[ARTICLE V.--1791]

 

     No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.

 

Attorney General Opinions

 

  Student regulations at state universities are subject to the vagueness standard but do not require the same specificity required of criminal statutes.  Att. Gen. Op. 71-9.

  Section 486H-10 prohibiting manufacturers and jobbers of petroleum products from operating a retail service station for retail sale of petroleum products did not violate eminent domain clause of federal constitution.  Att. Gen. Op. 95-4.

 

Law Journals and Reviews

 

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

  Hawaii's Noncommitment to Civil Commitment:  Out of Sight, Out of Mind, Out of Theory.  13 HBJ No. 4 Winter 1978, pg. 40.

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

  Fitness to Proceed:  Compassion or Prejudice?  II HBJ No. 13, at pg. 135.

  Res Judicata and Collateral Estoppel in Hawaii:  One of These Things is Not Like The Other.  III HBJ No. 13, at pg. 1.

  Shoreline Setback Regulations and the Takings Analysis.  13 UH L. Rev. 1.

  The Hostile Work Environment:  Are Federal Remedies Hostile, Too?  13 UH L. Rev. 537.

  The Lum Court, Land Use, and the Environment:  A Survey of Hawai‘i Case Law 1983 to 1991.  14 UH L. Rev. 119.

  Administering Justice or Just Administration:  The Hawaii Supreme Court and the Intermediate Court of Appeals.  14 UH L. Rev. 271.

  The Protection of Individual Rights Under Hawai‘i's Constitution.  14 UH L. Rev. 311.

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

  Aliens, Resident Aliens, and U.S. Citizens in the Never-Never Land of the Immigration and Nationality Act.  15 UH L. Rev. 61.

  Even a War Has Some Rules:  The Supreme Court Puts the Brakes on Drug-Related Civil Forfeitures.  16 UH L. Rev. 493.

  The Reassertion of Native Hawaiian Gathering Rights Within The Context of Hawai‘i's Western System of Land Tenure.  17 UH L. Rev. 165.

  Dolan v. City of Tigard:  Individual Property Rights v. Land Management Systems.  17 UH L. Rev. 193.

  State v. Lessary:  The Hawaii Supreme Court's Contribution to Double Jeopardy Law.  17 UH L. Rev. 269.

  A Biologic Argument for Gay Essentialism-Determinism:  Implications for Equal Protection and Substantive Due Process.  18 UH L. Rev. 571.

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

  Adarand Constructors Inc. v. Pena:  A Color-blind Remedy Eliminating Racial Preferences.  18 UH L. Rev. 939.

  A Constitutionally Valid Justification for the Enactment of No-Growth Ordinances:  Integrating Concepts of Population Stabilization and Sustainability.  19 UH L. Rev. 93.

  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.

  Hawai‘i Constitution, Article XI, Section 1:  The Conservation, Protection, and Use of Natural Resources.  19 UH L. Rev. 177.

  Babbitt v. Youpee:  Allotment and the Continuing Loss of Native American Property and Rights to Devise.  19 UH L. Rev. 265.

  The Manoa Valley Special District Ordinance:  Community-Based Planning in the Post-Lucas Era.  19 UH L. Rev. 449.

  The Japanese American Cases and the Vagaries of Constitutional Adjudication in Wartime:  An Institutional Perspective.  19 UH L. Rev. 649.

  Critical Excavations:  Law, Narrative, and the Debate on Native American and Hawaiian "Cultural Property" Repatriation.  20 UH L. Rev. 261.

  Justice Ruth Bader Ginsburg And Gender Discrimination.  20 UH L. Rev. 699.

  The Jurisdictional Limits of Federal Criminal Child Pornography Law.  21 UH L. Rev. 73.

  A New Segregation?  Race, Rice v. Cayetano, and the Constitutionality of Hawaiian-Only Education and the Kamehameha Schools.  23 UH L. Rev. 109.

  IOLTA in the New Millenium:  Slowly Sinking Under the Weight of the Takings Clause.  23 UH L. Rev. 221.

  "If a Policeman Must Know the Constitution, Then Why Not a Planner?"  A Constitutional Challenge of the Hawai‘i Public Access Statute.  23 UH L. Rev. 409.

  Right Against Self-Incrimination v. Public Safety:  Does Hawai‘i's Sex Offender Treatment Program Violate the Fifth Amendment?  23 UH L. Rev. 825.

  Is Agricultural Land in Hawai‘i "Ripe" for a Takings Analysis?  24 UH L. Rev. 121.

  Lucas Takings:  Why Investment-Backed Expectations are Irrelevant when Applying the Categorical Rule.  24 UH L. Rev. 147.

  The Defense of Marriage Act:  Sex and the Citizen.  24 UH L. Rev. 279.

  Takings:  An Introduction and Overview.  24 UH L. Rev. 441.

  Transcript of the University of Hawai‘i Law Review Symposium:  Property Rights After Palazzolo.  24 UH L. Rev. 455.

  The Latest Take on Background Principles and the States' Law of Property After Lucas and Palazzolo.  24 UH L. Rev. 497.

  The Regulatory Takings Notice Rule.  24 UH L. Rev. 533.

  Time, Space, and Value in Inverse Condemnation:  A Unified Theory for Partial Takings Analysis.  24 UH L. Rev. 589.

  Facial Takings Claims Under Agins-Nectow:  A Procedural Loose End.  24 UH L. Rev. 623.

  Moratoria and Musings on Regulatory Takings:  Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency.  25 UH L. Rev. 279.

  Tahoe Sierra:  Much Ado About--What?  25 UH L. Rev. 295.

  Some Permanent Problems with the Supreme Court's Temporary Regulatory Takings Jurisprudence.  25 UH L. Rev. 325.

  Rules for the Relevant Parcel.  25 UH L. Rev. 353.

  An Analysis of Tahoe-Sierra and Its Help and Hindrance in Understanding the Concept of a Temporary Regulatory Taking.  25 UH L. Rev. 417.

  The Constitutionality of a Naked Transfer:  Mandatory Lease-to-Fee Conversion's Failure To Satisfy a Requisite Public Purpose in Hawai‘i Condominiums.  25 UH L. Rev. 561.

  Arrow of Time:  Vested Rights, Zoning Estoppel, and Development Agreements in Hawai‘i.  27 UH L. Rev. 17.

  Price Controls in Paradise:  Foreshadowing the Legal and Economic Consequences of Hawai‘i's Gasoline Price Cap Law.  27 UH L. Rev. 549.

  A Public Lecture by Joseph L. Sax, Environment and Its Mortal Enemy:  The Rise and Decline of the Property Rights Movement.  28 UH L. Rev. 7.

  Dolan v. City of Tigard and the Distinction Between Administrative and Legislative Exactions:  "A Distinction Without a Constitutional Difference".  28 UH L. Rev. 139.

  Kelo v. City of New London:  Of Planning, Federalism, and a Switch in Time.  28 UH L. Rev. 327.

  The Overreaching Use of Eminent Domain and the Police Power After Kelo.  28 UH L. Rev. 349.

  Kelo:  A Case Rightly Decided.  28 UH L. Rev. 365

  Text-Mess:  There is No Textual Basis for Application of the Takings Clause to the States.  28 UH L. Rev. 373.

  Re-Defining Public Use:  Kelo v. City of New London.  28 UH L. Rev. 485.

  The Role and Content of the Character of the Governmental Action Factor in a Partial Regulatory Takings Analysis.  29 UH L. Rev. 437.

  Maui's Residential Workforce Housing Policy:  Finding the Boundaries of Inclusionary Zoning.  30 UH L. Rev. 447.

  Constitutionalizing the Right of Property:  The U.S., England and Europe.  31 UH L. Rev. 1.

  Do We Need to Impair or Strengthen Property Rights in Order to "Fulfill Their Unique Role"?  A Response to Professor Dyal-Chand.  31 UH L. Rev. 423 (2009).

  From Sea to Rising Sea:  How Climate Change Challenges Coastal Land Use Laws.  33 UH L. Rev. 289 (2010).

 

Case Notes

 

Generally.

  Exhibition of individual to jury in criminal prosecution not per se improper.  81 H. 15, 911 P.2d 735.

 

Defendant's out-of-court statements.

  Exclusionary rule not applicable where Miranda rights violated by foreign police in foreign country even though in violation of foreign law.  783 F.2d 1052.

  Defendant's second statement was voluntary even though it followed a previous unwarned admission.  889 F.2d 819.

  Where M.P.s allowed defendant to consume beer there was no coercion and defendant's statements were voluntary.  666 F. Supp. 1421.

  Miranda warnings not required where defendant was not in custody at the time of hospital bedside discussion.  800 F. Supp. 892.

  Although Miranda warnings properly given, where government fails to prove accuracy of defendant's written statement due to defendant's limited understanding of English, statement inadmissible.  803 F. Supp. 352.

  Defendant's waivers of defendant's Miranda rights at time of defendant's arrest and before defendant's first interview were valid; defendant's statements made after defendant made request for attorney to Canadian law enforcement officer suppressed.  888 F. Supp. 1521.

  Upon new trial after reversal, doctrine of Miranda v. Arizona, 384 U.S. 436, applicable, even though statements taken, and first trial held before Miranda.  49 H. 504, 506, note 3, 421 P.2d 305.

  Doctrine of Miranda v. Arizona, 384 U.S. 436, inapplicable to defendant tried before that case decided.  49 H. 522, 532, 423 P.2d 438.

  Confession obtained while defendant in custody after being retaken following an escape not voluntary when defendant previously had been found by a psychiatric commission to be suffering from a major mental illness, and upon consideration of other circumstances.  50 H. 42, 430 P.2d 330.

  Where Miranda inapplicable, question is whether confession was given "freely and voluntarily without any compelling influences".  50 H. 42, 430 P.2d 330.

  Waiver of constitutional protection.  51 H. 260, 457 P.2d 505.

  In application of Miranda, the test is whether the words used give a clear, understandable warning of accused's rights.  56 H. 428, 539 P.2d 1200.

  Miranda applies only to custodial interrogation.  58 H. 94, 564 P.2d 1271; 61 H. 124, 596 P.2d 777.

  Voluntary statement that didn't result from custodial interrogation is not restricted by Miranda.  58 H. 323, 568 P.2d 1200; 66 H. 499, 666 P.2d 592.

  Custodial interrogation.  59 H. 357, 581 P.2d 752; 64 H. 479, 643 P.2d 541; 67 H. 126, 681 P.2d 553.

  Without Miranda warnings, statements made during custodial interrogation must be excluded although they may be wholly voluntary; volunteered confession independent of interrogation is outside of Miranda rule.  61 H. 356, 604 P.2d 45.

  Defendant not entitled to Miranda warnings before being questioned by probation officer.  61 H. 571, 606 P.2d 1332.

  Circumstances indicate that interrogation was not custodial interrogation.  62 H. 259, 614 P.2d 386; 2 H. App. 462, 634 P.2d 421.

  Roadside questioning to obtain information to issue traffic citation not a "custodial interrogation".  68 H. 184, 706 P.2d 1305.

  Miranda rights violated where defendant was questioned after polygraph examination.  70 H. 351, 772 P.2d 113.

  No custodial interrogation prior to arrest where police officer lacking probable cause to arrest temporarily detained defendant  for on-the-scene questioning in open view.  73 H. 41, 828 P.2d 805.

  Right to remain silent waived where defendant, after being properly given Miranda warnings and additionally being told that everything defendant said was "on the record", initiated dialogue with officer.  80 H. 439, 911 P.2d 74.

  Defendant's response to police matron's question during strip search was inadmissible, absent Miranda warnings.  1 H. App. 430, 620 P.2d 263.

  Validity of waiver of rights; standard of review.  1 H. App. 625, 623 P.2d 1271.

  No right to suppress unsolicited, spontaneous, and voluntary statements made while in custody.  3 H. App. 107, 643 P.2d 807.

  Confession not tainted by earlier confession which had been obtained illegally.  4 H. App. 248, 665 P.2d 181.

  Question to defendant "do you know why you are being detained?" was interrogation because officer should have known that it was reasonably likely to elicit an incriminating response from defendant.  85 H. 171 (App.), 938 P.2d 1190.

  Defendant voluntarily, knowingly, and intelligently waived Miranda rights where: (1) defendant initiated communication with agent that defendant had changed defendant's mind and wanted to give a statement; (2) agent re-presented and reviewed advice-of-constitutional-rights form with defendant which defendant signed, signifying defendant’s waiver of rights, including right to an attorney; and (3) during recorded interview, defendant acknowledged making the statement of defendant’s own free will, without any force, promises, threats, or coercion by agent. 128 H. 328 (App.), 289 P.3d 964 (2012).

 

Due process.

  See also notes to Amendment 14.

  In absence of exigent circumstances, the due process clause of the Fifth Amendment prohibits the government in a civil forfeiture case from seizing real property without first affording the owner notice and an opportunity to be heard.  510 U.S. 43.

  Trial court's finding that defendants had actual notice of trespassing prohibition is not clearly erroneous and does not violate due process.  582 F.2d 1194.

  Defendant was not denied due process by alleged prosecutorial misconduct before grand jury.  614 F.2d 214.

  Interest in receiving medical care at Hale Mohalu leprosy facility may be a property interest protected by due process clause if more than a "unilateral expectation".  616 F.2d 410.

  Federal employee not denied due process because disciplinary action was based on charges in notice, and even though investigative officer asked questions about pending charges.  625 F.2d 285.

  Only where defendant alleges governmental conduct "of the most shocking and outrageous kind" will due process be violated and court required to divest itself of jurisdiction.  625 F.2d 308.

  Use for impeachment purposes of defendant's silence at time of arrest and after receiving Miranda warnings violates due process.  639 F.2d 466.

  No legitimate entitlement to continued employment obtained through deliberate material misrepresentation.  649 F.2d 748.

  Range of due process rights at sentencing not as extensive as that at trial.  694 F.2d 200.

  Forfeiture rules under federal Food, Drug, and Cosmetic Act did not violate.  715 F.2d 1339.

  Not violated by jury instruction's connection between extensive use of currency and wilful criminal tax activity.  Not violated by extrajudicial communication between juror and prosecutor regarding matter unrelated to trial.  730 F.2d 1292.

  Where legal arguments only are involved, and the material issues have been briefed, no requirement for oral argument covering all legal theories.  738 F.2d 1455.

  Defendant's unrebutted allegations of prejudice from absence of counsel at previous trial sufficient to warrant dismissal of indictment on due process grounds.  741 F.2d 1123.

  Procedures under which defendant sentenced as second offender complied with requirements.  750 F.2d 787.

  Not violated by magistrate-conducted voir dire in criminal case without defendant's consent.  760 F.2d 999.

  Where Miranda inapplicable because confession obtained by foreign police, trustworthiness of confession must still satisfy due process.  783 F.2d 1052.

  Not violated by issuance, without opportunity for hearing, and enforcement of bar letter excluding defendant from military base.  783 F.2d 1484.

  Test of whether prison guard's use of force against inmate denies due process.  795 F.2d 780.

  Court's finding that guilty plea was knowing rebuts claim that defense counsel's erroneous advice rendered plea "unintelligent".  800 F.2d 861.

  Defendant could rely on appellate court's decision in repeating the same conduct, before the appellate decision was reversed by the Supreme Court.  830 F.2d 985.

  Not violated where probationer was not given notice prior to drug testing.  831 F.2d 176.

  No sham prosecution by federal authorities if there was sufficient independent federal involvement.  831 F.2d 181.

  An acquittal based on a ruling that the government's evidence is legally insufficient to sustain a conviction is not appealable.  833 F.2d 135.

  Controversy was not ripe.  887 F.2d 215.

  Not violated by sentencing court's reliance on evidence at co-defendant's trial.  909 F.2d 363.

  Not offended by exercise of jurisdiction over defendants since sufficient nexus existed where vessel with marijuana off-loaded from Panamanian freighter was ultimately bound for U.S. 946 F.2d 608.

  Violated by government's seizure of owner's home pursuant to federal Controlled Substances Act without preseizure notice or hearing.  971 F.2d 1376.

  Supervised releasee's due process right of confrontation violated.  984 F.2d 308.

  Violated by prosecutor's comments during closing rebuttal argument on defendants' postarrest silence.  998 F.2d 412.

  Federal maritime drug enforcement statute's application to defendants not unconstitutional where there was sufficient nexus between defendant crew members and the U.S. as ship's drug cargo was destined for the U.S.  35 F.3d 426.

  Federal wastewater treatment permit not unconstitutionally vague where defendants were knowledgeable in wastewater field, could be expected to have understood what the permit meant, and took considerable pains to conceal their illegal dumping activities.  35 F.3d 1275.

  Not violated by rule that, for purposes of criminal history calculation, state conviction for conduct which occurred after defendant's federal offense, but for which defendant was sentenced before defendant's sentencing on the federal offense, is counted as a prior sentence.  44 F.3d 749.

  Not violated by a court's entry of default judgment or other sanction against a party for refusal to cooperate with discovery and if party is later held to the consequences of such judgment in a bankruptcy discharge proceeding.  47 F.3d 365.

  Employee's contention that employee's designation as a witness in IRS summons to obtain handwriting exemplars was a calculated maneuver to circumvent employee's Fourth Amendment privilege against unreasonable searches and seizures and employee's due process rights under both Fifth Amendment and IRS regulations, rejected.  94 F.3d 1342.

  Where appellants contended that restrictions on organizations that accept Legal Services Corporation funds violated equal protection and due process rights protected by the U.S. Constitution, appellants failed to establish their standing to raise the rights of their clients.  145 F.3d 1017.

  Defendant failed to establish the actual, nonspeculative prejudice from government's delay in bringing third superseding indictment that is necessary to prove a Fifth Amendment violation based upon excessive preindictment delay.  322 F.3d 1157.

  Department of Interior's regulations acknowledging the federally recognized status of Indian tribes, which excluded native Hawaiians, did not violate the Fifth Amendment under rational basis scrutiny.  386 F.3d 1271.

  Universal condemnation of foreign defendant's conduct and the existence of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation provided foreign defendant with all the notice due process required that foreign defendant could be prosecuted in the United States.  525 F.3d 709.

  Person on supervised release's interest in cross-examining the laboratory technician who handled and tested the person's urine sample so outweighed the government's interest in not producing the witness that the admission of the hearsay evidence violated the person's Fifth Amendment constitutional right to due process where, inter alia, the test report itself stated the sample was "dilute".  526 F.3d 543.

  Delay of six months between date of offense and indictment held not excessive.  316 F. Supp. 892.

  Re court's relocation of private land boundary without due process.  402 F. Supp. 95.

  Forfeiture proceeding satisfied due process rights of purchaser of property, who was unaware of prior owner's tax debt.  429 F. Supp. 1002.

  Congress had a rational basis for preempting state health insurance laws and did not violate due process.  442 F. Supp. 695.

  Nonjudicial punishment by way of Captain's Mast procedure does not deny due process.  466 F. Supp. 257.

  Law providing for affidavit method of postjudgment garnishment of wages not unconstitutional.  467 F. Supp. 544.

  Determination of whether taking is for public purpose is limited to whether there is a denial of substantive due process. Statute is constitutional if:  (1) any possible rationale for the statute, expressed or not, is within state police power; and (2) statute is not arbitrary or product of legislative bad faith.  483 F. Supp. 63.

  Violated if civilians prosecuted differently than military personnel for traffic violations on military bases.  604 F. Supp. 416.

  Thirty-three month delay between alleged offense and return of indictment was not a violation of defendant's due process rights.  666 F. Supp. 1428.

  No coercion existed where, regardless of defendant's alleged hand injury and the alleged failure of Federal Bureau of Investigation agents to obtain medical care for the defendant, defendant's statements were the product of rational intellect and free will.  693 F. Supp. 2d 1200.

  Award of punitive damages for wanton, oppressive, or malicious actions did not violate due process.  728 F. Supp. 1461.

  Legislature's decision not to define statutory terms does not render such statutes unconstitutional.  751 F. Supp. 853.

  Administrative segregation of prisoner invoked due process.  751 F. Supp. 1401.

  No due process liberty interest in parole is created under §§353-68 and 353-69; inmate had due process liberty interest at stake at misconduct hearing.  795 F. Supp. 1020.

  Facts did not support a claim of either procedural due process or takings clause violation; termination of special use permits did not require compensation because they were not property interests recognized by the Fifth Amendment.  875 F. Supp. 680.

  Where defendant's phone conversations with person working at behest of FBI were voluntary, defendant's due process rights not violated.  961 F. Supp. 1398.

  Where plaintiffs filed action for temporary restraining order claiming, inter alia, that by not allowing enough time for plaintiffs to challenge the agency decision to launch the Cassini Mission, defendants violated plaintiffs' right to procedural due process, court assumed that judicial review under National Environmental Policy Act and Administrative Procedures Act was the protected right at the center of the procedural due process claim; plaintiffs had an adequate opportunity to obtain judicial review of the agency decision.  980 F. Supp. 1160.

  Motion to dismiss indictment on ground that deportation order, an essential element of crime charged (unauthorized reentry into the United States after previous deportation), was procured in a proceeding that was fundamentally unfair, granted.  107 F. Supp. 2d 1248.

  Where plaintiff protested Federal Aviation Administration requirement that plaintiff retire as air traffic controller at age fifty-six, while other air traffic controllers were allowed to work past that age, defendant's motion for partial summary judgment granted as to plaintiff's right to equal protection under the Fifth Amendment claim.  128 F. Supp. 2d 672.

  Defendant's motion to dismiss indictment denied, where defendant asserted that statute of limitations tolling provision, which provided that any time during which the person committing an offense arising under the internal revenue laws is outside the United States shall not be counted towards the limitation by law for the commencement of proceedings, violated defendant's constitutional right to travel under the Fifth Amendment.  248 F. Supp. 2d 970.

  Federal employees have no property interest in prospective payment of locality pay.  532 F. Supp. 2d 1238.

  Fifth Amendment due process clause does not apply to the states and was therefore inapplicable; even if plaintiff's due process claim is considered, plaintiff's right to due process was not violated by the enforcement of chapter 134.  548 F. Supp. 2d 1151.

  Plaintiff, a nonprofit health maintenance organization, did not state a valid due process claim, where plaintiff alleged that defendants deprived it of a liberty/property interest without due process of law when defendants removed plaintiff's "automatic eligibility conferred by federal law ... to receive a contract" regarding the QUEST expanded access program.  567 F. Supp. 2d 1238 (2008).

  Respondent argued that the involuntary civil commitment scheme under the Adam Walsh Child Protection and Safety Act is unconstitutionally vague because it does not define the key criteria that the court must find before ordering commitment under 18 U.S.C. §4248; the terms of the Act have a plain meaning that does not leave a person uncertain as to their application.  574 F. Supp. 2d 1123 (2008).

  Right not violated, where petitioner who had been convicted of money laundering was disqualified from employment by a labor union pursuant to 29 U.S.C. §504.  597 F. Supp. 2d 1113 (2009).

  No coercion existed where, regardless of defendant's alleged hand injury and the alleged failure of Federal Bureau of Investigation agents to obtain medical care for the defendant, defendant's statements were the product of rational intellect and free will.  693 F. Supp. 2d 1200 (2010).

  Law providing for service of summons on nonresident motorists by publication does not violate due process clause.  50 H. 484, 443 P.2d 155.

  Discussion of preindictment delay resulting in deprivation of due process.  53 H. 652, 500 P.2d 1171.

  Courts' construing prior land court decree was not a taking of private property even though it established a different shoreline boundary.  57 H. 585, 562 P.2d 771.

  Constitutional permissibility of lifting of bar of statute of limitations to restore a remedy previously barred.  59 H. 259, 581 P.2d 310.

  Condition of probation that defendant "refrain from company of people of questionable character" was not invalid for vagueness.  59 H. 366, 580 P.2d 1282.

  Defendant who leaves trial voluntarily waives right to be present at trial, which may continue as if defendant were present.  62 H. 309, 615 P.2d 91.

  Accused's right to a fair trial includes right to present matters in the accused's defense, and government may not by its conduct render a material witness unavailable to defendant.  63 H. 27, 620 P.2d 728; 63 H. 34, 620 P.2d 732.

  Lineup of accused and due process rights.  63 H. 354, 628 P.2d 1018.

  No violation in court's refusal to order production of letter concerning dismissal of charges against prosecution witness because no material effect on trial's outcome.  66 H. 175, 657 P.2d 1052.

  Requires that State fulfill its end of plea bargain if defendant's guilty plea based in significant degree on promised resolution of cases against defendant.  66 H. 342, 662 P.2d 1112.

  Not violated due to thirty-one month preindictment delay; a showing of memory loss alone is insufficient to demonstrate substantial prejudice.  67 H. 247, 686 P.2d 9.

  Not violated by methodology used by public utilities commission rate making proceeding.  67 H. 425, 690 P.2d 274.

  Due process denied where lessee's property seized without proper service of process, time to answer, evidence presented by lessor, and opportunity to contest case.  68 H. 466, 719 P.2d 397.

  Not violated by court's entering of judgment against defendants for violating court order.  68 H. 608, 726 P.2d 254.

  One year limitation on right to former spouse's property does not violate due process.  69 H. 1, 730 P.2d 338.

  Police tactics designed to detect drug-related offenses, including officer posing as drug dealer and supplying and selling drugs in "reverse buy" operation, were not so outrageous as to deprive defendant of right to due process.  73 H. 179, 830 P.2d 492.

  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.

  Section 703-309(1) not unconstitutionally vague as it describes with sufficient clarity level of force that may be justifiably used in discipline of a minor.  81 H. 5, 911 P.2d 725.

  A vessel and its accompanying mooring and live-aboard permits are constitutionally protected "property", of which an individual may not be deprived without notice and an opportunity to be heard.  91 H. 1, 979 P.2d 586.

  Procedural due process violated where State informed boat owner by letter of impoundment and possible disposal of vessel, but made no mention of any procedures available for challenging that action, administrative or otherwise, and boat owner was never provided with an opportunity to be heard on matter of vessel's impoundment.  91 H. 1, 979 P.2d 586.

  Right not violated by administrative driver's license revocation hearing procedure where defendant was afforded a hearing where witnesses were called and defendant was represented by counsel, and hearing office advised counsel of the procedure that hearing officer was going to follow.  108 H. 31, 116 P.3d 673.

  Right not violated where pregnant wife had qualified right to be present at her civil trial and right was unobstructed as family court did not preclude wife from attending; court merely denied wife's motions to continue and wife had no fundamental right to have trial commence at the time of her choosing; family court did not abuse its discretion as it considered conflicting testimony of doctors and other evidence in denying wife's motions.  112 H. 374, 146 P.3d 89.

  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.

  Testimony presented through interpreter was understandable, comprehensible, and intelligible.  5 H. App. 20, 686 P.2d 28.

  Show up identification was sufficiently reliable.  5 H. App. 127, 681 P.2d 573.

  Materiality of evidence suppressed by prosecution.  5 H. App. 350, 692 P.2d 1166.

  Termination or reduction of welfare benefits pursuant to original notice even though adopted rules invalidated.  New notices after readoption not required.  5 H. App. 419, 697 P.2d 43.

  Not violated by revival of paternity action.  5 H. App. 558, 705 P.2d 535.

  Right to participate in interscholastic sports not protected interest.  6 H. App. 397, 721 P.2d 165.

  Violated where petitioner whose driver's license was administratively revoked denied right to cross-examine director's representative regarding basis for continuance of administrative hearing.  80 H. 358 (App.), 910 P.2d 129.

  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.

  Where building addition was permitted structure under zoning ordinance in existence at time subsequent land use ordinance was adopted, requiring landowner to remove addition and pay daily fines until addition was removed constituted interference with landowner's vested property rights under this clause.  86 H. 343 (App.), 949 P.2d 183.

  Right violated by trial court entering free-standing restitution order where no notice was provided to defendant that defendant's original sentence might be modified at the hearing on the probation officer's motion to revoke restitution.  92 H. 36 (App.), 986 P.2d 987.

  Where trial court did not apply clear and convincing standard of proof on complainant as required by §604-10.5, applied a subjective rather than objective reasonable person standard in evaluating whether defendant's conduct caused complainant emotional distress, and violated defendant's due process rights, court erred by denying defendant's motion for reconsideration of injunction order.  92 H. 330 (App.), 991 P.2d 840.

  Given the apparent absence of a "countervailing state interest of overriding significance", family court's restrictions violated mother's right to free access to the courts where family court required mother, if she was represented by an attorney, to access the record in the case only through a licensed Hawaii attorney or other attorney admitted pro hac vice, or allowing mother, if she was representing herself pro se, to access the record only if she was accompanied by a family court staff person.  118 H. 293 (App.), 188 P.3d 807.

 

Eminent domain.

  "Public use" requirement is coterminous with scope of sovereign's police powers.  Land reform act was rational use of eminent domain power.  467 U.S. 229.

  If fear of a hazard would affect price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation.  Severance damages not allowed because no prima facie case of causation.  731 F.2d 1443.

  Public access to lagoon formed from littoral Hawaiian fishpond could not be imposed without payment of compensation.  944 F.2d 1489.

  Courts are not immune from prohibition against taking without compensation.  402 F. Supp. 95.

  "Public use" includes "public interest".  471 F. Supp. 871.

  Given system of landholding in Hawaii, legislature could, under police power, conclude that general welfare was served by condemning land of large landholder-lessors and allow lessees to purchase land from State under chapter 516.  483 F. Supp. 63.

  Legislative declaration of public use and finding of necessity are not constitutional prerequisites.  43 H. 255.

  Application of ordinance regulating outdoor signs did not constitute a taking of private property without payment of compensation.  50 H. 33, 429 P.2d 825.

  Law imposing on private employers obligation to pay their employees for service on juries and public boards, constituted taking.  52 H. 327, 475 P.2d 679.

  Attorney's fees and expenses are not embraced within "just compensation".  53 H. 582, 499 P.2d 663.

  Condemnation of leased fee interests in residential houselots continued to satisfy "public use" prerequisite of Fifth Amendment and article I, §20 of Hawai‘i constitution.  79 H. 64, 898 P.2d 576.

 

Former jeopardy.

  Essence of double jeopardy determination in conspiracy case is whether there is more than one agreement.  681 F.2d 581.

  Convictions for possession of unregistered firearms and possession of firearms by a felon not violative.  682 F.2d 799.

  Due diligence did not require extraordinary search methods at remote site, based on facts known at that time; greater charges not prohibited if government was unable to prosecute at outset because facts were not discovered despite exercise of due diligence.  707 F.2d 1100.

  No jeopardy attached where at pretrial hearing defendant acquitted by trial court by reason of insanity.  794 F.2d 1458.

  Remand for resentencing of an illegal sentence did not constitute double jeopardy.  876 F.2d 734.

  No double jeopardy where government appeals a reversal of defendant's conviction.  910 F.2d 617.

  Increasing sentence of defendant due to firearm possession while in possession of drugs was not double jeopardy.  924 F.2d 800.

  Murder defendant's fourth trial not barred by double jeopardy clause based on contention that prosecutorial misconduct intended to goad defendant into moving for mistrial.  937 F.2d 1409.

  Civil penalty imposed for failure to disclose marijuana pursuant to U.S. customs directive was not punishment for purposes of double jeopardy which would bar subsequent criminal prosecution for knowing possession and importation of marijuana.  940 F.2d 442.

  Double jeopardy claim failed where appellants failed to show that two conspiracies were the same in law and in fact.  995 F.2d 1448.

  Jury's "not guilty" verdicts on attempted second degree murder counts created a double jeopardy bar to petitioner's impending retrial on attempted second degree murder charges, where jury returned a "guilty" verdict on attempted first degree murder charge and "not guilty" verdicts on attempted second degree murder counts, based on the same incidents, and Hawaii supreme court reversed jury's judgment of conviction of attempted first degree murder and held that the "not guilty" verdicts did not, in substance, constitute acquittals and therefore the State could retry petitioner for attempted second degree murder without subjecting petitioner to double jeopardy.  389 F.3d 880.

  Reversal of a conviction on a greater offense, coupled with a final conviction on a lesser included offense, does not preclude retrial of the greater offense when the offenses were charged in the same indictment and tried together in the same original trial.  425 F.3d 1237.

  District court concluded appropriately that there was manifest necessity for a mistrial, where the court was faced with conflicts that had hindered defendant's lead counsel's ability to adequately represent defendant, and with defendant's refusal to waive the conflict while insisting on continuing with lead counsel as defendant's lawyer.  463 F.3d 858.

  Where jury found defendant guilty of attempted murder in the first degree based on two incidents and indicated on verdict form that defendant was not guilty of two counts of attempted murder in the second degree for the same two incidents, and Hawaii supreme court reversed the conviction and remanded the case for retrial on the two counts of attempted murder in the second degree, double jeopardy clause would be violated if defendant were retried for attempted murder in the second degree.  288 F. Supp. 2d 1122.

  Where defendant moved for dismissal of defendant's drug case on the ground that any trial would place defendant in double jeopardy, the court denied the motion on the grounds that (1) defendant waived the arguments defendant made, e.g., that any conflict of interest that may have existed was eliminated when the court struck a defense witness' testimony, and (2) even if the court considered the arguments, it was manifestly necessary to declare a mistrial.  369 F. Supp. 2d 1203.

  Although double jeopardy clause embraces a defendant's right to have bench trial completed by a particular judge, a defendant moving for a mistrial can be retried.  446 F. Supp. 1120.

  When judge declares mistrial sua sponte over defendant's objections, determination whether there was valid reason for ending trial is governed by manifest necessity test.  No manifest necessity to terminate first trial.  528 F. Supp. 833.

  Prosecution not barred because due diligence exception applied.  Due diligence means ordinary rather than extraordinary diligence.  546 F. Supp. 805.

  Because 18 U.S.C. §4248 of the Adam Walsh Child Protection and Safety Act is civil and not criminal in nature, the Constitution's double jeopardy clause does not apply.  574 F. Supp. 2d 1123 (2008).

  Congress did not intend 18 U.S.C. §§1591(a)(1) and (a)(2) to create two separate offenses such that a defendant could be penalized multiple times for the same conduct; Congress instead intended to provide two alternate means of committing the same offense.  713 F. Supp. 2d 1207 (2010).

  Uncontested administrative forfeiture did not offend the double jeopardy clause.  Because defendant chose to forego opportunity to contest forfeiture, defendant was not a party to forfeiture proceeding and could not claim an interest in the property; without an interest in the property, defendant could not be said to have been subjected to jeopardy or punished in any way by the administrative forfeiture.  876 F. Supp. 235.

  Where plaintiff was subjected to two separate proceedings, i.e., separation proceedings after plaintiff was found not guilty of use of cocaine by military judge in special court martial, question of whether the separation proceedings were sufficiently punitive to implicate double jeopardy was a serious constitutional question, justifying an exception from the exhaustion requirement for the limited purpose of the temporary restraining order and a finding of a serious question on the merits.  877 F. Supp. 508.

  Uncontested administrative forfeiture did not punish petitioner or place petitioner in jeopardy in the sense necessary to trigger double jeopardy clause protection.  887 F. Supp. 1371.

  Trial court's decision to declare mistrial was proper exercise of its discretion; accordingly, even if juror misconduct was not certain to result in reversal, defendants' joint motion to dismiss indictment on double jeopardy grounds must be denied.  951 F. Supp. 928.

  Double jeopardy clause not violated by a retrial, where jury was unable to reach a verdict.  952 F. Supp. 1426.

  Double jeopardy did not bar retrial with regard to defendant's failure to disperse from the first floor of a shopping mall under §711-1102, for which there was clearly sufficient evidence to support a conviction, where defendant was not expressly acquitted by the jury, defendant's conviction could not be assumed to include an implied acquittal on either of the acts offered by the prosecution to support the conviction, defendant was not convicted on a lesser included offense, and the jury did not refuse to convict defendant on the basis of either act on the first or second floor or choose between them.  124 H. 43, 237 P.3d 1109 (2010).

  Former prosecution bar to subsequent prosecution, when.  52 H. 321, 474 P.2d 704.

  Effects of setting aside former convictions by granting coram nobis and habeas corpus.  52 H. 420, 477 P.2d 630.

  Declaration of mistrial--when a bar to retrial.  58 H. 377, 569 P.2d 900; 62 H. 108, 612 P.2d 107.

  Resentencing to correct illegal sentence does not violate double jeopardy clause even if correction increases sentence.  61 H. 226, 602 P.2d 13; 67 H. 531, 696 P.2d 344.

  Where first indictment was void, no jury was impanelled, and judge heard no evidence on the charge, jeopardy did not attach.  62 H. 364, 616 P.2d 193.

  Under circumstances, jeopardy did not attach even though jury was sworn.  64 H. 395, 641 P.2d 1338.

  Rights waived by defendant.  64 H. 611, 645 P.2d 1340.

  Dismissal of prosecution not required.  65 H. 47, 647 P.2d 705; 65 H. 129, 648 P.2d 192.

  No jeopardy attached where at pretrial hearing defendant acquitted by trial court by reason of insanity.  67 H. 70, 679 P.2d 615.

  Jeopardy did not attach where case dismissed after defendant arraigned but before State's first witness sworn.  68 H. 238, 709 P.2d 607.

  No double jeopardy where crimes charged involved different mens rea requirements and different facts proved each crime.  68 H. 280, 711 P.2d 731.

  No double jeopardy where trial court did not accept verdict or discharge the jury.  70 H. 175, 765 P.2d 1091.

  Retrial not barred by double jeopardy clause where there was no prosecutorial intent to goad defendant into moving for mistrial.  73 H. 289, 834 P.2d 275.

  Reprosecution barred because defendant was subjected to former jeopardy in first trial and trial court erroneously declared mistrial without defendant's consent or a showing of manifest necessity.  75 H. 195, 857 P.2d 585.

  Hawaii constitution provides greater protection against multiple prosecutions than U.S. Constitution; requires application of "same conduct" test.  75 H. 446, 865 P.2d 150.

  One year suspension of appellant's license to practice medicine by board of medical examiners after appellant was convicted of attempted first degree sexual abuse and kidnapping did not amount to a violation of double jeopardy clause.  78 H. 21, 889 P.2d 705.

  Appellant's new sentence did not contravene right against double jeopardy even if it potentially affected appellant's future eligibility for parole.  79 H. 281, 901 P.2d 481.

  Reprosecution not barred by double jeopardy where trial court's declaration of mistrial supported by manifest necessity; court sufficiently considered alternatives available.  79 H. 461, 903 P.2d 1282.

  As §286-261(d) did not require defendant to submit to needs assessment nor undergo any treatment for alcohol dependence, application of that section with DUI conviction under §291-4 not "multiple punishments for same offense".  80 H. 8, 904 P.2d 893.

  Remanding case for retrial on lesser included offenses following appellate determination that insufficient evidence was presented at trial to support conviction of greater offense did not violate clause.  80 H. 126, 906 P.2d 612.

  Defendant not subjected to multiple punishments as a result of administrative driver's license revocation under §286-261 and DUI conviction under §291-4 as administrative revocation non-punitive and purely remedial in nature.  81 H. 226, 915 P.2d 700.

  Because counseling and assessment, as consequence of administrative driver's license revocation under §286-261(d), not punitive but purely remedial, subsequent DUI conviction did not expose defendant to multiple "punishments"; defendant's motion to dismiss on double jeopardy grounds thus properly denied.  82 H. 446, 923 P.2d 388.

  Denial of defendant's motion to dismiss on double jeopardy grounds, premised on protection against multiple punishments for same offense, not effectively unreviewable on appeal and thus not immediately appealable under collateral order exception.  82 H. 446, 923 P.2d 388.

  Jeopardy did not attach where defendant failed to file a timely claim for forfeited property under §712A-10(4).  83 H. 141, 925 P.2d 311.

  Where defendant's conviction on non-existent attempted reckless manslaughter charge vacated, remand for retrial on original charge of attempted first degree murder unconstitutional and also violation of §701-110(1).  83 H. 335, 926 P.2d 1258.

  Not violated by prosecution's appeal from judgment of acquittal following jury's verdict of guilty pursuant to §641-13(9).  87 H. 108, 952 P.2d 865.

  As conviction for manslaughter due to an extreme mental or emotional disturbance under §707-702(2) is deemed an acquittal of murder, double jeopardy barred defendant's reprosecution for second degree murder under §707-701.5.  88 H. 356, 966 P.2d 1082.

  Prosecution not barred from reprosecuting defendant for offense of reckless manslaughter under §707-702(1)(a) as reckless manslaughter is a lesser included offense of murder and remanding a case for retrial on lesser included offenses not barred by double jeopardy.  88 H. 356, 966 P.2d 1082.

  Where, upon defendant's own motion, place to keep firearms count under §134-6 was dismissed on a basis unrelated to factual guilt or innocence, retrial on the place to keep firearms charge not barred by double jeopardy clauses of U.S. and Hawaii Constitutions.  88 H. 389, 967 P.2d 221.

  As family court's "judgment of acquittal" was, in fact, an acquittal "in substance as well as form", clause violated where family court granted prosecution's motion for reconsideration and denied defendant's motion to dismiss complaint.  91 H. 206, 982 P.2d 340.

  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.

  Trial court abused its discretion in concluding there was manifest necessity for mistrial as circumstances creating apparent need for mistrial did not make it impossible for trial to proceed; in absence of manifest necessity, defendant should have been allowed to choose between continuing with trial or consenting to a mistrial; by moving for dismissal with prejudice, defendant did not "consent" to the mistrial; retrial thus barred by double jeopardy.  97 H. 238, 35 P.3d 755.

  The double jeopardy clause does not constrain the legislature from intentionally imposing multiple punishments upon a defendant for separate offenses arising out of the same conduct; the protections afforded by the U.S. Constitution, as set forth in the Blockburger "same elements" test, adequately protect against double jeopardy in "multiple punishments" cases.  107 H. 469, 115 P.3d 648.

  Does not bar second trial of charge dismissed before being submitted to judge or jury.  5 H. App. 127, 681 P.2d 573.

  Retrial permissible if dismissal due solely to trial error rather than evidentiary insufficiency; jeopardy ended at trial where judge did not return verdict on charge despite having full opportunity to do so and no extraordinary circumstances.  7 H. App. 48, 744 P.2d 783.

  No double jeopardy for conviction under §§707-734 and 712-1217.  8 H. App. 535, 813 P.2d 335.

  Retrial barred where reversal of DUI conviction based on improperly admitted test result from breath-testing instrument was for insufficiency of evidence, not trial error.  9 H. App. 130, 828 P.2d 813.

  Retrial not barred where defendant moved for dismissal and was successful in having the charge dismissed before a determination was made of whether defendant was guilty or not guilty and where defendant did not make any showing that prosecutor intended to provoke a mistrial.  10 H. App. 491, 878 P.2d 739.

  Clause violated where defendant, upon being resentenced for same offense, not given credit for imprisonment already served and fines already paid.  82 H. 83 (App.), 919 P.2d 995.

  Since kidnapping under §707-720(d) and sexual assault under §707-732(1)(e) require proof of a fact which the other does not, offenses are different and defendant's federal double jeopardy guarantee not violated by defendant's conviction and punishment for both offenses.  85 H. 92 (App.), 937 P.2d 933.

  Where purported judgment of acquittal was unrelated to factual guilt or innocence of defendant and was solely based on a question of law, no double jeopardy if defendant retried.  88 H. 477 (App.), 967 P.2d 674.

  Retrial of defendant was not double jeopardy and not barred when mistrial was prompted by prosecutorial misconduct, even where the defendant consented to the mistrial, where the prosecutorial misconduct was not so egregious that, from an objective standpoint, it clearly denied the defendant his or her right to a fair trial.  97 H. 166 (App.), 34 P.3d 1065.

  As attempted assault in the first degree is an included offense of assault in the first degree, under §701-109(4), the trial court properly instructed the jury on the included offense of attempted assault in the first degree; as trial court's instructing the jury on the included offense of attempted assault in the first degree only placed defendant in jeopardy once, defendant's double jeopardy rights not violated.  112 H. 278 (App.), 145 P.3d 821.

  Where district court's dismissal of the charges against defendant was not based on a resolution in defendant's favor of some or all of the factual elements of the offenses charged, and was not based on a decision on the merits of the case or a decision as to the guilt of defendant, the protection against double jeopardy did not apply; because the district court's dismissal of the charges did not constitute an acquittal, the court had the authority to reconsider and overturn its dismissal ruling without violating the protection against double jeopardy.  128 H. 449 (App.), 290 P.3d 519 (2012).

  Discussed.  55 H. 14, 514, P.2d 580.

 

Indictment.

  Indictment dismissed due to prosecutorial misconduct.  607 F.2d 871.

  Government did not constructively amend appellant's indictment, where appellant contended that grand jury indicted appellant for a conspiracy to distribute cocaine in Hawaii but proof at trial failed to connect appellant to Hawaii.  255 F.3d 714.

  Indictment sufficient where indictment under 18 U.S.C. §1591 contained language that defendant acted "knowing that" defendant's alleged victims had attained the age of fourteen but had not yet attained the age of eighteen.  713 F. Supp. 2d 1207 (2010).

  Indictment not affected by examination of defendant's wife by grand jury.  45 H. 221, 365 P.2d 202.

  Indictment not affected by noncompliance with statutory or criminal rule provisions relating to preliminary examination.  45 H. 604, 372 P.2d 356.

  Preliminary hearing is not a constitutional requirement and not a prerequisite to issuance of indictment.  51 H. 318, 459 P.2d 376.

  Prosecutorial misconduct before grand jury must be extreme and clearly infringe upon jury's decision-making function in order to serve as basis for quashing indictment.  62 H. 209, 614 P.2d 373.

  Hearsay admissible if not deliberately used in place of better evidence to improve case for indictment.  62 H. 518, 616 P.2d 1383.

  Prosecutor was not required to instruct grand jury on option to indict for lesser offense unless evidence clearly established lesser offense.  62 H. 518, 616 P.2d 1383.

  Mere absence of independent grand jury counsel does not establish that the due process rights of accused were violated.  63 H. 412, 629 P.2d 1111; 63 H. 633, 633 P.2d 1113.

  Evidence established probable cause that defendant was driving under influence of drugs.  68 H. 184, 706 P.2d 1305.

  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.

 

Police power.

  Statute requiring motorcyclists to wear safety helmets is reasonable exercise of the police power.  51 H. 516, 465 P.2d 573.

 

Self-incrimination.

  See also notes on defendant's out-of-court statements.

  State involuntary commitment statute does not violate privilege by penalizing refusal to speak.  617 F.2d 173.

  Prior silence cannot be used for impeachment where silence not probative and where prejudice to defendant might result.  639 F.2d 466.

  No abuse of discretion in allowing witness broad privilege to refuse to answer all substantive questions.  646 F.2d 365.

  Prosecutor's comments not improper comment upon defendant's failure to testify.  730 F.2d 1292.

  Not violated by requirement that passenger notify carrier of firearm shipment.  777 F.2d 494.

  Prosecutor improperly commented on defendant's failure to testify.  807 F.2d 805.

  Defendant's exercise of right to appeal or privilege against self-incrimination cannot be used as basis for denying reduction of offense level under sentencing guidelines for acceptance of responsibility.  998 F.2d 1460.

  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.

  Requiring inmates labeled as sex offenders to admit their offenses and take responsibility for their sexual behaviors as part of treatment program did not violate privilege against self-incrimination.  131 F.3d 818.

  The foregone conclusion exception applied to documents related to two credit cards expressly named in the Internal Revenue Service summonses; the exception did not apply to documents concerning two additional credit cards named during contempt proceedings, and therefore, the production of those documents was privileged under the Fifth Amendment.  596 F.3d 683 (2010).

  Prosecutor's prejudicial references to defendant's privilege against self-incrimination made during grand jury hearing are grounds for dismissal of indictment.  450 F. Supp. 1097.

  Prosecutor's comments in regard to defendant's failure to testify were prejudicial.  674 F. Supp. 788.

  No coercion existed where, regardless of defendant's alleged hand injury and the alleged failure of Federal Bureau of Investigation's agents to obtain medical care for the defendant, defendant's statements were the product of rational intellect and free will.  693 F. Supp. 2d 1200 (2010).

  No prejudice to plaintiff where plaintiff's appellate counsel failed to raise a Miranda claim when plaintiff voluntarily, knowingly, and intelligently waived plaintiff's rights to remain silent before being questioned by the police; no reasonable probability that the appeal would have been decided differently had the Miranda claim been raised.  700 F. Supp. 2d 1252 (2010).

  Plaintiff government's experts were limited to rebutting defendant's mental status evidence and not ascertaining another possible motive for defendant's actions where defendant raised a defense that relied on an expert examination of defendant's mental condition; any diagnosis which requires a broader examination of defendant, or which is used to assert a theory of prosecution not just to rebut the defendant's mental status defense, was inadmissible.  731 F. Supp. 2d 1012 (2010).

  Based on the totality of the circumstances, detective's statements "reasonably convey[ed] to [defendant the defendant's] rights as required by Miranda"; defendant's waiver of defendant's Miranda rights was voluntarily given.  835 F. Supp. 2d 938 (2011).

  Where after never asserting the privilege, petitioner argued that petitioner failed to file a bond and contest the administrative forfeiture because the acts would incriminate petitioner, because the self-incrimination dilemmas never materialized and the remedy sought was well beyond those provided for such dilemmas, petitioner's argument concerning self-incrimination found without merit.  887 F. Supp. 1371.

  Defendant was not in custody for either of two conversations, where defendant had freedom to move anywhere on island when both conversations occurred; consequently, Miranda warnings not required and defendant's right not to incriminate defendant not violated.  961 F. Supp. 1398.

  Defendant's pre-search statements admissible:  (1) where statement about the shotgun and ammunition was volunteered to a police officer and was not made in response to custodial interrogation; (2) where an officer's response to defendant's second request to make a statement did not constitute custodial interrogation; and (3) pursuant to the "public safety exception" to Miranda, regarding the location of the shotgun and ammunition; defendant's responses to the officer's final two questions suppressed.  388 F. Supp. 2d 1185.

  Claim of privilege against self-incrimination by minor under eighteen cannot be supported on the basis of possible juvenile court proceedings against minor, nor on the basis of possible prosecution for misdemeanor where the statute of limitations will run before the minor reaches eighteen.  44 H. 271, 353 P.2d 631.

  Right against self-incrimination being personal to witness, defendants cannot object to court's failure to warn witness.  51 H. 40, 450 P.2d 996.

  Comment on defendant's assertion of right against self-incrimination in civil proceeding is not permissible.  51 H. 649, 466 P.2d 452.

  Statute cannot destroy one's right to silence by empowering police and judiciary to compel communication, nor may statute impose criminal liability for failing to speak.  52 H. 527, 480 P.2d 148.

  Comment on defendant's silence not automatic grounds for reversal.  Standard.  63 H. 488, 630 P.2d 619.

  Not violated by requirement to undergo field sobriety test. Roadside questioning of defendant after stop for traffic violation not a custodial interrogation.  67 H. 293, 687 P.2d 544.

  Officer's remarks intended as greeting, not an interrogation.  Confession was unsolicited, spontaneous statement.  67 H. 563, 698 P.2d 281.

  Presentation to defendant of apparently overwhelming inculpatory evidence was an interrogation; right to remain silent violated where functional equivalent of interrogation begun immediately after right exercised.  68 H. 28, 702 P.2d 1352.

  Privilege does not extend to defendant implicated by another whose right against self-incrimination was violated.  68 H. 569, 722 P.2d 1036.

  Default judgment for failure to make an accounting did not violate privilege where no evidence that information sought by accounting would incriminate defendant.  68 H. 608, 726 P.2d 254.

  Miranda warnings for one offense provide sufficient notice as to potential criminal liability for another offense.  69 H. 398, 744 P.2d 514.

  Scope of protections guaranteed by Hawaii constitution are broader than federal requirements.  69 H. 461, 748 P.2d 365.

  Defendant's statement to police, made while wearing blanket during custodial interrogation, was not coerced under totality of circumstances.  72 H. 327, 817 P.2d 1054.

  Constitutional right was not voluntarily waived by defendant's confession to theft where waiver was predicated on prior illegal search and State failed to meet burden of showing that taint of illegal search had been dissipated or that there was an independent source inducing defendant to waive right.  72 H. 505, 824 P.2d 833.

  Not violated where court requested defendant to identify self for purposes of identification in compliance with HRPP 43(a) (requiring presence of defendant at trial).  72 H. 573, 827 P.2d 648.

  Defendant's mental and physical condition at time of defendant's interview with detective did not render defendant's statement involuntary; where defendant complained detective repeatedly exhorted defendant to tell the whole story and wheedled a confession out of defendant through misrepresentations, detective's tactics did not amount to mental or psychological coercion, rendering defendant's consequent statement involuntary and inadmissible.  74 H. 479, 849 P.2d 58.

  Circuit court's error in failing to expressly state findings of fact and conclusions of law with respect to alleged violation of appellant's right against self-incrimination was harmless error; reversal of appellant's original conviction was not based on prosecution's use of illegally obtained confessions and appellant had never alleged that appellant was in any way compelled to testify at first trial.  76 H. 237, 873 P.2d 775.

  Defendant did not invoke right where, after being properly informed of Fifth Amendment rights, record did not support conclusion that defendant did request attorney during first police interview and defendant admitted to failing to request attorney at last two interviews.  83 H. 443, 927 P.2d 844.

  Right voluntarily, knowingly, and intelligently waived where no one threatened defendant to sign police waiver forms or during subsequent interviews, defendant knew defendant could terminate interviews at any time, and defendant was not a "neophyte" to criminal justice system.  83 H. 443, 927 P.2d 844.

  Where Miranda warnings not first given to defendant in custody, defendant's statements to officer regarding device found in defendant's truck and device's purpose were unlawfully obtained and thus inadmissible.  87 H. 71, 951 P.2d 934.

  Where "public safety" exception to Miranda inapplicable to case, statements by defendant subjected to custodial interrogation without Miranda warnings inadmissible in evidence.  87 H. 71, 951 P.2d 934.

  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 defendant initiated contact with police for purpose of making a confession and police adequately determined that defendant's mind was clear and defendant had made a voluntary decision to waive defendant's rights and make a statement, trial court properly determined defendant knowingly and intelligently waived constitutional rights.  92 H. 19, 986 P.2d 306.

  Where no evidence that defendant felt compelled to give statement to police because defendant feared defendant would be beaten, felt dizzy and in pain, and had not slept in four days prior to defendant's arrest, trial court erred in concluding statement was not voluntarily and freely given.  92 H. 135, 988 P.2d 200.

  Where trial court was put on advance notice that defendant intended to invoke privilege against self-incrimination, court abused discretion by permitting prosecution to question defendant about false identification cards; risk of unfair prejudice occasioned by compelling criminal defendant to invoke privilege in front of jurors was substantial and not outweighed by probative value of prosecution's unanswered questions.  97 H. 206, 35 P.3d 233.

  Trial court violated defendant's constitutional privilege against self-incrimination by imposing an enhanced sentence pursuant to §706-662(4) based solely on defendant's refusal to admit defendant's guilt with respect to the offenses of which defendant was convicted by the jury.  103 H. 315, 82 P.3d 401.

  Where defendant's statements were not the product of "interrogation", but, rather, were "volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent", defendant's constitutional rights against self-incrimination and due process of law not violated.  104 H. 224, 87 P.3d 893.

  Where defendant gave a full and voluntary statement to detective but then declined to repeat the statement on tape, defendant did invoke right to remain silent, not because defendant refused to make a statement on tape, but because that refusal appeared to have caused a termination of all questioning by the police and acted as a de facto invocation of defendant's right to refrain from answering further questions.  113 H. 41, 147 P.3d 825.

  Where prosecutor merely elicited the fact, without further comment, that, following a full, voluntary explanation of how accused came to possess the welder and trailer, accused declined to agree to an audiotaped reiteration of accused's statement to detective, information elicited by prosecutor from detective was not manifestly intended or of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.  113 H. 41, 147 P.3d 825.

  Where (1) prosecutor argued the unreasonable inference that defendant was guilty in light of defendant's post-arrest silence, (2) the trial court declined to give a curative instruction when defendant objected to prosecutor's comments, and (3) the evidence against defendant was not so overwhelming that prosecutor's intrusion into defendant's right to remain silent may not have contributed to defendant's conviction, prosecutor's improper comments were not harmless beyond a reasonable doubt, and defendant was entitled to a new trial.  117 H. 235, 178 P.3d 1.

  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).

  Prosecutor's statements not improper comment upon defendant's failure to testify.  3 H. App. 107, 643 P.2d 807.

  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.

  Because defendant's refusal to take the field sobriety test was neither testimonial nor compelled, this Amendment and article I, §10 of the Hawaii constitution were not offended.  94 H. 17 (App.), 7 P.3d 193.

  Where detective made clear to defendant that "in accordance with the mandate of Miranda, the right to counsel may be invoked at any point, and when invoked, all substantive questioning must cease unless and until counsel is provided," trial court did not err in denying defendant's motion to suppress statement defendant made to detective.  101 H. 97 (App.), 63 P.3d 405.

  Where defendant was properly informed of defendant's Miranda rights against self-incrimination, and expressly waived this right and the right to counsel prior to being examined and prior to giving the suppressed statements, defendant's rights not violated.  101 H. 344 (App.), 68 P.3d 618.

  Defendant's right violated where, based on the specific facts of the case, trial court abused its discretion in directing, over defendant's objection, that defendant testify before defendant's other defense witness; error not harmless beyond a reasonable doubt as there was a reasonable possibility that trial court's error contributed to defendant's conviction.  102 H. 369 (App.), 76 P.3d 612.

  State did not comment on defendant's exercise of right to remain silent as, placed in its proper context, prosecutor's question to evidence specialist--"did the defendant attribute any apparent injuries to the complainant?"--was not an attempt to elicit evidence that defendant had exercised defendant's right to remain silent.  106 H. 365 (App.), 105 P.3d 242.

  Right not to testify at trial not compromised by family court's consolidation of the hearing on motion to suppress identification and the trial itself where minor could have advised the court that minor would only testify with respect to the issues presented by minor's motion to suppress, that minor was not giving up minor's Fifth Amendment right not to testify at trial, and that absent minor's consent, the court must not consider minor's testimony when deciding the merits of the case.  107 H. 439 (App.), 114 P.3d 945.

  Where trial court misinformed defendant about defendant's eligibility for a deferred acceptance of no contest plea, defendant did not proffer defendant's plea knowingly and voluntarily, and it was constitutionally invalid.  109 H. 50 (App.), 122 P.3d 1148.

  Trial court did not abuse its discretion by prohibiting defense from calling witness in order to have witness invoke witness' privilege against self-incrimination in front of the jury where, under HRE rule 513(a), witness' invocation of privilege in front of jury would not have been entitled to any probative weight and could not properly have been considered by the jury.  110 H. 386 (App.), 133 P.3d 815.

  Trial court properly suppressed defendant's statements disclaiming fanny pack where police failed to apprise defendant of defendant's Miranda rights before subjecting defendant to custodial interrogation; when officers took defendant to the hospital for treatment, defendant was in custody because defendant had been "formally and physically arrested" and the "express questioning" of defendant by police regarding the ownership of the fanny pack constituted interrogation.  116 H. 29 (App.), 169 P.3d 981.

  Although the police department form signed by defendant advising defendant of defendant's constitutional rights only referenced a single incident, where (1) defendant was clearly advised that defendant was going to be questioned about the other three incidents before defendant was questioned about any of those incidents, (2) officer repeatedly reminded defendant that defendant's constitutional rights were still available to defendant, and (3) defendant reiterated that defendant wanted to give a statement without a lawyer present, defendant knowingly, voluntarily, and intelligently waived those rights.  121 H. 513 (App.), 221 P.3d 491 (2009).

 

Taking.

  Federal government could not require free public access to Kuapa Pond without paying just compensation.  444 U.S. 164.

  The "substantially advances" formula announced in Agins v. City of Tiburon is not a valid method of identifying regulatory takings for which the Fifth Amendment requires just compensation.  Since oil company claiming that the rent cap provision of Act 257 [L 1997 (§486H-10.4(c))], on its face, effected a taking of its property argued only a "substantially advances" theory in support of its takings claim, it was not entitled to summary judgment on that claim.  544 U.S. 528.

  Public use limitation not subsumed under police power/due process analysis.  702 F.2d 788.

  No cases finding a substantive due process violation based on a planning document.  Qualified immunity is not available as a defense to private parties in a Bivens suit.  869 F.2d 1312.

  Government does not take an individual's property unless it has denied the economically viable use of the land; a substantial reduction of the attractiveness of the property to potential purchasers does not entitle the owner to compensation.  913 F.2d 573.

  Ordinance, a rent control measure limiting increases in ground rent due owner of land under condominium units, effected a regulatory taking and was unconstitutional.  124 F.3d 1150.

  Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests violated public use clause of U.S. and Hawaii Constitutions, ordinance was constitutional; landowners' claim under just compensation clause not ripe for federal adjudication.  124 F.3d 1150.

  Right to develop property, including right to lease land to build hotel, not a protectable property interest; Queen's Beach is separate parcel for determining "taking".  649 F. Supp. 926.

  City ordinance purporting to impose maximum ceiling on renegotiated lease rents for residential condominiums was unconstitutional taking of property without just compensation.  759 F. Supp. 1477.

  City ordinance imposing ceiling on renegotiated ground lease rents for owner-occupied residential condominium units unconstitutional; ordinance providing mechanism for transfer of fee interest from condominium lessors to lessees by payment of just compensation constitutional.  802 F. Supp. 326.

  Condominium lease-to-fee ordinance did not effect an impermissible taking.  832 F. Supp. 1404.

  Facts did not support a claim of either procedural due process or takings clause violation; termination of special use permits did not require compensation because they were not property interests recognized by the Fifth Amendment.  875 F. Supp. 680.

  Where plaintiff sued defendant for allegedly violating plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments, based on defendant's involvement in the removal and subsequent destruction of motorcycles and mopeds in the area of plaintiff's motorcycle repair shop, genuine issues of material fact existed and precluded the court from determining whether defendant was entitled to qualified immunity under federal law.  333 F. Supp. 2d 942.

  To the extent that plaintiffs raised a facial takings claim as to ordinance requiring developers seeking to build five or more residential units on their land to enter into a residential workforce housing agreement with county department before final subdivision approval or building permits are issued, plaintiffs must first seek compensation via state court; plaintiffs' as-applied takings claims also unripe.  573 F. Supp. 2d 1354 (2008).

  State defendants' multi-count motion for summary judgment and the joinders therein, granted as to provider plaintiffs' takings clause claim, where the plaintiffs' theory was that by reducing the reimbursement rates and by failing to pay pharmacists' claims on the basis that the claims were untimely, state defendants had taken property (in the form of losses) from the plaintiffs and transferred it to the QUEST expanded access program contractors without a public use or public purpose.  676 F. Supp. 2d 1046 (2009).

  Enforcement of referendum did not result in taking because referendum certified before any post-zoning approvals were obtained.  65 H. 318, 653 P.2d 766.

  McBryde Sugar Co. v. Robinson, 54 H. 174, did not address question of whether cessation of any particular diversion would in fact constitute a taking.  65 H. 641, 658 P.2d 287.

  As Hawaiian custom and usage have always been part of the laws of the State, court's recognition of customary and traditional Hawaiian rights did not constitute judicial taking.  79 H. 425, 903 P.2d 1246.

  No violation by impoundment of vessel where impoundment was undertaken in substantial advancement of legitimate state interests--to prevent the sinking vessel from obstructing a public waterway; owner thus not entitled to compensation.  91 H. 1, 979 P.2d 586.

  As water is a state public trust resource to which no individual, including Waiahole Ditch water use permittees, could claim an exclusive right, permittees being required to fund subsequent stream studies and monitoring activities was not an unconstitutional "regulatory leveraging".  94 H. 97, 9 P.3d 409.

  No unconstitutional taking of petitioner's property without just compensation by water resource management commission's denying petitioner's request to use the ground water underlying its lands and allocating it instead to other leeward parties where the right to absolute ownership of water exclusive of the public trust never accompanied the "bundle of rights" conferred in the Mahele.  94 H. 97, 9 P.3d 409.

  Where power plant developers did not acquire a vested interest in the lease because it was not preceded by the requisite environmental study, which in Hawaii is a condition precedent to approval of the request and commencement of the proposed action, the lease was void and no rights could have vested in the developers; thus, developers failed in their takings claim.  106 H. 270, 103 P.3d 939.

  As a community plan amendment is not an administrative act, it cannot reasonably be required as a step in reaching a final agency determination for ripeness purposes; ripeness requires only that landowners take advantage of any available variances or waivers under existing law, it does not require them to undertake changing the law itself; thus, appellants were not required to seek a change in the applicable law, i.e., the community plan, in order to satisfy the ripeness requirements for their takings claim.  128 H. 183 (App.), 284 P.3d 956 (2012).