P.2d 51.

  Newscast concerning appellants and their alleged involvement in a burglary other than those charged and prospective juror's account of the newscast and the effect it had on prospective juror that was given in presence of jury panel, discussed as "outside influences".  78 H. 383, 894 P.2d 80.

  Not violated by empaneling of anonymous jury where there was strong reason to believe jury needed protection and trial court took reasonable steps to minimize any prejudicial effect on defendant and ensure that defendant's fundamental rights were protected.  83 H. 507, 928 P.2d 1.

  Purpose of §612-18(c) is to uphold a criminal defendant's constitutional guarantees of a presumption of innocence and an impartial jury.  83 H. 507, 928 P.2d 1.

  The right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this State, is guaranteed by this section and §5 of this article of the Hawaii constitution.  84 H. 1, 928 P.2d 843.

  When separate and distinct culpable acts are subsumed within a single count charging a sexual assault, the trial court must either (1) require the prosecution to elect the specific act upon which the prosecution is relying to establish the "conduct" element of the charged offense, or (2) give the jury a specific unanimity instruction.  84 H. 1, 928 P.2d 843.

  Defendant's right not violated by having husband and wife serve on same jury; both expressly stated during voir dire that they would each make their own decisions and would not automatically go along with the other person.  88 H. 19, 960 P.2d 1227.

  Where trial court failed to correct prosecution's erroneous interpretation of "remains unlawfully" under §708-810, defendant's constitutional rights to due process and a unanimous jury verdict violated.  89 H. 284, 972 P.2d 287.

  Where trial court erred by ruling that evidence of defendant's eligibility for HUD assistance was irrelevant under HRE rule 401 and thus inadmissible under rule 402 when evidence was probative of and relevant to defendant's requisite intent, defendant's right to present a complete defense violated.  91 H. 275, 982 P.2d 904.

  References to race that do not have an objectively legitimate purpose constitute a particularly egregious form of prosecutorial misconduct.  91 H. 405, 984 P.2d 1231.

  Where there was a reasonable possibility that prosecutor's comment during closing argument might have contributed to defendant's conviction, prosecutor's comment constituted prosecutorial misconduct that denied defendant right to a fair trial.  91 H. 405, 984 P.2d 1231.

  Defendant's constitutional right to unanimous verdict not violated as §707-715 defines a single criminal offense; subsections (1) and (2) constitute alternative means of establishing the mens rea of the offense of terroristic threatening--either one giving rise to the same criminal culpability.  92 H. 577, 994 P.2d 509.

  Where evidence concerned only a single incident of culpable conduct, trial court was not required to read the jury a specific unanimity instruction; right to unanimous verdict thus not violated.  93 H. 199, 998 P.2d 479.

  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.

  Juror questioning of witnesses did not deprive defendant of fair and impartial trial where questions posed by jurors were carefully reviewed by the trial court and questions tending to elicit improper or inadmissible evidence were excluded.  97 H. 206, 35 P.3d 233.

  Although prosecutor's remark that the reasonable doubt standard "was never meant to provide a shield for a guilty man" had the potential to invite the jury to misapply and erode the standard, and was thus improper, where the trial court immediately corrected the prosecutor and issued a curative instruction, and verdicts suggested that the jury was not unduly swayed by the isolated remark in the two week trial and gave proper consideration to all relevant circumstances, improper comment not reversible error.  98 H. 1, 41 P.3d 157.

  Defendant's right not violated where defendant did not assert or show that a "distinctive group" was underrepresented in the pool of potential jurors initially selected in the case.  98 H. 1, 41 P.3d 157.

  Defendant's right to a unanimous jury verdict not violated by trial court's refusal to give a specific unanimity instruction as defendant's actual and constructive possession of the methamphetamine comprised a continuing course of conduct.  99 H. 198, 53 P.3d 806.

  Where negativing of defendant's mitigating extreme mental or emotional distress defense by prosecution was a material element of the offense of first degree murder such that jury unanimity was a prerequisite to returning any verdict, and trial court's special instruction expressly directed the jury to convict defendant of manslaughter if a single juror believed that the prosecution had failed to negative the mitigating defense, right to unanimous jury verdict violated.  99 H. 542, 57 P.3d 467.

  The alternative states of mind potentially requisite to the charged offense of second degree theft by shoplifting, as prescribed by the definition of "intent to defraud" set forth in §708-800, does not implicate a defendant's constitutional right to a unanimous jury verdict, as guaranteed by article I, §5 and this section of the Hawaii constitution; a proper elements instruction, which sets forth the alternative states of mind prescribed by the "intent to defraud" component of second degree theft by shoplifting, does not violate defendant's constitutional right.  101 H. 389, 69 P.3d 517.

  Where defendant failed to satisfy defendant's burden of establishing a prima facie showing that the possibility of juror misconduct could have substantially prejudiced defendant's right to a fair trial by an impartial jury, the trial court did not abuse its discretion by denying defendant an evidentiary hearing on defendant's motion for a new trial.  103 H. 285, 81 P.3d 1200.

  Where, even if juror was sleeping and did not hear a portion of defense counsel's closing argument, juror was given correct instruction, and presumably juror followed it;  thus, based on the totality of circumstances, the prosecution met its burden in establishing that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt.  108 H. 474, 122 P.3d 254.

  Failure to inquire into circumstances of statement overheard by juror, and reliance on juror's own determination of ability to remain impartial while unaware of influences is reversible error.  2 H. App. 643, 639 P.2d 413.

  Not violated by bailiff's statement to jury foreperson that jurors should all agree with verdict if polled.  6 H. App. 320, 721 P.2d 718.

  Where trial court found statements of jurors on voir dire credible, statements were sufficient to establish beyond reasonable doubt that defendant was not denied an impartial jury.  85 H. 49 (App.), 936 P.2d 1297.

  Where State failed to rebut presumption of prejudice to defendant resulting from juror's improper investigation of details concerning defendant's welfare status, court properly granted motion for new trial.  89 H. 215 (App.), 971 P.2d 304.

  Plain error where trial court's answer to jury communication was prejudicially insufficient, misleading and affected defendant's constitutional right to a unanimous verdict as jury may have wrongly believed based on court's answer that if they failed to reach unanimous agreement as to the affirmative defense of entrapment, the defense was not applicable and a guilty verdict was required.  90 H. 489 (App.), 979 P.2d 85.

  Where there was a distinct and reasonable possibility that trial court's error in commenting upon the location of the incriminating items contributed to the conviction of the defendants, error materially impinged upon defendant's right to trial by jury, and error was not harmless beyond a reasonable doubt.  92 H. 675 (App.), 994 P.2d 607.

  Where there was no genuine possibility that the jurors were not unanimous as to the conduct for which defendant was found culpable, trial court's failure to give specific unanimity instruction as to the methamphetamine manufacturing offense did not violate defendant's substantial due process right to a unanimous jury verdict.  95 H. 365 (App.), 22 P.3d 1012.

  Where prosecutor referred to defendants' race in opening statement, there was no curative instruction given to address the inflammatory comment, trial court overruled defense counsel's timely objection, and the case against defendants, which hinged on the credibility of complainant, was not so overwhelming as to outweigh the inflammatory comment, prosecutor's references to race might have contributed to the convictions of defendants; thus,  convictions set aside.  98 H. 358 (App.), 48 P.3d 605.


Speedy trial.

  See also notes to U.S. Const. Amend. 6.

  Factors considered in determining deprivation of speedy trial. 64 H. 65, 637 P.2d 407.

  In consenting to be tried with co-defendants, defendant could not claim that co-defendant's motions were not attributable to defendant.  64 H. 65, 637 P.2d 407.

  One year and three week delay between arrest and trial is presumptively prejudicial.  64 H. 65, 637 P.2d 407.

  HRPP rule 48 (dismissal) has broader purpose than constitutional right to speedy trial.  73 H. 352, 833 P.2d 66.

  Defendant not deprived of right, where although the reason for the delay leaned marginally in defendant's favor, the weight attributed to that factor was offset by defendant's eleventh-hour assertion of defendant's right and defendant's failure to even attempt to demonstrate that defendant was actually prejudiced by the delay in the commencement of trial.  76 H. 415, 879 P.2d 520.

  Defendants not deprived of constitutional right to speedy trial where although the reason for the delay factor weighed in favor of the defendants, it was outweighed by the facts that defendants failed to assert their right and failed to demonstrate that they were actually prejudiced by the delay in bringing them to trial.  78 H. 54, 890 P.2d 291.

  Where defendant was substantially responsible for pretrial delay and failed to assert right to speedy trial, allowing defendant's case to proceed to trial after eleven-month delay was not error.  92 H. 192, 990 P.2d 90.

  Defendant not deprived of right to speedy trial; nineteen-month delay between arrest and trial is presumptively prejudicial; defendant's right to speedy trial accrued when arrested.  4 H. App. 222, 665 P.2d 165.

  Defendant's right to a speedy trial was not violated.  8 H. App. 284, 800 P.2d 623.

  Among factors to be considered is prejudice to defendant caused by oppressive pretrial incarceration, ignominy occasioned by pending criminal charges, and difficulty of preparing for trial.  9 H. App. 232, 832 P.2d 737.

  Right not violated where delay was caused by defendant's own absence from Hawaii and consequent unavailability for trial, and defendant failed to produce evidence that defendant suffered any prejudice.  83 H. 496 (App.), 927 P.2d 1379.

  Right not violated where, although the prejudice prong of the Barker analysis weighed in favor of defendant, this prejudice was outweighed by the delay attributable to defendant and defendant's failure to demand a speedy trial; that the unavailability of victim as a witness caused the "possibility of prejudice" to defendant's defense did not support defendant's position that defendant's speedy trial right was violated.  103 H. 490 (App.), 83 P.3d 753.

  Cited:  56 H. 378, 537 P.2d 1187.


Right to be informed.

  Not violated where burglary indictment alleged all elements of the crime and record indicated the specific crime intended to be committed, though specific crime not alleged.  66 H. 312, 660 P.2d 39.

  Accomplice instruction improper where each defendant was charged separately and charges did not inform them of circumstances in which they acted as accomplices.  72 H. 278, 815 P.2d 428.

  State failed to adequately inform defendant of nature and cause of the §134-6(a) charge.  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.

  Although prosecution's oral charge failed to include the word "bodily" to modify "injury", the omission did not alter the nature and cause of the accusation such that a person of common understanding would fail to comprehend it; thus, the oral charge was not so obviously defective that by no reasonable construction could it be said to charge the offense for which conviction was had; because omission of the word "bodily" did not constitute an essential element of the offense, harmless error.  99 H. 312, 55 P.3d 276.

  Violated where minutes before trial was to commence, complaint against defendant amended from driving while license suspended to driving without a license.  81 H. 76 (App.), 912 P.2d 573.


















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