[ARTICLE VI.--1791]


     In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.


Attorney General Opinions


  Proposed legislation did not violate federal constitutional law to extent it diminished the number of members on jury panels in either civil or criminal trials.  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.

  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. Breeze:  Custodial Interrogation.  6 UH L. Rev. 653.

  State v. O'Brien:  Right to Jury Trial for Driving Under the Influence of Intoxicating Liquor.  8 UH L. Rev. 209.

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

  The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands.  14 UH L. Rev. 445.

  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.

  An Evaluation of the Summary Contempt Power of the Court:  Balancing the Attorney's Role as an Advocate and the Court's Need for Order.  19 UH L. Rev. 145.

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

  State v. Rivera:  Extended Sentencing and the Sixth Amendment Right to Trial by Jury in Hawai‘i.  28 UH L. Rev. 457.

  How to Transfer Venue When You Only Have One:  The Problem of High Profile Criminal Jury Trials in American Samoa.  29 UH L. Rev. 325.

  Blast It All:  Allen Charges and the Dangers of Playing With Dynamite.  32 UH L. Rev. 323 (2010).

  State v. Fields:  Should a Declarant's Professed Memory Loss at Trial Satisfy the "Unavailability" Requirement Under Hawaii's Confrontation Clause?  34 UH L. Rev. 329 (2012).

  "Completely Instructing the Jury on the Law":  Lesser-Included Offenses in Hawai`i.  40 UH L. Rev. 271 (2017).


Case Notes



  Defendant has constitutional right to have all stages of a criminal trial conducted by a person with jurisdiction to preside.  42 F.3d 473.

  No violation of defendant's due process right to a fair trial by prosecution's refusal to reveal exact dates of confidential informant's observations as exact dates were not necessary in order for defendant to challenge district court's findings of probable cause.  88 H. 396, 967 P.2d 228.



  Seven-day failure to comply with time requirements for filing criminal appeal does not preclude right to appeal.  2 H. App. 606, 638 P.2d 338.


Compulsory process.

  District court erred in excluding defense expert witness as sanction for asserted violation of discovery rule where no discovery violation occurred.  937 F.2d 1422.

  A sentencing increase based on defendant's false testimony does not unconstitutionally burden defendant's right to testify.  1 F.3d 1523; 35 F.3d 1275.

  Where defendant contended that pursuant to constitutional right to testify, district court was required to permit defendant to explain to jury that defendant behaved in manner that defendant did because defendant was acting under duress, whether or not defendant had demonstrated prima facie evidence of duress, since proposed testimony pertained to a defense that was not relevant as a matter of law, the district court did not err in excluding the evidence during the trial.  102 F.3d 994.

  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.

  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 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.

  Court's ruling that evidence of defendant's juvenile proceedings could be admissible violated §571-84(h) and constituted reversible error, where ruling was a reason defendant decided not to testify, infringed on defendant's constitutional right to testify, and there was a reasonable possibility that the court's error might have contributed to defendant's conviction.  127 H. 432, 279 P.3d 1237 (2012).

  Advisement by the family court did not adequately ascertain whether petitioner understood petitioner's constitutional right to testify or not to testify, as required by the Hawaii supreme court in Tachibana v. State.  Moreover, petitioner's need for an interpreter during the trial was a "salient fact" heightening the necessity for the court to insure that petitioner understood the rights petitioner waived.  Accordingly, the court did not obtain a valid on-the-record waiver of petitioner's right to testify.  130 H. 83, 306 P.3d 128 (2013).

  Where the district court's ultimate Tachibana colloquy was defective because it incompletely advised defendant of defendant's right to testify and because it did not establish that defendant understood defendant's rights, the district court did not obtain an on-the-record waiver of the right to testify from defendant; defendant demonstrated a constitutional violation of defendant's right to testify, which could not be considered harmless.  132 H. 85, 319 P.3d 1093 (2014).

  Where inmate was transported to the courthouse upon being subpoenaed to testify but refused to testify, circuit court did not violate defendant's right to compulsory process by denying defendant's request to extract the inmate so that the inmate could refuse to testify in front of the jury.  133 H. 253, 327 P.3d 931 (2014).

  Refusal of court to permit defendant at an identification suppression hearing to examine the identification witness was not violative of constitutional rights.  1 H. App. 335, 619 P.2d 1078.

  Constitutional right to present character evidence no greater than right under Hawaii Rules of Evidence.  5 H. App. 251, 687 P.2d 554.

  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 did not violate defendant's due process and Sixth Amendment rights to compulsory process to present a favorable defense witness when it ordered witness to wear western clothing when testifying, thus precluding witness from wearing only a malo and a kihei; to the extent that the effect of the western-Hawaiian clothing combination was bizarre, insulting and undermined the value of the witness' testimony, those consequences were caused by the witness opting for that combination and could not be used by defendant to vacate the jury's verdict.  106 H. 43 (App.), 101 P.3d 652.


Confrontation of witnesses.

  Not violated by court's refusal to admit prosecution witness' shoplifting conviction.  789 F.2d 1425.

  When substantial cross-examination has taken place, the courts are less inclined to find a violation of the right to confrontation.  819 F.2d 227.

  Where trial court asked defense counsel to designate one attorney to conduct "main" cross-examination into basic issues, and expressly allowed all defense attorneys to cross-examine as to issues particular to their own clients, appellants failed to show how court's requirement limited any relevant testimony or caused them prejudice.  127 F.3d 791.

  Where defendant argued that statute (18 U.S.C. §3509) setting forth procedure by which an alleged child victim can testify outside of physical presence of defendant via two-way closed circuit television violated the confrontation clause, statute (1) not unconstitutional; and (2) does not require that television monitor in witness room be located directly in child's field of vision while child testifies.  328 F.3d 493.

  Waiver, when effective.  51 H. 99, 451 P.2d 806.

  Includes the right of cross-examination.  51 H. 125, 453 P.2d 221.

  Right not necessarily violated by admission of business records as exception to hearsay rule.  53 H. 466, 497 P.2d 575.

  Admissibility of transcripts of witness' testimony at preliminary hearing.  54 H. 637, 513 P.2d 697.

  Sufficiency of proof of unavailability of witness to permit introduction of transcript of pre-trial testimony.  55 H. 346, 519 P.2d 1241.

  Admission of oral confession of a defendant implicating a co-defendant violates confrontation rights of the co-defendant.  58 H. 299, 568 P.2d 504.

  Not violated by evidence admissible under exception to hearsay rule, provided statement is found to be reliable.  62 H. 518, 616 P.2d 1383.

  Defendant's right of cross-examination may not be unduly restricted but it has never been held to be absolutely without restriction.  62 H. 572, 617 P.2d 1214.

  Admission of stipulation of testimony of State's witness was not a denial of the right of confrontation.  62 H. 646, 618 P.2d 1142.

  Waiver of right by defendant's counsel.  63 H. 186, 623 P.2d 881.

  Entry of stipulated testimony into evidence without determining knowing and intelligent waiver.  64 H. 187, 637 P.2d 778.

  Unavailability of witness; good faith effort to secure appearance.  65 H. 286, 651 P.2d 470.

  Defendant claiming confrontation rights violated had no standing to challenge admission of co-defendant's illegally obtained confession.  68 H. 569, 722 P.2d 1036.

  Redacted statement of nontestifying co-defendant did not violate confrontation clause.  70 H. 219, 768 P.2d 230.

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

  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.

  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.

  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.

  Where prior inconsistent statements were properly admitted under HRE rule 802.1(1)(C) and witnesses were cross-examined with respect to their statements, substantive use of these statements did not violate defendant's confrontation rights.  92 H. 61, 987 P.2d 959.

  Where jury had sufficient information to gauge adequately witness' credibility and to appraise witness' motivation to fabricate testimony against defendant, trial court did not abuse discretion in limiting scope of defendant's cross-examination of witness.  92 H. 192, 990 P.2d 90.

  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 this Amendment and article I, §14 of the Hawaii constitution was violated; appellate court erred and case remanded for new trial.  106 H. 116, 102 P.3d 360.

  Where defendant would not have likely been acquitted, witness was not the only witness to the event, and the conviction did  not rest on the witness' credibility alone, trial court's preclusion of defendant's questioning of witness regarding witness' motives for changing witness' mind about testifying was harmless error.  109 H. 314, 126 P.3d 357.

  Where, pursuant to HRE rule 404(b), defendant was required to give prosecution reasonable notice prior to introducing rule 404(b) evidence, it did not violate defendant's constitutional right to present a defense and examine witnesses; rule 404(b) is not per se unconstitutional even though it may restrict a defendant's constitutional right to confront an adverse witness and rule 404(b)'s policy of reducing surprise and promoting early resolution on the issue of admissibility justified the limitation imposed on the defendant's constitutional right to testify.  118 H. 452, 193 P.3d 368.

  The admission into evidence, as a business record under HRE rule 803(b)(6), of a speed check card for which a proper foundation was established, would not have violated defendant's Sixth Amendment rights; the speed check card was created in a non-adversarial setting in the regular course of maintaining the officer's vehicle five months prior to the alleged speeding incident and was therefore non-testimonial in nature.  122 H. 354, 227 P.3d 520 (2010).

  Defendant's right violated where court did not allow defendant to cross-examine complainant about complainant's alleged theft of defendant's credit cards; had defendant been allowed to cross-examine, defendant might have succeeded in eliciting testimony from complainant tending to show that complainant was biased or had a motive to fabricate or exaggerate the story about harassment and to testify falsely in court, which in turn could have affected the court's view of complainant's credibility and that the State had not proven its case.  128 H. 34, 282 P.3d 576 (2012).

  Where a defendant has expressed an intention to be absent from the proceedings and the court has the opportunity to address the defendant, trial courts should advise a defendant of the constitutional rights that will be lost upon exiting a courtroom; by engaging defendants in this manner, the trial courts seek to ensure that a defendant makes an informed decision not to be present.  128 H. 479, 291 P.3d 377 (2013).

  Admissibility of crime victim's preliminary hearing testimony at trial rests on whether the preliminary hearing provided defendant with a sufficient and meaningful opportunity for cross-examination, based upon:  (1) the motive and purpose of the cross-examination; (2) whether any restrictions were placed on defendant's cross-examination during the preliminary hearing; and (3) whether defendant had access to sufficient discovery at the preliminary hearing to allow for effective cross-examination of victim.  135 H. 220, 349 P.3d 327 (2015).

  In prosecution for kidnapping and terroristic threatening, admission of victim's preliminary hearing testimony at trial violated defendant's rights under the Confrontation Clause, where the preliminary hearing did not provide defendant with a meaningful opportunity for cross-examination because defendant did not have access to relevant discovery materials that would have assisted in the cross-examination of victim, particularly with regard to significant inconsistencies between victim's preliminary hearing testimony and victim's earlier statements.  135 H. 220, 349 P.3d 327 (2015).

  In prosecution for kidnapping and terroristic threatening, admission of victim's statements during 911 call did not violate defendant's rights under the Confrontation Clause because the statements were nontestimonial in nature given that:  (1) victim was facing an ongoing emergency and the purpose of the call was to request police assistance; (2) victim's statements occurred outside the presence of police protection; and (3) victim was still facing the threat of violence from defendant when the call was placed.  135 H. 220, 349 P.3d 327 (2015).

  Defendant's right to be present at trial was not violated when trial proceeded during defendant's voluntary absence, where:  (1) trial court continued proceedings for an extra twenty-one days due to defendant's disappearance; (2) no indication was given as to when defendant would return; (3) defendant did not contact anyone related to the case; (4) defendant's attorney and bail bond person could not reach defendant; (5) authorities could not locate defendant after a bench warrant was issued; and (6) any further delay to proceedings in order to await defendant's return was foreseeably indefinite.  135 H. 492, 353 P.3d 1034 (2015).

  Face to face confrontation is preferred; prosecution failed to show unavailability of the witness.  7 H. App. 80, 742 P.2d 986.

  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.

  Trial court erred in limiting questioning regarding complainant's financial situation and relationship with fiance; error not harmless.  79 H. 255 (App.), 900 P.2d 1322.

  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.

  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.

  Defendant's right to confrontation violated where family court admitted girls' statements, which were "testimonial" hearsay, and the girls were neither unavailable nor subject at any time to cross-examination concerning their statements; as error was not harmless beyond a reasonable doubt and there was sufficient evidence to support defendant's conviction, judgment vacated and remanded.  107 H. 133 (App.), 111 P.3d 28.

  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.

  Where sworn statements made by police intoxilyzer supervisor admitted into evidence pursuant to HRE rule 803(b)(8) as public records could not be considered "testimonial" hearsay, the statements were not subject to the requirements of this Amendment; thus, no showing of the supervisor's unavailability nor a prior opportunity for cross-examination was required prior to admission.  114 H. 396 (App.), 163 P.3d 199.

  As the right of confrontation is not absolute, circuit court properly ruled that defendant was not entitled to introduce selected portions of witness' statement that were favorable to defendant's defense and at the same time preclude the State from introducing other portions of witness' statement that were necessary to prevent the jury from being misled; thus, circuit court did not abuse its discretion in ruling that the responsive portions of witness' statement offered by the State were admissible under HRE rule 106 and rule 403.  125 H. 462 (App.), 264 P.3d 40 (2011).

  Where State offered as an exhibit a letter signed by the supervising driver license clerk certifying that defendant did not have a valid driver's license on the "violation date", and the supervising driver license clerk did not testify at trial, the exhibit was a testimonial statement and the district court's admission of the exhibit violated defendant's Sixth Amendment confrontation rights.  134 H. 465 (App.), 342 P.3d 884 (2015).

  In trial for sexual assault, declaration of cell phone carrier's custodian of records for the purpose of authenticating cell phone records as business records was admissible as evidence under the Confrontation Clause without requiring live testimony or cross-examination of custodian, where the declaration was non-testimonial and the defendant did not argue that the declaration attested to anything other than the facts necessary to establish the cell phone records as business records.  135 H. 294 (App.), 349 P.3d 401 (2015).


Impartial jury.

  Jury instructions did not invade province of jury as finders of fact.  Not violated by extrajudicial communication between juror and prosecutor regarding matter unrelated to trial.  730 F.2d 1292.

  Excusal of college students from venire did not violate right to jury fairly representing cross-section of community since college students did not qualify as cognizable group.  965 F.2d 781.

  Though prosecutor's remarks were of questionable relevance and conveyed repugnant images, reversal justified only where alleged prosecutorial misconduct materially affects verdict or deprives defendant of fair trial.  1 F.3d 1523.

  Habeas corpus granted due to jury misconduct.  677 F. Supp. 1061.

  Defendant's motion for new trial denied where defendant argued, inter alia, that new trial was necessary because juror failed to honestly answer a material question during voir dire.  101 F. Supp. 2d 1304.

  Scope of voir dire of prospective jurors in case of extensive pretrial publicity.  55 H. 640, 526 P.2d 94.

  Effect of news accounts prejudicial to defendant; protective measures required of trial court.  58 H. 356, 569 P.2d 891.

  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.

  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.

  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.

  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.

  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.

  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.

  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.

  Where juror nine's statement that defendant had "been in trouble before" concerned a highly inflammatory and prejudicial prior crime that had been ruled inadmissible, and the circuit court had instructed the jury to disregard the statement, the evidence was not so overwhelming as to outweigh the prejudice of juror nine's statement; thus, when viewed with the trial evidence and statements of other jurors during voir dire, juror nine's statements were insurmountably prejudicial, there was a reasonable possibility that it contributed to defendant's conviction, and the circuit court abused its discretion in denying a motion for a new trial.  126 H. 383, 271 P.3d 1142 (2012).

  Where record did not reflect that the jury was informed of the act that corresponded to each count, and the family court was required to provide the jury with a specific unanimity instruction, and its failure to do so constituted error, because the one-to-one relationship between counts and acts was made clear to the jury, and the jury found defendant guilty on nineteen counts for which nineteen exhibits were presented at trial, there was no genuine possibility that different jurors concluded that the defendant committed different acts; thus, error was harmless beyond a reasonable doubt.  127 H. 20, 276 P.3d 589 (2012).

  Where defendant was present when the trial court read the newspaper publicity statement to prospective jurors, and could have, but did not, object to the court's reading of the statement, appeals court did not err in concluding that defendant forfeited defendant's objection concerning the publicity statement.  127 H. 91, 276 P.3d 660 (2012).

  Where, (1) as an officer of the court, counsel was bound to respect the law as embodied in the jury instructions, and counsel's argument to the jurors encouraged disdain for the law, (2) no curative instruction was given by the court, and (3) the evidence in the case was not so overwhelming as to outweigh the effect of the misconduct, there was a reasonable possibility that prosecutor's improper remarks might have contributed to defendant's conviction and were thus not harmless beyond a reasonable doubt.  127 H. 432, 279 P.3d 1237 (2012).

  Where prosecutor advised the jury during closing argument that the jury instructions were "mumbo jumbo", that the jury instructions could be "put aside", and that the jurors could decide the question of guilt based on their "gut feeling", prosecutor's remarks constituted prosecutorial misconduct as the prosecutor reinforced the proposition that the jurors could disregard the law embodied in the instructions and improperly invited the jury to base its verdict on considerations other than the evidence in the case.  127 H. 432, 279 P.3d 1237 (2012).

  Any contact or private communication, unless trivial, during trial between a juror and a witness represents an outside influence of a nature that could substantially prejudice a defendant's right to a fair trial.  135 H. 437, 353 P.3d 979 (2015).

  Where juror in a criminal trial approached a witness in the men's room, inquired about possible employment, and handed the witness the juror's business card, and the court specifically instructed the jury to not talk to witnesses in the case:  (1) defendant made a prima facie showing of juror misconduct of a nature that had the potential to substantially prejudice defendant's right to a fair trial; (2) a rebuttable presumption of prejudice was raised; and (3) the court was required to ascertain the extent and effect of the improper influence by investigating the totality of circumstances surrounding the outside influence to determine its impact on the jury's impartiality.  135 H. 437, 353 P.3d 979 (2015).

  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 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.

  Defendant's right to a fair trial not violated where the record in the case did not indicate that juror was incompetent, unable to understand the proceedings, and unable to participate in deliberations.  120 H. 94 (App.), 201 P.3d 607.


Jury trials.

  Error to play tape recording without defendant's waiver of right to be present, but error harmless.  781 F.2d 740.

  Defendant's sentence violated the Sixth Amendment, where defendant was sentenced under a mandatory sentencing regime, the district judge departed upward under a section of the U.S. sentencing guidelines based on judicially determined facts, and the actual sentence exceeded the maximum authorized at the time based solely on the jury's verdict.  425 F.3d 602.

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

  Announcement of waiver by counsel in open court in the presence of accused is effective waiver.  53 H. 551, 497 P.2d 1360.

  Demand in open court for jury-waived trial by accused's counsel in accused's presence constitutes waiver of right to jury trial.  54 H. 28, 501 P.2d 977.

  Court's refusal to allow voir dire inquiries into specific possible prejudices of prospective jurors upheld as within discretion.  57 H. 492, 559 P.2d 728.

  Deferred acceptance of guilty plea program does not impose an impermissible burden on exercise of right to trial by jury.  58 H. 304, 568 P.2d 1194.

  Criteria to determine whether offense is petty or serious; person charged with petty misdemeanor carrying maximum penalty of thirty days confinement, a fine, or both, is not entitled to jury trial.  64 H. 374, 641 P.2d 978.

  Only if proceeding is criminal is right to jury dependent on magnitude of penalty imposed.  66 H. 461, 667 P.2d 783.

  Driving while intoxicated is serious offense.  68 H. 38, 704 P.2d 883.

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

  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 Sixth Amendment and article I, §14 of Hawai‘i constitution. 75 H. 118, 857 P.2d 576.

  No right to a jury trial for a first-offense DUI under §291-4, as amended by Act 128, L 1993.  76 H. 360, 878 P.2d 699.

  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.

  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.

  Trial court did not err in sentencing defendant to extended terms of imprisonment as a "multiple offender" pursuant to §706-662(4)(a); without this finding that the defendant committed a previous felony, notwithstanding that such an extended term may be considered "necessary for protection of the public", a judge would not be authorized to impose it; and extended term sentencing did not run afoul of this Amendment as interpreted by the U.S. Supreme Court in Apprendi v. New Jersey.  110 H. 79, 129 P.3d 1107.

  Inasmuch as §706-662 authorizes the sentencing court to extend a defendant's sentence beyond the "standard term" authorized solely by the jury's verdict by requiring the sentencing court, rather than the trier of fact, to make an additional necessity finding that does not fall under Apprendi's prior-or-concurrent-convictions exception, §706-662 is unconstitutional on its face; thus, defendant's extended term sentences imposed by the trial court violated defendant's right to a jury trial and were illegal.  115 H. 432, 168 P.3d 562.

  Appeals court did not err in affirming trial court's imposition of a consecutive term of imprisonment for attempted first degree sex assault where none of defendant's other individual prison terms exceeded the statutory maximum for each applicable offense.  121 H. 339, 219 P.3d 1126 (2009).

  No constitutional right to trial without a jury.  2 H. App. 506, 635 P.2d 244.

  Only way in which remittitur can be granted is as alternative to new trial since otherwise right to trial by jury would be taken away by the court.  2 H. App. 506, 635 P.2d 244.

  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" for Sixth Amendment purposes; thus, defendant had no right to a jury trial under the U.S. 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.

  Defendant did not have a constitutional right to a jury trial for a violation of §852-1, refusal to provide ingress or egress while walking a labor picket line, where the maximum punishment was thirty days in jail or a $200 fine, or both, and violation was thus a petty misdemeanor under §701-107(4).  110 H. 139 (App.), 129 P.3d 1167.


Public trial.

  Defendant waived right to testify.  883 F.2d 750.

  District court's exclusion of spectators during brief mid-trial questioning of jurors to determine if they were concerned for their safety was so trivial as to not implicate defendant's Sixth Amendment rights.  316 F.3d 955.

  Defendant who intentionally failed to appear at trial waived Sixth Amendment rights to appear.  666 F. Supp. 1432.

  Courts are open to the public subject to the supervision of the presiding judge and there was no error in court's refusal to clear courtroom of police recruits.  47 H. 185, 389 P.2d 146.

  Defendant's right to be present at all stages of trial; voluntary absence.  58 H. 425, 570 P.2d 848.

  Court's authority to close judicial proceedings.  59 H. 224, 580 P.2d 49.

  Defendant entitled as of right to public trial but not to private trial.  59 H. 224, 580 P.2d 49.

  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.

  Defendant's constitutional rights to a public trial were not implicated when the jury was allowed to deliberate, communicate, and return its verdict after normal business hours, when the courthouse was closed to the public, because the closure "was too trivial to implicate the constitutional guarantees".  112 H. 343 (App.), 145 P.3d 886.


Right to be informed.

  Indictment that charged defendant with "murder-for-hire" may not have given defendant notice that defendant must be prepared to meet a murder charge based on accomplice liability.  807 F.2d 805.

  Traffic citation issued to defendant on a military installation, referencing only Hawaii state law (§291C-102) and reciting the facts of defendant's speeding violation, provided insufficient notice to defendant that defendant faced a criminal violation of federal law.  537 F. Supp. 2d 1116.

  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.

  Indictment charging general intent crime need not contain a particularized allegation of general intent.  66 H. 650, 672 P.2d 554.

  Not violated where indictment alleged all elements of the crime and record indicated the specific crime intended to be committed, though specific crime not alleged.  67 H. 105, 678 P.2d 1078.

  Not violated though indictment stated in disjunctive, where it tracked definition of crime and record indicated specific crime committed.  67 H. 119, 680 P.2d 250.

  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.

  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.

  Use of disjunctive charging language provided defendant with adequate notice of charges of kidnapping, terroristic threatening, promoting prostitution, and carrying or use of a firearm in the commission of a separate felony, where each count of the charges was worded in the language of a single subsection of a statute, alleging conduct that was reasonably related, and defendant readily identified the content and number of each disparate act alleged.  135 H. 492, 353 P.3d 1034 (2015).

  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.


Right to counsel.

  Defendant's out-of-court statement, see notes to Amendment 5.

  Pretrial voice identifications are not "critical stages" of the criminal proceeding in which defendant entitled to presence of counsel.  577 F.2d 473.

  Defendant not prejudiced by errors of counsel.  652 F.2d 1369.

  No showing of knowing and intelligent waiver.  672 F.2d 720; 4 H. App. 614, 672 P.2d 1036.

  Government has burden of showing that defendant was represented by counsel or waived that right if representation at time of earlier conviction is raised as issue.  799 F.2d 1401.

  Defense counsel's performance deficient because of erroneous advice regarding effect of defendant's conviction and likely sentence if defendant pled guilty.  800 F.2d 861.

  Ineffective assistance of counsel.  817 F.2d 1352.

  Miranda warning failed to adequately inform defendant of right to counsel; adequacy of Miranda warning is a question of law.  869 F.2d 1349.

  Defendant convicted of wilfully failing to file income tax returns knowingly and intelligently chose to exercise right to defend self.  941 F.2d 893.

  Uncounseled misdemeanor convictions may not be used to enhance sentence of later conviction.  957 F.2d 714.

  Violation of attorney-client privilege implicates constitutional right to counsel only when government interferes with relationship between criminal defendant and attorney resulting in substantial prejudice to defendant.  961 F.2d 852.

  Counsel's absence from portion of post-charge lineup proceeding violated defendant's right to counsel; government has affirmative duty to ensure counsel's presence at entire proceeding.  998 F.2d 1460.

  Defense counsel's failure to object to conduct of voir dire and to lack of certain jury instructions, and failure to place more emphasis on certain evidence did not fall below level of professional competence.  1 F.3d 855.

  Where defendant remains silent in face of defendant's attorney's decision not to call defendant as a witness, defendant has waived right to testify.  3 F.3d 1239.

  Right not violated by §291-4.5 mandatory imposition of prison sentence for driving motor vehicle with revoked license.  26 F.3d 920.

  Not violated where defendant who raised no objection at trial to multiple representation failed to show that an actual conflict of interest adversely affected defendant's lawyer's performance.  55 F.3d 1410.

  Corporation may use writ of coram nobis to raise ineffective assistance claim.  65 F.3d 1531.

  No violation of right to conflict-free counsel where defendant who raised no objection at trial failed to demonstrate that an actual conflict adversely affected defendant's lawyer's performance.  65 F.3d 1531.

  Appellants' right to conflict-free representation not impaired by trial court's order, where court asked defense counsel to designate one attorney to conduct "main" cross-examination into basic issues.  127 F.3d 791.

  Sixth Amendment guarantee of competent counsel applies to process of cooperation with government because this is a critical stage of the proceeding for those charged with federal crimes.  District court's decision not to grant an evidentiary hearing was an abuse of discretion; defendant's factual allegations, taken as true, stated a claim for relief based on defendant's attorney's failure to be a meaningful advocate during defendant's attempted cooperation, and the effect this failure likely had on the government's decision not to make a substantial assistance motion.  326 F.3d 1111.

  Where defendant alleged that defendant's attorney rendered ineffective assistance by failing to advise defendant to plead guilty immediately after defendant's arrest, the attorney's conduct did not constitute ineffective assistance.  326 F.3d 1111.

  Standard for habeas corpus due to lack of effective counsel: whether, with reasonably competent counsel, it is more likely than not that jury would have acquitted or convicted of a lesser offense.  488 F. Supp. 1384.

  Not violated by transfer of defendants to federal correctional facility on U.S. mainland pending trial.  778 F. Supp. 21.

  Sixth Amendment rights not violated, where defendant was charged with conspiracy to distribute drugs and obstruction of justice concerning possible money laundering offenses, and defendant's conversations did not concern drug conspiracy charge.  961 F. Supp. 1398.

  Government's request that court require defendant to waive Sixth Amendment right to effective assistance of counsel on issue of inadvertent disclosure of defendant's supplemental ex parte application for funds for mitigation investigation or compel defendant to seek new counsel was not justified, where, inter alia, any claim of ineffective assistance of counsel based on inadvertent service of application would be purely retrospective, and although defendant may choose to waive any claim for ineffective assistance of counsel, if any, that defendant might have, court could not compel defendant to waive defendant's claim.  58 F. Supp. 2d 1153.

  Where petitioner alleged, among other things, that petitioner's attorney was ineffective by failing to fully investigate mitigating defense of extreme mental or emotional distress until the eve of trial, subsequently failing to seek continuance of trial to investigate the defense, (1) presumption of prejudice was inappropriate, and (2) petitioner's argument that attorney's deficient performance prejudiced petitioner's trial, rejected.  128 F. Supp. 2d 650.

  Where petitioner argued that appellate counsel was ineffective for failing to raise petitioner's Brooks claim on direct appeal, the trial record was clear that the Brooks claim had merit; thus, it was unreasonable and prejudicial to petitioner that appellate counsel did not raise it.  23 F. Supp. 3d 1182 (2014).

  Does not apply to habeas corpus proceedings.  51 H. 318, 459 P.2d 376.

  Right to counsel at interrogation is applicable to trials begun after date of Miranda decision and right to counsel at police lineups is applicable to trials begun after decision in U.S. v. Wade, 388 U.S. 218.  51 H. 318, 459 P.2d 376.

  Applies at arraignment unless right is intelligently waived.  51 H. 322, 459 P.2d 382.

  When Hawaii was a territory, the Sixth Amendment applied and rendered invalid a conviction on a guilty plea entered without assistance of counsel.  51 H. 322, 459 P.2d 382.

  Where right is a constitutional requisite, it does not depend upon request and presuming waiver from silent record is impermissible.  51 H. 322, 459 P.2d 382; 52 H. 420, 477 P.2d 630.

  When Hawaii was a territory, Sixth Amendment applied directly, and indigent defendant had constitutional right to court-appointed counsel when entering pleas at arraignment, unless defendant waived defendant's right.  52 H. 420, 477 P.2d 630.

  Where record is silent, presumption is that defendant did not enter guilty plea voluntarily and understandingly.  52 H. 420, 477 P.2d 630.

  Defendant is entitled to effective assistance of counsel and is entitled to fair hearing on defendant's objections to appointed counsel.  52 H. 484, 479 P.2d 207.

  Right means effective assistance of counsel.  54 H. 28, 501 P.2d 977.

  To show deprival of effective assistance of counsel due to denial of continuance following change in court-appointed counsel, defendant must show actual prejudice.  54 H. 502, 510 P.2d 494.

  Prerequisites for waiver of counsel and acceptance of guilty plea.  55 H. 336, 519 P.2d 892.

  Honolulu Police Department Form 81 accepted as sufficient with respect to right to counsel warnings.  56 H. 428, 539 P.2d 1200.

  Failure of counsel to raise issue in briefs was not denial of effective counsel if issue presented orally.  56 H. 675, 548 P.2d 268.

  Right to counsel is waivable if voluntary and intelligently undertaken.  57 H. 46, 549 P.2d 727.

  When appellate court can determine voluntariness of waiver of counsel from the record, defendant has burden of proof that waiver was involuntary.  57 H. 354, 556 P.2d 577.

  Right means effective assistance of counsel; test to determine adequacy of counsel.  60 H. 17, 586 P.2d 1028.

  To establish inadequacy of counsel, it must be shown that counsel acted unreasonably and through constitutionally inadequate preparation.  60 H. 259, 588 P.2d 438.

  Defendant is entitled to a fair and reasonable time to prepare a defense and to allow counsel to prepare for trial.  60 H. 493, 591 P.2d 119.

  Opportunity for closing summation cannot be denied, but court has broad discretion to control duration and scope of closing arguments.  61 H. 233, 602 P.2d 520.

  Does not mean errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective counsel.  62 H. 120, 612 P.2d 526.

  Attaches in all trials of offenses punishable by imprisonment.  62 H. 298, 614 P.2d 397.

  To establish ineffectiveness of counsel, appellant must establish:  (1) specific errors or omissions reflecting lack of skill, judgment or diligence; (2) errors or omissions resulted in withdrawal or substantial impairment of a potentially meritorious defense.  62 H. 346, 615 P.2d 101.

  Effective assistance of counsel.  62 H. 620, 618 P.2d 301; 64 H. 62, 636 P.2d 742; 5 H. App. 20, 686 P.2d 28.

  Effective assistance--judgment of counsel to stipulate into evidence testimony of State's witness was within range of required competence.  62 H. 646, 618 P.2d 1142.

  No right to assistance of counsel at a showup conducted after the arrest of the accused but before indictment or formal charge.  63 H. 354, 628 P.2d 1018.

  Incriminating statements not "deliberately elicited" by informant.  64 H. 522, 644 P.2d 964.

  Not violated when suspect first requested counsel, then initiated further contact and made a statement after being advised by counsel not to do so.  66 H. 162, 657 P.2d 1044.

  Attorney's failure to call witnesses denied effective assistance of counsel.  68 H. 14, 701 P.2d 1287.

  Not violated by denial of funds to hire mental health expert to assist defense where defendant already examined.  68 H. 246, 710 P.2d 1193.

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

  Defendant waived right to counsel.  69 H. 473, 747 P.2d 1276.

  Right to counsel for indigent defendant in misdemeanor cases.  71 H. 147, 785 P.2d 1311.

  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.

  A proceeding to review revocation of a driver's license under §286-259 is a civil administrative proceeding, not a criminal proceeding for DUI; thus, accused's right to assistance of counsel inapplicable to administrative driver's license revocation hearing.  80 H. 197, 908 P.2d 545.

  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.

  No ineffective assistance where defense counsel's opening statement reflected an accurate understanding of defendant's and victim's rendition at trial of events surrounding incident in question.  83 H. 289, 926 P.2d 194.

  Defendant knowingly, intelligently, and voluntarily waived rights to counsel and to remain silent and voluntarily gave statement to police where defendant was calm and lucid during taped interview, indicated medication did not affect thinking or judgment, never expressed desire to terminate interview, and was particularly sophisticated with respect to criminal process and rights of accused.  83 H. 308, 926 P.2d 599.

  Judicial determination of probable cause proceeding is not a "critical stage" in criminal proceedings such that Sixth Amendment right to counsel attaches automatically.  83 H. 443, 927 P.2d 844.

  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 codefendant 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.

  No ineffective assistance by counsel's failure to obtain witnesses' testimony on Japanese organized crime where counsel could not have known trial court would refuse to qualify one as expert, other witness fell ill, and testimony would not have been enough to support duress defense.  85 H. 462, 946 P.2d 32.

  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.

  No ineffective assistance where counsel was able to negotiate a plea agreement of essentially a single life term with possibility of parole from a possible sentence of 610 years.  91 H. 20, 979 P.2d 1046.

  No ineffective assistance where counsel's representation, including disclosing defendant's prior criminal history, did not result in the withdrawal or substantial impairment of a potentially meritorious defense; overwhelming nature of evidence against defendant and failure of self-defense claim warranted conviction.  91 H. 261, 982 P.2d 890.

  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.

  No ineffective assistance where record did not support defendant's claim that defendant's attorney failed to follow through on mental examination report, failed to pursue extreme mental or emotional disturbance defense, and should have called in a mental health professional at suppression hearing.  92 H. 19, 986 P.2d 306.

  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 HRPP rule 57.  95 H. 177, 19 P.3d 1289.

  Ineffective assistance where defense counsel failed to object to the prosecution's premature elicitation of testimony regarding defendant's prior conviction during its redirect examination of officer before defendant had "introduced testimony for the purpose of establishing defendant's credibility as a witness," as required by HRE rule 609(a).  96 H. 83, 26 P.3d 572.

  Where consolidation of attempted first degree murder cases with murder case was not improper, the charge of first degree robbery did not fail to state an offense, and the trial court's limiting instructions regarding "other bad acts" evidence was not inadequate or untimely, no ineffective assistance of counsel.  99 H. 390, 56 P.3d 692.

  Ineffective assistance of counsel as 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.

  Where a HRPP rule 40 petition raises a colorable claim of ineffective assistance of counsel, the trial court must hold an evidentiary hearing; the hearing on petitioner's claims related to petitioner's multiple sclerosis evidence, other than petitioner's own trial testimony, should have been held, as trial counsel's failure to present evidence that would have further excluded petitioner as the perpetrator – that petitioner could not have run as fast as perpetrator did – would have at least possibly affected the jury's verdict and did in fact result in the possible impairment of a potentially meritorious defense.  116 H. 106, 170 P.3d 357.

  Where defendant was not given the opportunity to make an informed and knowledgeable decision to waive defense counsel's conflict of interest, but instead, defendant was forced to choose between proceeding pro se or accepting representation by defense counsel, the circuit court abused its discretion in denying defendant's motion for withdrawal and substitution of counsel; circuit court's denial of the motion resulted in a denial of effective assistance of counsel.  134 H. 308, 340 P.3d 440 (2014).

  Trial court abused its discretion by denying defendant's motion for substitution of appointed counsel with privately retained counsel of choice, where:  (1) the only supported justification for the denial was the efficient administration of justice but the record did not indicate that a delay would have been unduly problematic for the court; and (2) several other factors weighed in favor of granting defendant's request, including the lack of apparent prejudice to the State and the defendant evincing a lack of confidence in appointed counsel.  135 H. 381, 351 P.3d 1147 (2015).

  Defendant did not knowingly and intelligently waive right to counsel at sentencing hearing for harassment conviction, where:  (1) defendant's limited education, potential language barrier with the court, and unfamiliarity with the criminal justice system necessitated further inquiry by the trial court into defendant's background before proceeding to the court's warning of the risks and disadvantages of waiving counsel; (2) defendant was not informed of the maximum penalty that could be imposed at sentencing; (3) defendant was not fully aware of defendant's right to court-appointed counsel; (4) trial court's inquiry into the disadvantages of self-representation consisted of a series of yes or no questions with little opportunity for defendant to express confusion or ask questions; and (5) trial court failed to conclude its inquiry with a question seeking an affirmation of defendant's desire to waive the right to counsel.  135 H. 504, 353 P.3d 1046 (2015).

  Appellant has burden of establishing ineffective assistance of counsel; burden, how met.  1 H. App. 255, 617 P.2d 1235; 1 H. App. 268, 618 P.2d 315.

  Counsel's failure to object to prosecutor's questions or to move for mistrial or to strike as constituting ineffective assistance of counsel.  1 H. App. 536, 621 P.2d 986.

  No per se right on the part of an indigent defendant to change counsel in middle of trial.  2 H. App. 462, 634 P.2d 421.

  Dismissal of indictment not appropriate remedy for violation absent showing of prejudice or substantial threat thereof.  3 H. App. 107, 643 P.2d 807.

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

  Right to effective assistance of counsel was violated by defense counsel's prior and concurrent representation of prosecution witnesses in other matters.  4 H. App. 327, 666 P.2d 612.

  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.

  No right to counsel at post-arrest photographic display.  5 H. App. 127, 681 P.2d 573.

  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.

  Whether person arrested on basis of indictment and advised of and waived right to counsel under Miranda v. Arizona but not advised of right under Sixth Amendment and article I, §14 of Hawaii constitution, has also knowingly and intelligently waived right under the two provisions, discussed.  9 H. App. 447, 845 P.2d 1194.

  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 and article I, §14 of Hawai‘i constitution; 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.

  Absent valid waiver of right, use of prior uncounseled felony convictions to enhance prison sentence violated defendant's right to 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.

  No ineffective assistance where there was sufficient evidence to convict defendant as accomplice to second degree murder such that motion for judgment of acquittal would not have succeeded.  84 H. 112 (App.), 929 P.2d 1362.

  Where right attached at the initiation of adversarial judicial criminal proceedings, and not at the point of the DUI arrest, police did not have to give Miranda-like warnings about right to counsel at the point of the DUI arrest.  94 H. 17 (App.), 7 P.3d 193.

  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.

  Where record showed that trial court judge was extraordinarily patient and accommodating with defense counsel and that if defense counsel had wanted to make a closing argument, the judge would not have denied that request, defendant waived defendant's right to make a closing argument and court's failure to affirmatively offer defendant's counsel the opportunity to present a closing argument at trial did not deprive defendant of right to present a closing argument.  110 H. 284 (App.), 132 P.3d 852.

  The Hawaii paroling authority minimum-term hearing is a critical stage of the criminal proceeding and a convicted person is constitutionally entitled to be represented at the hearing by counsel; where defendant's rule 40 petition presented a colorable claim that defendant was denied the effective assistance of counsel at defendant's minimum-term hearing and did not knowingly and intelligently waive right to counsel, trial court erred in summarily denying the petition.  112 H. 446 (App.), 146 P.3d 606.

  No ineffective assistance of counsel where consideration of all the circumstances, including a waiver by client of a conflict of interest on the part of client's attorney and a power of attorney to pay for attorney's legal services, showed that attorney did not have an actual conflict of interest between client's interest and attorney's interest.  126 H. 247 (App.), 269 P.3d 782 (2012).

  No ineffective assistance of counsel where nothing in the record indicated that attorney's obligations extended any further than informing defendant that deportation was a possible consequence of defendant's no contest plea.  126 H. 541 (App.), 273 P.3d 1227 (2012).

  Where the record supported the Hawaii paroling authority's (HPA) determination of punishment and defendant did not provide any valid basis to support a claim that the HPA's corrected minimum term order was constitutionally deficient, defendant did not show that counsel provided ineffective assistance.  134 H. 390 (App.), 341 P.3d 1190 (2014).

  Cited:  56 H. 378, 537 P.2d 1187.


Speedy trial.

  Despite government's negligent delay in bringing third superseding indictment, defendant not entitled to dismissal of the indictment on Sixth Amendment grounds because defendant had not shown prejudice attributable to the delay.  322 F.3d 1157.

  Right under this amendment does not arise until after formal charge or indictment is lodged; whether the delay occurring thereafter amounts to unconstitutional deprivation depends upon circumstances.  316 F. Supp. 892.

  Delay of thirty-six months between indictment and trial was not a violation of defendant's right to a speedy trial where delay was caused by the inability to locate defendant.  666 F. Supp. 1428.

  Whether preindictment delay warrants dismissal of indictment rests within the discretion of the trial court.  43 H. 203.

  Provision has no application to delay occurring when there is no pending  prosecution.  47 H. 361, 389 P.2d 439.

  Provision has no application until putative defendant becomes an accused through charge or detention.  53 H. 652, 500 P.2d 1171.

  Burden upon movant to show prima facie case.  54 H. 443, 509 P.2d 549.

  In determining whether right to speedy trial has been violated, a balancing test must be used; factors that go into such a test.  54 H. 443, 509 P.2d 549.

  Right arises only when a person becomes an accused, which occurs when an indictment or information is returned against a person or when the person becomes subject to restraints on the person's liberty imposed by arrest.  54 H. 443, 509 P.2d 549.

  No deprivation of right where delays were a result of defendant's acts or the result of benefit granted defendant.  59 H. 456, 583 P.2d 337.

  Juvenile facing criminal charges as an adult becomes an "accused" upon issuance of family court's order waiving jurisdiction.  61 H. 12, 594 P.2d 1069.

  Speedy trial clause has not been extended to the resentencing procedure, so seven-year delay between original incorrect sentence and correction did not contravene the clause.  61 H. 226, 602 P.2d 13.

  Factors considered in determining deprivation of speedy trial.  62 H. 518, 616 P.2d 1383.

  In consenting to be tried with co-defendants, defendant could not claim that co-defendant's motions were not attributable to defendant's self.  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.

  Presumption of prejudice arising from nine-month delay between indictment and trial was rebutted by the record.  1 H. App. 31, 613 P.2d 919.

  To determine whether right to speedy trial has been denied, a balancing test is used; factors that go into such test.  1 H. App. 121, 615 P.2d 109.

  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 284.

  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.