Following the suggestion of the Model Penal Code,[1] this Code allows the court to dismiss de minimis infractions of the law. An obvious example of an area where such discretion might appropriately be exercised is the field of minor sex offenses, where a rejected partner might seek revenge through the penal process.

While it has been claimed that the determination of whether the defendant's conduct is "within a customary license or tolerance," or caused harm "to an extent too trivial to warrant the condemnation of conviction," will vary not only on the merits of the case but according to the differing inclinations of judges, the answer does not lie, as it has been suggested, in requiring the prosecutor's consent.[2] The prosecutor has exercised the prosecutor's prosecutorial discretion by bringing the charge against the defendant. Furthermore, prosecutors, like judges, differ in their assessment of the same standards.

Previous Hawaii law did not have a provision permitting exercise of judicial discretion in cases of de minimis infractions.

The Proposed Code provided that: "The court shall dismiss a prosecution" if it makes one or more of the relevant findings set forth in subsections (1)(a), (1)(b), and (1)(c). The Legislature deleted the mandatory "shall" and inserted in lieu thereof the permissive "may", in order "to make the court's power to dismiss a prosecution discretionary upon the finding that the conduct constituted a de minimis infraction. It is your Committee's intent to give the courts broad discretion in this matter." Conference Committee Report No. 2 (1972).

Before the section can be applied, all the relevant facts bearing upon defendant's conduct and the nature of the attendant circumstances regarding commission of the offense should be shown to and considered by the judge, State v. Park, 55 H. 610, 525 P.2d 586.

Section is not unconstitutional on ground that it contravenes doctrine of separation of power. Id.

Application to prosecution under §712-1243. 61 H. 291, 602 P.2d 933.

Traffic in narcotics not de minimis. 63 H. 77, 621 P.2d 364.

Defendant's prosecution for custodial interference in the second degree under §707-727 should have been dismissed as too trivial to warrant condemnation of conviction. 73 H. 75, 828 P.2d 269.

Where defendant’s possession of .001 grams of methamphetamine did not threaten the harm sought to be prevented by §712-1243, trial court did not abuse discretion by determining that amount of methamphetamine was de minimus under this section. 92 H. 130, 988 P.2d 195.

As defendant's striking of husband did actually cause harm sought to be prevented by §709-906, no abuse of discretion where trial court holds that infraction not too trivial to warrant the condemnation of conviction under this section. 79 H. 419 (App.), 903 P.2d 723.

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1. M.P.C. §2.13.

2. See Kuh, A Prosecutor Considers the Model Penal Code, 63 Colum. L. Rev. 608, 628 (1963).