Report Title:

Felony Prosecution; Information

Description:

Sets forth a procedure for the prosecution of class C felonies via information. Allows for depositions of witnesses when prosecution is via information. Establishes a task force to study alternatives in criminal charging procedures.

HOUSE OF REPRESENTATIVES

H.B. NO.

1512

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CRIMINAL PROCEDURE and a task force study.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the constitutional amendment ratified in the 2002 general election relating to allowing criminal prosecution to be initiated by information (direct charging) instead of indictment needs to be clarified by statutory enactment to limit potentially unconstitutional issues.

The justification for direct charging is to avoid the difficulties for witnesses and expense of grand juries and preliminary hearings by bringing a defendant directly to trial on the basis of information provided by prosecutors. However, this opens the possibility of abuse unless implementing legislation provides sufficient safeguards.

Although the constitutional amendment is now the subject of litigation, the purpose of this Act is to balance the rights of defendants against the need to expeditiously and efficiently prosecute crimes by:

(1) Limiting information prosecution to class C felonies;

(2) Requiring known exculpatory evidence to be disclosed in the information exhibits;

(3) Allowing the accused to depose witnesses to prepare a defense; and

(4) Creating a task force to study alternatives in criminal charging procedures.

The purpose of this Act is to enact implementing legislation as required by the recently passed constitutional amendment to article I, section 10, of the Hawaii constitution.

SECTION 2. Chapter 806, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§806- Class C felonies; prosecution by information. (a) An offense designated as a class C felony may be prosecuted by written information.

(b) The information shall be signed by a legal prosecuting officer and shall be filed in the circuit court. The legal prosecuting officer shall attach to the information, exhibits that demonstrate the existence of probable cause to believe that the offense or offenses charged in the information have been committed and that the defendant committed the offense or offenses. The exhibits may include affidavits sworn to before the legal prosecuting officer, including documents, photographs, recordings, or other materials or copies thereof. The exhibits shall include any evidence of a clearly exculpatory nature known to exist at the time of filing.

(c) The court shall review the information and its exhibits to determine whether there is probable cause to believe that the defendant committed the offense or offenses charged. If the court determines that there is probable cause to believe that the defendant committed the offense or offenses charged, the court shall set bail and direct the clerk to issue a warrant for the arrest of the defendant.

(d) The defendant may move to dismiss the information on the grounds that the information and its attachments do not demonstrate the existence of probable cause to believe that the offense or offenses charged have been committed or that the defendant committed the offense or offenses. The court shall schedule a prompt hearing on the motion.

(e) At the hearing under subsection (d), the information and all its attachments shall be presented to the court. The defendant may call witnesses and may introduce evidence bearing on the question of probable cause to charge the defendant. The court, in its discretion, may permit the State to call witnesses, introduce evidence, or otherwise supplement the exhibits appended to the information.

(f) After the hearing under subsection (d), the court shall determine from an examination of the information and its attachments, and in light of any evidence presented at the hearing, whether there exists probable cause to believe that the offense or offenses charged have been committed and that the defendant committed the offense or offenses. A finding of the existence of probable cause may be based in whole or in part upon hearsay evidence and evidence that may be ruled inadmissible at trial.

(g) For the purposes of this section, "legal prosecuting officer" means the attorney general, prosecuting attorney, deputy attorney general, deputy prosecuting attorney, or a person designated and authorized by the attorney general or prosecuting attorney to act as a deputy attorney general or deputy prosecuting attorney.

§806- Depositions in cases prosecuted by information. (a) Any time after the filing of the information and without regard to special circumstances of the case as provided in rule 15(a) of the Hawaii rules of penal procedure, a party to the criminal proceeding may take the deposition upon oral examination of any person who may be a witness in the case. Rule 15(b) of the Hawaii rules of penal procedure shall apply as to notice. Upon request by a party, the court shall issue a subpoena to compel attendance by a witness. In all cases, including those involving multiple defendants, no person shall be deposed more than once, except where all parties consent, or by order of the court where good cause is shown. No deposition shall be taken of a party defendant without the defendant's consent. Nothing shall preclude a witness from asserting the right against self-incrimination provided by law. A witness refusing to comply with a duly served subpoena shall be subject to appropriate sanctions by the court.

(b) The defendant, without leave of court, may depose any possible witness identified in the materials disclosed by the prosecution pursuant to rule 16 of the Hawaii rules of penal procedure. The prosecution, without leave of court, may depose any witness disclosed by the defendant as witnesses to be called at trial or a hearing.

(c) The deposition of a witness residing in the circuit in which trial is to take place shall be taken in the building in which trial is to be held, such other location agreed upon by the parties, or a location designated by the court. Depositions of witnesses residing outside the circuit in which trial is to take place shall be taken in a court reporter's office in the circuit and state in which the witness resides, such other location agreed upon by the parties, or a location designated by the court.

(d) Law enforcement officers shall appear for deposition without subpoena, upon written notice delivered to the address of the law enforcement agency or department, or to an address designated by the law enforcement agency or department, five days prior to the date of deposition. Law enforcement officers who fail to appear for deposition after notice is given as required under this subsection shall be subject to appropriate sanctions by the court.

(e) The taking of depositions shall be in accordance with rule 15(d) of the Hawaii rules of penal procedure. Depositions shall be used in accordance with rules 15(e), (f), and (g) of the Hawaii rules of penal procedure. Except as otherwise provided in this section, the procedure for taking a deposition, the scope of the deposition examination, and the issuance of a subpoena (excluding subpoena duces tecum) for deposition, shall be as provided by the Hawaii rules of civil procedure.

(f) The costs of deposing a witness identified in the exhibits attached in support of a written information shall be borne by the prosecution."

SECTION 3. Section 641-13, Hawaii Revised Statutes, is amended to read as follows:

"§641-13 By State in criminal cases. An appeal may be taken by and on behalf of the State from the district or circuit courts to the supreme court, subject to chapter 602, in all criminal cases, in the following instances:

(1) From an order or judgment quashing, setting aside, or sustaining a motion to dismiss, any indictment, information, or complaint or any count thereof;

(2) From an order or judgment, sustaining a special plea in bar, or dismissing the case where the defendant has not been put in jeopardy;

(3) From an order granting a new trial;

(4) From an order arresting judgment;

(5) From a ruling on a question of law adverse to the State where the defendant was convicted and appeals from the judgment;

(6) From the sentence, on the ground that it is illegal;

(7) From a pretrial order granting a motion for the suppression of evidence, including a confession or admission, or the return of property in which case the intermediate appellate court or the supreme court, as the case may be, shall give priority to such an appeal and the order shall be stayed pending the outcome of the appeal;

(8) From an order denying a request by the State for protective order for nondisclosure of witness for their personal safety under Rule 16(e)(4) of the Hawaii [Rules] rules of [Penal Procedure,] penal procedure, in which case the intermediate appellate court or the supreme court, as the case may be, shall give priority to such appeal and the order shall be stayed pending outcome of such appeal;

(9) From a judgment of acquittal following a jury verdict of guilty."

SECTION 4. Section 806-6, Hawaii Revised Statutes, is amended to read as follows:

"§806-6 Use of; furnishing of copy. In all cases of offenses against the laws of the State brought in the first instance in a court of record, the accused shall be arraigned and prosecuted upon an information, complaint, or indictment as soon after the commitment of the offense of which [he] the person is accused as may be expedient.

In all felony cases [of felony], the defendant shall be furnished before arraignment with a copy of the information and all attachments appended to it, the complaint, or the indictment found against [him.] the defendant, as applicable."

SECTION 5. (a) The judicial council of Hawaii, established pursuant to section 601-4, Hawaii Revised Statutes, shall convene a task force to engage in a comprehensive review of criminal charging procedures for the purpose of recommending to the legislature amendments, if any, to existing procedures.

The task force shall serve without compensation and its membership shall be a balanced representation of interested parties in the community. The task force shall include representatives of:

(1) The judiciary;

(2) The department of the attorney general;

(3) The departments of the county prosecuting attorneys;

(4) The office of the public defender;

(5) The county police departments;

(6) Private citizens interested in criminal law and civil liberties; and

(7) Attorneys in private practice involving the criminal law.

(b) In addition to a review of existing criminal charging procedures in Hawaii, the task force shall review:

(1) Differing charging procedures throughout the nation;

(2) Applicable state statutes and rules from jurisdictions other than Hawaii;

(3) Cost factors involved with various charging procedures used in other jurisdictions;

(4) Evaluations of statutes and charging procedures and the anticipated impact of enacting similar laws in Hawaii; and

(5) Other relevant issues as deemed appropriate for discussion by the task force.

(c) Findings shall provide the legislature with factual information, the national experience, and "best practices" for the purpose of assisting the legislature in determining and developing the most appropriate criminal charging procedures for Hawaii. Findings shall specifically include:

(1) A compilation of the relevant Hawaii statutes and rules;

(2) A compilation of the number of cases in each circuit of Hawaii affected by the proposed change in charging procedure;

(3) A compilation of statutes and charging practices in other jurisdictions; and

(4) An evaluation of statutes and charging practices and their impact on the administration of justice.

The task force shall report its findings and recommendations to the legislature no later than twenty days before the convening of the regular session of 2004.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:

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