§571-22  Waiver of jurisdiction; transfer to other courts.  (a)  The court may waive jurisdiction and order a minor or adult held for criminal proceedings after full investigation and hearing where the person during the person's minority, but on or after the person's sixteenth birthday, is alleged to have committed an act that would constitute a felony if committed by an adult, and the court finds that:

     (1)  There is no evidence the person is committable to an institution for individuals with intellectual disabilities or the mentally ill;

     (2)  The person is not treatable in any available institution or facility within the State designed for the care and treatment of children; or

     (3)  The safety of the community requires that the person be subject to judicial restraint for a period extending beyond the person's minority.

     (b)  The court may waive jurisdiction and order a minor or adult held for criminal proceedings if, after a full investigation and hearing, the court finds that:

     (1)  The person during the person's minority, but on or after the person's fourteenth birthday, is alleged to have committed an act that would constitute a felony if committed by an adult and either:

          (A)  The act resulted in serious bodily injury to a victim;

          (B)  The act would constitute a class A felony if committed by an adult; or

          (C)  The person has more than one prior adjudication for acts that would constitute felonies if committed by an adult; and

     (2)  There is no evidence the person is committable to an institution for individuals with intellectual disabilities or the mentally ill.

     (c)  The factors to be considered in deciding whether jurisdiction should be waived under subsection (a) or (b) are as follows:

     (1)  The seriousness of the alleged offense;

     (2)  Whether the alleged offense was committed in an aggressive, violent, premeditated, or wilful manner;

     (3)  Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

     (4)  The desirability of trial and disposition of the entire offense in one court when the minor's associates in the alleged offense are adults who will be charged with a crime;

     (5)  The sophistication and maturity of the minor as determined by consideration of the minor's home, environmental situation, emotional attitude, and pattern of living;

     (6)  The record and previous history of the minor, including previous contacts with the family court, other law enforcement agencies, courts in other jurisdictions, prior periods of probation to the family court, or prior commitments to juvenile institutions;

     (7)  The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the minor (if the minor is found to have committed the alleged offense) by the use of procedures, services, and facilities currently available to the family court; and

     (8)  All other relevant matters.

     (d)  The court may waive jurisdiction and order a minor or adult held for criminal proceedings if, after a full investigation and hearing, the court finds that:

     (1)  The person during the person's minority is alleged to have committed an act that would constitute murder in the first degree or second degree or attempted murder in the first degree or second degree if committed by an adult; and

     (2)  There is no evidence the person is committable to an institution for individuals with intellectual disabilities or the mentally ill.

     (e)  Transfer of a minor for criminal proceedings terminates the jurisdiction of the court over the minor with respect to any subsequent acts that would otherwise be within the court's jurisdiction under section 571-11(1) and thereby confers jurisdiction over the minor to a court of competent criminal jurisdiction.

     (f)  If criminal proceedings instituted under subsection (a), (b), or (d) result in an acquittal or other discharge of the minor involved, no petition shall be filed thereafter in any family court based on the same facts as were alleged in the criminal proceeding.

     (g)  A minor shall not be subject to criminal prosecution based on the facts giving rise to a petition filed under this chapter, except as otherwise provided in this chapter.

     (h)  Where the petition has been filed in a circuit other than the minor's residence, the judge, in the judge's discretion, may transfer the case to the family court of the circuit of the minor's residence.

     (i)  When a petition is filed bringing a minor before the court under section 571-11(1) and (2), and the minor resides outside of the circuit, but within the State, the court, after a finding as to the allegations in the petition, may certify the case for disposition to the family court having jurisdiction where the minor resides.  Thereupon, the court shall accept the case and may dispose of the case as if the petition was originally filed in that court.  Whenever a case is so certified, the certifying court shall forward to the receiving court certified copies of all pertinent legal and social records.

     (j)  If the court waives jurisdiction pursuant to subsection (b) or (d), the court also may waive its jurisdiction with respect to any other felony charges arising from the same episode to the charge for which the minor was waived. [L 1965, c 232, pt of §1; Supp, §333-13; HRS §571-22; am L 1970, c 81, §2; am L 1972, c 2, pt of §33; am L 1974, c 148, §2; am L 1980, c 303, §7(4); am L 1981, c 222, §1; am L 1987, c 182, §1; am L 1997, c 318, §2; am L 1999, c 139, §1; am L 2011, c 220, §16]

 

Rules of Court

 

  Transfer to criminal court, see HFCR rule 129.

 

Law Journals and Reviews

 

  Waiver of jurisdiction; procedural requirements, statement of reasons.  Haw. Supp, 5 HBJ, no. 1, at 29 (1967).

  In the Best Interests of the Child:  Juvenile Justice or Adult Retribution?  23 UH L. Rev. 341 (2000).

  Risky Business:  Assessing Dangerousness in Hawai`i.  24 UH L. Rev. 63 (2001).

 

Case Notes

 

  Order waiving jurisdiction under subsection (a) is appealable.  50 H. 537, 444 P.2d 459 (1968).

  Procedure followed by court in waiving jurisdiction held valid.  50 H. 620, 446 P.2d 564 (1968).

  Pending appeal of order waiving jurisdiction, stay of order should be granted only after weighing opposing interests.  57 H. 413, 558 P.2d 483 (1976).

  A waiver proceeding is primarily dispositional, so that full procedural protections appropriate to an adjudication of guilt do not apply.  58 H. 522, 574 P.2d 119 (1978).

  "Act constituting felony if committed by adult" construed.  59 H. 456, 583 P.2d 337 (1978).

  Waiver provision is not void for vagueness but requires a hearing, counsel, and statement of reasons by court.  Defendant must appeal the order prior to circuit court trial.  60 H. 527, 592 P.2d 422 (1979).

  Dismissal of indictment required where jurisdiction waived without hearing.  61 H. 12, 594 P.2d 1069 (1978).

  Preponderance of evidence standard in §571-41 does not apply to waiver proceedings.  For purposes of waiver, charges are presumed to be true.  Ultimate concern is whether evidence adduced justifies waiver.  61 H. 48, 594 P.2d 1084 (1979).

  All waiver orders hereafter filed must conform to family court rule 129 requiring specific findings.  61 H. 167, 598 P.2d 176 (1979).

  Statement of reasons supporting decision to waive, sufficiency.  61 H. 167, 598 P.2d 176 (1979).

  Where waiver of jurisdiction is invalid, proceedings held in circuit court are void.  61 H. 185, 599 P.2d 290 (1979).

  Family court's findings in a waiver decision must be supported by substantial evidence.  61 H. 364, 604 P.2d 276 (1979).

  Compliance with "full investigation and hearing" required.  61 H. 561, 606 P.2d 1326 (1980).

  Waiver petitions taken "under advisement" must be acted upon within a reasonable time.  61 H. 561, 606 P.2d 1326 (1980).

  Family court failed to act in accordance with its powers by proceeding to hear waiver petition without taking steps to enable completion of "full and fair investigation".  66 H. 516, 668 P.2d 25 (1983).

  Minor not entitled to probable cause hearing before family court jurisdiction waived.  67 H. 466, 691 P.2d 1163 (1984).

  As section clearly and unambiguously does not require the family court to consider the subsection (c) factors when waiving jurisdiction under subsection (d), family court's failure to expressly consider the subsection (c) factors did not constitute an abuse of discretion.  94 H. 315, 13 P.3d 324 (2000).

  Based both on its plain language and the absence of legislative history indicating otherwise, subsection (a) is clearly disjunctive in nature, requiring that the family court find only one of three factors as a precondition to waiving jurisdiction over a minor.  102 H. 326, 76 P.3d 569 (2003).

  Record indicated that full investigation was held and all findings necessary to sustain waiver were made and supported.  1 H. App. 226, 617 P.2d 826 (1980).

  Where appellant presented danger to community, there was no error in refusing stay of waiver pending appeal.  1 H. App. 226, 617 P.2d 826 (1980).

  Purpose of family court waiver hearing is not to determine whether minor committed offense alleged or even to determine probable cause.  Presumption that charges are true does not violate due process.  1 H. App. 243, 617 P.2d 830 (1980).

  Where family court has considered all the factors in its determination to waive and there is no manifest abuse of discretion, appellate court is not required to determine or question the weight attributed to the various factors.  1 H. App. 301, 618 P.2d 1150 (1980).

  A minor who is "treatable" may still be waived  for the "safety of the community".  1 H. App. 611, 623 P.2d 1262 (1981).

  Minor whose acts are offenses against property may still pose a threat to the "safety of the community".  1 H. App. 611, 623 P.2d 1262 (1981).

  Where family court declined to waive jurisdiction over person, deciding that safety of community did not require that person continue under judicial restraint for period extending beyond person's minority and that no court could commit person to adult correctional facility, but thereafter committed person to adult correctional facility, court unlawfully violated its prior order declining to waive jurisdiction.  86 H. 517 (App.), 950 P.2d 701 (1997).

  Family court did not err at hearing on petition to waive family court jurisdiction over defendant when it admitted into evidence a police report without affording defendant the opportunity to call, confront and cross-examine the percipient witnesses to the offense named in the police report where defendant did not show what defendant's cross-examination of the witnesses might have revealed; thus, no abuse of discretion in family court waiving jurisdiction over defendant.  107 H. 259 (App.), 112 P.3d 745 (2005).

 

 

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