RIGHTS OF ACCUSED

RIGHTS OF ACCUSED

Section 14. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against the accused, provided that the legislature may provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim's physician, psychologist, counselor or licensed mental health professional; to have compulsory process for obtaining witnesses in the accused's favor; and to have the assistance of counsel for the accused's defense. Juries, where the crime charged is serious, shall consist of twelve persons. The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 2846 (2004) and election Nov 2, 2004]

Cross References

Jury of the "district", see §806-17.

Attorney General Opinions

Constitutional amendment eliminating jury trial for serious criminal cases will not be consistent with the due process clause of the Fourteenth Amendment. Att. Gen. Op. 68-10.

The jury referred to is a jury of twelve. Att. Gen. Op. 68-10.

Last sentence took effect upon ratification of proposal by voters on election day and not upon certification of result by lieutenant governor. Att. Gen. Op. 68-31.

Proposed legislation did not conflict with mandates of this section with regard to permitting a jury of six persons in cases involving "non-serious crimes". Att. Gen. Op. 97-2.

Law Journals and Reviews

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

The Hawaii Supreme Court's Criminal Law Decisions 1997-1998: Fair Use of the Doctrine of Plain Error? II HBJ No. 13, at pg. 49.

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

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

State v. Furutani: Hawai‘i's Protection of a Defendant's Right to a Fair Trial--Verdict Impeachment Made Easy. 17 UH L. Rev. 307.

State v. Lindsey: "Petty" Offenses and the Right to Jury Trial under the Hawai‘i Constitution. 17 UH L. Rev. 331.

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

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

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

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

State Search and Seizure: The Original Meaning. 38 UH L. Rev. 63 (2016).

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

Ex Parte Communications Between Sentencing Judges and Probation Officers: A Need for Full Disclosure. 44 UH L. Rev. 290 (2022).

Case Notes

Generally.

Section modeled after the Sixth Amendment of the federal constitution and was intended to incorporate it and to give the State the benefit of federal decisions construing the same language. 47 H. 361, 385, 389 P.2d 439.

Compulsory process.

Defendant only afforded right to compel attendance and testimony of witnesses who can give relevant and beneficial testimony for defense. 64 H. 217, 638 P.2d 324; 67 H. 59, 677 P.2d 465.

Evidence did not show that testimony would have been relevant and beneficial to defense. 64 H. 217, 638 P.2d 324.

Violated by prohibition of witnesses' description testimony, though their identification testimony suppressed. 67 H. 123, 680 P.2d 253.

To protect the right to testify under Hawai‘i constitution, trial courts must advise criminal defendants of their right to testify and must obtain on-the-record waiver of that right in every case in which the defendant does not testify. 79 H. 226, 900 P.2d 1293.

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.

Defendant's right to testify violated where trial court failed to establish on the record that defendant's decision not to testify was made knowingly and voluntarily. 91 H. 275, 982 P.2d 904.

The Tachibana colloquy to advise a defendant that he or she has a right not to testify is required only in cases in which the defendant does not testify; it is not required in a situation where the defendant has decided to testify. 94 H. 292, 12 P.3d 1233.

To minimize the scope of any post-conviction claim by a testifying defendant that he or she was not aware of his or her right to testify, trial court must give prior-to-start-of-trial advisement informing defendant of his or her right to testify or not to testify, and that if defendant has not testified by the end of trial, the court will briefly question defendant to ensure that the decision not to testify was defendant's own decision. 94 H. 292, 12 P.3d 1233.

Where witness appeared, exercised witness' right to remain silent, and defendant failed to offer proof beyond conjecture that witness' testimony would be helpful to defendant, defendant's right not violated. 100 H. 210, 58 P.3d 1257.

Where prosecutor discussed statements by potential members of the jury elicited during voir dire that prosecutor did not offer in evidence, prosecutor impermissibly commented on matters outside the evidence. 125 H. 271, 260 P.3d 350 (2011).

Where prosecutor's comments that respondent had benefited from listening to all the other witnesses before testifying plainly conveyed to the jury that respondent's testimony therefore should be discredited were based solely on respondent's presence at trial, they were prohibited generic tailoring comments. 125 H. 271, 260 P.3d 350 (2011).

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

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

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

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

Not violated by trial court's refusal to allow further examination of witness. 5 H. App. 127, 681 P.2d 573.

Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt. 78 H. 115 (App.), 890 P.2d 702.

Trial court's failure to obtain on-the-record waivers from co-defendants of their right to testify was not harmless beyond a reasonable doubt where, if co-defendants' testimony had been added to version of events, jury's decision may have been different. 92 H. 148 (App.), 988 P.2d 667.

Where trial court violated defendant's right to testify by failing to advise defendant of that right and obtain a waiver on the record, and it could not be said beyond a reasonable doubt that if defendant's testimony had been added to the eyewitness' version of the incident, the verdict would not have been different, trial court's error not harmless beyond a reasonable doubt. 93 H. 513 (App.), 6 P.3d 385.

As right to testify is personal to defendant, to be relinquished only by defendant, court erred in failing to obtain waiver of right directly from defendant; defense counsel's remark that "he has elected not to testify" did not constitute a voluntary and knowing waiver by defendant of that right. 94 H. 271 (App.), 12 P.3d 371.

Where decisive issue in case was credibility, and there was extensive contradiction between State's witnesses and defendant's witness, a reasonable possibility existed that violation of defendant's right to testify contributed to defendant's conviction; court's error was thus not harmless beyond a reasonable doubt and defendant's conviction and sentence had to be vacated. 94 H. 271 (App.), 12 P.3d 371.

Failure to advise defendant who testified that defendant had a right not to testify during trial was harmless error, rather than plain error. 94 H. 309 (App.), 12 P.3d 1250.

Where the prosecutor's remarks during closing argument constituted a "generic accusation" that defendant tailored defendant's testimony based solely on defendant's presence at trial, and the evidence against defendant was not overwhelming, and as a result, the pivotal issue in the case was the credibility of the witnesses, defendant's rights under this section were violated as it could not be concluded that the prosecutor's conduct did not contribute to defendant's conviction. 123 H. 284 (App.), 231 P.3d 1001 (2010).

Confrontation of witnesses.

See also notes to U.S. Const. Amend 6.

Violated by foreperson's statement to other jurors, based on own experience, that minors' claims of sexual molestation were reliable. 68 H. 575, 722 P.2d 1039.

Defendant's right to a fair trial was violated when it was found that a juror had a bias to defendant's refusal to take the witness stand. 71 H. 389, 791 P.2d 1266.

Questioning only the jury foreperson does not resolve the matter of jury misconduct. 72 H. 97, 807 P.2d 593.

Jury was not tainted by anonymous phone calls to some of the jurors where no threat was made or where there was no actual reference to the trial. 72 H. 106, 807 P.2d 1264.

Trial court's supplemental instruction to deadlocked jury that it must unanimously decide that it was unable to reach verdict was prejudicial. 72 H. 327, 817 P.2d 1054.

Consideration of non-evidentiary materials by jury during deliberations and failure to rebut presumption of prejudice resulted in denial of right to fair trial. 72 H. 475, 823 P.2d 152.

Trial court must insure that defendant's right to fair trial is not compromised and at the least prevent or reduce prejudicial pretrial publicity; order imposing restrictions on extrajudicial statements of trial participants was impermissible. 73 H. 499, 835 P.2d 637.

Circuit court did not commit an abuse of discretion in granting defendant's motion for new trial; circuit court's conclusions of law that possible juror misconduct at voir dire and juror misconduct during deliberations deprived defendant of a trial by twelve fair and impartial jurors not clearly erroneous. 76 H. 172, 873 P.2d 51.

Newscast concerning appellants and their alleged involvement in a burglary other than those charged and prospective juror's account of the newscast and the effect it had on prospective juror that was given in presence of jury panel, discussed as "outside influences". 78 H. 383, 894 P.2d 80.

Not violated by empaneling of anonymous jury where there was strong reason to believe jury needed protection and trial court took reasonable steps to minimize any prejudicial effect on defendant and ensure that defendant's fundamental rights were protected. 83 H. 507, 928 P.2d 1.

Purpose of §612-18(c) is to uphold a criminal defendant's constitutional guarantees of a presumption of innocence and an impartial jury. 83 H. 507, 928 P.2d 1.

The right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this State, is guaranteed by this section and §5 of this article of the Hawaii constitution. 84 H. 1, 928 P.2d 843.

When separate and distinct culpable acts are subsumed within a single count charging a sexual assault, the trial court must either (1) require the prosecution to elect the specific act upon which the prosecution is relying to establish the "conduct" element of the charged offense, or (2) give the jury a specific unanimity instruction. 84 H. 1, 928 P.2d 843.

Defendant's right not violated by having husband and wife serve on same jury; both expressly stated during voir dire that they would each make their own decisions and would not automatically go along with the other person. 88 H. 19, 960 P.2d 1227.

Where trial court failed to correct prosecution's erroneous interpretation of "remains unlawfully" under §708-810, defendant's constitutional rights to due process and a unanimous jury verdict violated. 89 H. 284, 972 P.2d 287.

Where trial court erred by ruling that evidence of defendant's eligibility for HUD assistance was irrelevant under HRE rule 401 and thus inadmissible under rule 402 when evidence was probative of and relevant to defendant's requisite intent, defendant's right to present a complete defense violated. 91 H. 275, 982 P.2d 904.

References to race that do not have an objectively legitimate purpose constitute a particularly egregious form of prosecutorial misconduct. 91 H. 405, 984 P.2d 1231.

Where there was a reasonable possibility that prosecutor's comment during closing argument might have contributed to defendant's conviction, prosecutor's comment constituted prosecutorial misconduct that denied defendant right to a fair trial. 91 H. 405, 984 P.2d 1231.

Defendant's constitutional right to unanimous verdict not violated as §707-715 defines a single criminal offense; subsections (1) and (2) constitute alternative means of establishing the mens rea of the offense of terroristic threatening--either one giving rise to the same criminal culpability. 92 H. 577, 994 P.2d 509.

Where evidence concerned only a single incident of culpable conduct, trial court was not required to read the jury a specific unanimity instruction; right to unanimous verdict thus not violated. 93 H. 199, 998 P.2d 479.

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.

Juror questioning of witnesses did not deprive defendant of fair and impartial trial where questions posed by jurors were carefully reviewed by the trial court and questions tending to elicit improper or inadmissible evidence were excluded. 97 H. 206, 35 P.3d 233.

Although prosecutor's remark that the reasonable doubt standard "was never meant to provide a shield for a guilty man" had the potential to invite the jury to misapply and erode the standard, and was thus improper, where the trial court immediately corrected the prosecutor and issued a curative instruction, and verdicts suggested that the jury was not unduly swayed by the isolated remark in the two week trial and gave proper consideration to all relevant circumstances, improper comment not reversible error. 98 H. 1, 41 P.3d 157.

Defendant's right not violated where defendant did not assert or show that a "distinctive group" was underrepresented in the pool of potential jurors initially selected in the case. 98 H. 1, 41 P.3d 157.

Defendant's right to a unanimous jury verdict not violated by trial court's refusal to give a specific unanimity instruction as defendant's actual and constructive possession of the methamphetamine comprised a continuing course of conduct. 99 H. 198, 53 P.3d 806.

Where negativing of defendant's mitigating extreme mental or emotional distress defense by prosecution was a material element of the offense of first degree murder such that jury unanimity was a prerequisite to returning any verdict, and trial court's special instruction expressly directed the jury to convict defendant of manslaughter if a single juror believed that the prosecution had failed to negative the mitigating defense, right to unanimous jury verdict violated. 99 H. 542, 57 P.3d 467.

The alternative states of mind potentially requisite to the charged offense of second degree theft by shoplifting, as prescribed by the definition of "intent to defraud" set forth in §708-800, does not implicate a defendant's constitutional right to a unanimous jury verdict, as guaranteed by article I, §5 and this section of the Hawaii constitution; a proper elements instruction, which sets forth the alternative states of mind prescribed by the "intent to defraud" component of second degree theft by shoplifting, does not violate defendant's constitutional right. 101 H. 389, 69 P.3d 517.

Where defendant failed to satisfy defendant's burden of establishing a prima facie showing that the possibility of juror misconduct could have substantially prejudiced defendant's right to a fair trial by an impartial jury, the trial court did not abuse its discretion by denying defendant an evidentiary hearing on defendant's motion for a new trial. 103 H. 285, 81 P.3d 1200.

Where, even if juror was sleeping and did not hear a portion of defense counsel's closing argument, juror was given correct instruction, and presumably juror followed it; thus, based on the totality of circumstances, the prosecution met its burden in establishing that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt. 108 H. 474, 122 P.3d 254.

A specific unanimity (jury) instruction is not required where (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant's action constituted a continuous course of conduct; thus, a specific unanimity instruction was not required where prosecution alleged a continuous course of conduct with respect to defendant's kidnapping charge under §707-720, but was required for defendant's attempted first degree sexual assault charge under §707-730. 121 H. 339, 219 P.3d 1126 (2009).

Where jury was not given a specific unanimity instruction with respect to the first degree terroristic threatening offense under §707-716, was never informed which act committed by defendant coincided with the two terroristic threatening counts, and convicted defendant of one count and acquitted defendant of the other, there was a genuine possibility that different jurors concluded that defendant committed different acts; thus, to correct any potential confusion in the case, a specific unanimity jury instruction should have been given to insure that the jury understood its duty to unanimously agree to a particular set of facts. 121 H. 339, 219 P.3d 1126 (2009).

Appeals court did not err in concluding that theft of state property by deception under §708-830(2) constituted a continuing offense where petitioner acted "under one general impulse" and had "but one intention and plan" to unlawfully procure public assistance from the government through a "series of acts" all directed towards the same overarching goal; thus, a specific unanimity instruction for the jury under the Hawaii constitution, article I, §5 and this section was unnecessary. 122 H. 271, 226 P.3d 441 (2010).

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

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

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

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

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

Circuit court's failure to give a specific unanimity instruction that the jury was required to agree unanimously as to the person against whom defendant used force constituted plain error and there was at least a reasonable possibility that the circuit court's error contributed to defendant's conviction; thus, the error was not harmless beyond a reasonable doubt. 131 H. 19, 313 P.3d 708 (2013).

The qualified right of access to criminal trials under article I, §4 is not extinguished by the mere necessity to conduct midtrial examination of jurors to investigate potential juror misconduct; however, a defendant's right to a fair trial under this section is an overriding interest that may require such proceedings be held in closed court. The hearing should be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. 133 H. 482, 331 P.3d 460 (2014).

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

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

Failure to inquire into circumstances of statement overheard by juror, and reliance on juror's own determination of ability to remain impartial while unaware of influences is reversible error. 2 H. App. 643, 639 P.2d 413.

Not violated by bailiff's statement to jury foreperson that jurors should all agree with verdict if polled. 6 H. App. 320, 721 P.2d 718.

Where trial court found statements of jurors on voir dire credible, statements were sufficient to establish beyond reasonable doubt that defendant was not denied an impartial jury. 85 H. 49 (App.), 936 P.2d 1297.

Where State failed to rebut presumption of prejudice to defendant resulting from juror's improper investigation of details concerning defendant's welfare status, court properly granted motion for new trial. 89 H. 215 (App.), 971 P.2d 304.

Plain error where trial court's answer to jury communication was prejudicially insufficient, misleading and affected defendant's constitutional right to a unanimous verdict as jury may have wrongly believed based on court's answer that if they failed to reach unanimous agreement as to the affirmative defense of entrapment, the defense was not applicable and a guilty verdict was required. 90 H. 489 (App.), 979 P.2d 85.

Where there was a distinct and reasonable possibility that trial court's error in commenting upon the location of the incriminating items contributed to the conviction of the defendants, error materially impinged upon defendant's right to trial by jury, and error was not harmless beyond a reasonable doubt. 92 H. 675 (App.), 994 P.2d 607.

Where there was no genuine possibility that the jurors were not unanimous as to the conduct for which defendant was found culpable, trial court's failure to give specific unanimity instruction as to the methamphetamine manufacturing offense did not violate defendant's substantial due process right to a unanimous jury verdict. 95 H. 365 (App.), 22 P.3d 1012.

Where prosecutor referred to defendants' race in opening statement, there was no curative instruction given to address the inflammatory comment, trial court overruled defense counsel's timely objection, and the case against defendants, which hinged on the credibility of complainant, was not so overwhelming as to outweigh the inflammatory comment, prosecutor's references to race might have contributed to the convictions of defendants; thus, convictions set aside. 98 H. 358 (App.), 48 P.3d 605.

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

Jury of the district.

Requirements of HRPP rule 18 and this section having been satisfied, venue was proven beyond a reasonable doubt. 78 H. 185, 891 P.2d 272.

Referred to: 51 H. 195, 456 P.2d 805.

Jury trials.

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

Section modeled after Sixth Amendment of federal constitution. 51 H. 612, 466 P.2d 422.

Driving under influence is serious crime entitling accused persons right to jury trial; statutory amendment limiting incarceration periods did not reduce seriousness of crime. 72 H. 597, 825 P.2d 1065.

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

Defendant charged with driving after license suspended for driving under influence of intoxicating liquor in violation of §291-4.5 (1985), not entitled to jury trial. 75 H. 68, 856 P.2d 1240.

Because the record was silent as to any colloquy between court and defendant, counsel's waiver of client's right was invalid, violating defendant's right to trial by jury under this section and Sixth Amendment to U.S. Constitution. 75 H. 118, 857 P.2d 576.

Charge of first-offense DUI under §291-4, as amended by Act 128, L 1993 was constitutionally petty; being a constitutionally petty offense, no right to a jury trial attached to first-offense DUI. 76 H. 360, 878 P.2d 699.

Defendant did not have a right to jury trial on prostitution charges. 77 H. 162, 883 P.2d 83.

Offense is presumptively a petty offense to which right to a jury trial does not attach, if maximum authorized term of imprisonment for offense does not exceed thirty days. 77 H. 162, 883 P.2d 83.

Where no term of imprisonment was authorized under §266-25 for violation of administrative rule regulating boat moorings, violation a presumptively petty offense for which right to jury trial did not attach; consideration of other relevant factors failed to overcome presumption. 84 H. 65, 929 P.2d 78.

Findings under §706-662(5) regarding (a) the age or handicapped status of the victim and (b) whether "such disability is known or reasonably should be known to the defendant" entail "intrinsic" facts; Hawaii constitution requires these findings to be made by the trier of fact, not the sentencing court. 91 H. 261, 982 P.2d 890.

When a fact susceptible to jury determination is a predicate to the imposition of an enhanced sentence, the Hawaii constitution requires that such factual determinations be made by the trier of fact. 91 H. 261, 982 P.2d 890.

Under totality of facts and circumstances, defendant knowingly and voluntarily waived right to jury trial; defendant was aware of right, articulated to trial court the difference between a jury trial and judge trial, defendant's counsel stated counsel had explained difference to defendant, and defendant affirmatively indicated to trial court that waiver was voluntary and a result of defendant's own reflection. 93 H. 63, 996 P.2d 268.

There is no constitutional right to a jury trial for a first-time driving under the influence of drugs offense under §291-7 (1993) as the offense is a "petty" and not "serious" offense. 97 H. 259, 36 P.3d 803.

Where record indicated that trial court conducted a colloquy with defendant regarding defendant's right to a trial by jury and that defendant orally waived this right, defendant subsequently failed to overcome burden of proving by a preponderance of the evidence that defendant's waiver of right to jury trial was involuntary. 99 H. 312, 55 P.3d 276.

Defendant must personally give oral or written waiver of right to jury trial; waiver by defense counsel not valid in absence of any colloquy between court and defendant. 80 H. 372 (App.), 910 P.2d 143.

Right not erroneously denied where plaintiff missed ten-day jury demand deadline under DCRCP rule 38(b) without adequate excuse. 83 H. 50 (App.), 924 P.2d 544.

Where trial judge failed to engage in a colloquy with defendant to ensure that the waiver of jury trial was intelligent, knowing and voluntary, and defendant's counsel did not represent in open court that defendant was aware of defendant's right to a jury trial, under the totality of circumstances, trial court failed to obtain a valid waiver of defendant's right to a jury trial. 98 H. 77 (App.), 42 P.3d 654.

Under the totality of the circumstances, where defendant's express waiver of a jury trial was consistently clear, direct, and unequivocal throughout the entire colloquy, defendant orally waived right to trial by jury, and failed to demonstrate by a preponderance of the evidence that this waiver was involuntary. 105 H. 160 (App.), 95 P.3d 14.

Where maximum time in jail for a violation of a Hawaii administrative rule was thirty days and notwithstanding that defendant was subject to a possible maximum fine of $18,000, defendant's offense was "petty"; thus, defendant had no right to a jury trial under the Hawaii constitution. 105 H. 342 (App.), 97 P.3d 418.

Based on the totality of the circumstances, defendant failed to establish that the waiver of defendant's right to a jury trial was involuntary or improper; the family court's mass advisement, in conjunction with the family court's individualized colloquy of defendant, sufficiently apprised defendant of defendant's constitutional right to a jury trial, and defendant knowingly, intelligently, and voluntarily waived this right. 108 H. 300 (App.), 119 P.3d 608.

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

Public trial.

Manner in which defendant's family was excluded from courtroom violated defendant's right to a public trial. 91 H. 181, 981 P.2d 1127.

The right to a public trial is not implicated by the exclusion of a potential witness pursuant to the witness exclusionary rule; both the witness exclusionary rule and the right to a public trial ensure the appearance of fairness at trial; thus, defendant's right not violated by exclusion of defendant's father from the courtroom as a potential prosecution rebuttal witness. 97 H. 206, 35 P.3d 233.

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

Right to be informed.

Not violated where burglary indictment alleged all elements of the crime and record indicated the specific crime intended to be committed, though specific crime not alleged. 66 H. 312, 660 P.2d 39.

Accomplice instruction improper where each defendant was charged separately and charges did not inform them of circumstances in which they acted as accomplices. 72 H. 278, 815 P.2d 428.

State failed to adequately inform defendant of nature and cause of the §134-6(a) charge. 78 H. 66, 890 P.2d 303.

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.

Where the oral charge, when liberally construed, stated the offense of illegal camping and provided defendant with notice that defendant was being charged with camping in a "park" not designated as a campground, there was no evidence that the prosecution's use of the word "area" instead of "park" substantially prejudiced defendant, and the record indicated that defendant had actual knowledge of the nature of the charges against defendant, the oral charge was not defective; thus, defendant's rights were not violated. 123 H. 369, 235 P.3d 365 (2010).

Where the definition of "animal nuisance" in the Revised Ordinances of Honolulu §7-2.2 did not create an additional essential element of the offense, and the definition of "animal nuisance" was consistent with its commonly understood meaning, defendant had fair notice of the offense charged; thus, the oral charge against defendant, which tracked the language of §7-2.3, sufficiently alleged all of the essential elements of the offense of animal nuisance. 124 H. 385, 245 P.3d 458 (2010).

A charge of operating a vehicle under the influence of an intoxicant (OVUII) under §291E-61(a)(1) must allege the requisite mens rea in order to fully define the offense in unmistakable terms readily comprehensible to persons of common understanding, whereas an OVUII charge under §291E-61(a)(3) is an absolute liability offense for which mens rea need not be alleged or proven. 127 H. 48, 276 P.3d 617 (2012).

Where defendant charged with harassment in violation of §711-1106(1)(a) claimed that the disjunctively worded complaint left defendant unsure of how to prepare a defense: (1) because defendant was charged with violating only one subsection of the statute, codifying a single category of harassing behavior, the complaint did not violate the Jendrusch rule; and (2) when charging a defendant under a single subsection of a statute, the charge may be worded disjunctively in the language of the statute as long as the acts charged are reasonably related so that the charge provides sufficient notice to the defendant. 131 H. 220, 317 P.3d 664 (2013).

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

Where furloughee on extended work furlough failed to check in with his case manager at work furlough center and was charged with escape in the second degree under §710-1021, defendant was not given fair notice of the offense with which he was charged in accordance with this section, as the definition of "custody" was limited in the charging instrument and throughout the trial in a manner not unmistakable or readily comprehensible to a person of common understanding. 138 H. 254, 378 P.3d 970 (2016).

Where the record did not establish that defendant knowingly, intelligently, and voluntarily changed plea to "guilty" on charge of murder in the second degree, the intermediate court of appeals erred in affirming circuit court's denial of defendant's motion to withdraw guilty plea. 138 H. 268, 378 P.3d 984 (2016).

Violated where minutes before trial was to commence, complaint against defendant amended from driving while license suspended to driving without a license. 81 H. 76 (App.), 912 P.2d 573.

Where instances of disjunctive charging that defendant challenged involved reasonably related acts under a single subsection of a statute or different states of mind, the charges gave defendant fair notice of the nature and cause of the accusation against defendant and what defendant needed to be prepared to meet. 134 H. 264 (App.), 339 P.3d 1065 (2014).

Right to counsel.

See also notes to U.S. Const. Amend. 6.

Applied. 56 H. 23, 525 P.2d 1108.

There is no right to counsel at a post-arrest photographic display. 59 H. 167, 578 P.2d 236.

Effective assistance of counsel. 64 H. 62, 636 P.2d 742.

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

Violated where questioning continued after right invoked; use of defendant's unsuppressed statements not harmless beyond a reasonable doubt. 69 H. 51, 731 P.2d 1264.

Violated by introduction of evidence that defendant invoked right, where whether defendant had done so not at issue. 69 H. 68, 733 P.2d 690.

Claim that failure to call expert witnesses to rebut State's DNA profiling evidence introduced at motion in limine constituted ineffective assistance of counsel was meritless. 73 H. 130, 828 P.2d 1274.

Counsel was not ineffective in failing to raise contention that defendant had not waived right to be present at trial where defendant had voluntarily absented oneself after trial had begun. 73 H. 147, 828 P.2d 281.

Defendant has burden to establish ineffective assistance of counsel and meet two-part test; under Hawaii constitution, defendant afforded greater protection of right to effective assistance of counsel than under U.S. Constitution. 74 H. 54, 837 P.2d 1298.

No denial of effective assistance of counsel where counsel waived defendant's presence at conference settling jury instructions, withdrew insanity defense, and failed to object to examiner's testimony. 74 H. 141, 838 P.2d 1374.

Where petitioner's convictions on counts I (attempted first degree murder), II (second degree murder), and III (attempted second degree murder) violated §701-109(1)(c)'s clear prohibition against inconsistent factual findings, the failure to raise this issue, both at trial and on appeal, resulted in withdrawal of not only a potentially meritorious defense, but a defense that would have altered the outcome. 74 H. 442, 848 P.2d 966.

Post-conviction ineffective assistance of counsel HRPP rule 40 petition not prejudiced where defendant alleges facts that, if proven, would entitle defendant to relief and claim is not patently frivolous and without trace of support in the record. 75 H. 419, 864 P.2d 583.

Trial counsel's alleged errors did not constitute ineffective assistance of counsel where defendant argued, inter alia, that trial counsel should have obtained expert analysis of white powder defendant provided to undercover police officer to determine how much "pure" cocaine it contained; rejection of defendant's claim that trial counsel's failure to interview and subpoena defendant's girlfriend amounted to ineffective assistance was without prejudice to a subsequent HRPP rule 40 petition. 77 H. 72, 881 P.2d 1218.

Knowing, intelligent and voluntary waiver of right to counsel where, inter alia, defendant persistently refused legal assistance despite court's repeated invitation and amply demonstrated capacity to proceed pro se. 81 H. 198, 915 P.2d 672.

No ineffective assistance of counsel where defense counsel's failure to object to prosecution witnesses' testimony did not result in the withdrawal or substantial impairment of a meritorious defense. 81 H. 293, 916 P.2d 703.

Where attorney-client privilege was not applicable to communications because they were not "confidential" but "voluntarily disclosed" in known presence of third party who was neither co-defendant nor representative of the client or of the lawyer and in a place accessible to the general public, right to effective assistance not violated. 84 H. 229, 933 P.2d 66.

A defense counsel's representation is constitutionally ineffective under the Hawaii constitution if: (1) a relationship giving rise to a conflict of interest existed between defense counsel and his/her clients; and (2) either the relationship adversely affected defense counsel's performance, or the client did not consent to the relationship. 88 H. 19, 960 P.2d 1227.

No ineffective assistance of counsel based on various grounds, including conflict of interest and failure of counsel to: file pre-trial motion to dismiss indictment based on insufficient evidence; investigate and obtain testimony of witnesses; call certain witnesses; object to admission of certain evidence; and challenge selection of jurors or composition of jury. 88 H. 19, 960 P.2d 1227.

Where defendant could have challenged the validity of the search warrant if given a range of dates of the observations by prosecution's confidential informant and defendant's attorney could file the appropriate pre-trial motions and prepare for trial without the exact dates, right to effective assistance of counsel not violated by defendant not knowing the exact dates of the observations. 88 H. 396, 967 P.2d 228.

Right to assistance of counsel and to present a defense not violated by trial court's refusal to allow defendant to present oral argument on motion for judgment of acquittal; no constitutional right to argue a motion for judgment of acquittal. 91 H. 288, 983 P.2d 189.

An attorney "employed and paid by the county" for the benefit of a police officer, to defend the officer in a criminal case pursuant to §52D-8 and in related civil cases, in which the county has asserted claims adverse to the officer, is not per se, by virtue of such employment and payment, deemed ineffective counsel. 95 H. 9, 18 P.3d 871.

Defendant was entitled to a hearing on question of whether counsel who filed motion to withdraw guilty plea should have been substituted as counsel of record before trial court summarily denied defendant's motion on the ground that a withdrawal and substitution of counsel had not been filed under HRPP rule 57. 95 H. 177, 19 P.3d 1289.

Defendant's trial counsel provided defendant with ineffective assistance in failing to seek suppression of defendant's confession on the ground that defendant's inculpatory statement was induced by detective's use of evidence that detective had obtained as a result of executing an unlawful search warrant. 98 H. 387, 49 P.3d 353.

Ineffective assistance of counsel when defense counsel's errors and omissions resulted in the possible impairment of a potentially meritorious defense; defense counsel failed to object to prosecution's rebuttal argument commenting on defendant's failure to testify and counsel intentionally elicited detective's opinion that defendant had murdered defendant's wife. 102 H. 504, 78 P.3d 317.

A criminal defendant has a constitutional right to confer with his or her counsel during a routine recess taken during trial proceedings, even when such recess is taken in the middle of defendant's testimony, except when a request for a non-routine recess for the purposes of conferring with counsel would, in the discretion of the trial court, interfere with the orderly and expeditious progress of the trial; thus, trial court erred when it ordered defendant not to speak to defendant's standby counsel during the 15-minute recess taken during defendant's cross examination. 121 H. 339, 219 P.3d 1126 (2009).

Although trial court erred when it ordered defendant not to speak to defendant's standby counsel during the 15-minute recess taken during defendant's cross examination, trial court's constitutional error was harmless beyond a reasonable doubt where (1) trial court communicated the advice that defendant's counsel wanted to impart to defendant during the 15-minute recess; (2) there was no evidence that defendant wished to speak to counsel or requested a recess for that purpose; (3) defendant did not object to trial court's order; and (4) defendant chose to represent defendant's self and acted pro se both before and during trial. 121 H. 339, 219 P.3d 1126 (2009).

Petitioner was denied petitioner's right to privately retained counsel of petitioner's choice under this section where circuit court merely considered only the timeliness of the request in making its determination to deny the motion for substitution and continuance; record did not reflect that the circuit court considered, for example, the length of the delay requested, the impact of the delay on the prosecution, witnesses or the court, and whether the delay was for a dilatory purpose; consideration of these factors supported the conclusion that the circuit court abused its discretion in denying the motion. 129 H. 296, 299 P.3d 756 (2013).

A defendant who expressly requests counsel for post-verdict motions has a right to counsel, notwithstanding a prior waiver of counsel during trial. Defendant's pre-trial track record of firing counsel was insufficient to establish that defendant's post-verdict request for counsel was made in bad faith. 131 H. 537, 319 P.3d 456 (2014).

Defendant's right to counsel was violated when the circuit court denied defendant's motion for appointment of counsel for sentencing. 131 H. 537, 319 P.3d 456 (2014).

Where circuit court failed to conduct a penetrating and comprehensive inquiry regarding the conflict of interest between defendant and defense counsel and defendant did not voluntarily consent to the attorney-client relationship, the circuit court abused its discretion in denying defendant's motion for withdrawal and substitution of counsel; circuit court's denial of the motion resulted in a denial of effective assistance of counsel. 134 H. 308, 340 P.3d 440 (2014).

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

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

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

No showing of knowing and intelligent waiver; infringement of right presumed prejudicial and State must rebut presumption and prove error was harmless beyond a reasonable doubt. 4 H. App. 614, 672 P.2d 1036.

Standard for effective assistance of appellate counsel; right not violated. 6 H. App. 331, 720 P.2d 1015.

No right to hybrid representation. 8 H. App. 330, 802 P.2d 482.

Where an accused has been arrested and interrogated by police and has not been specifically advised by court or accused's counsel that accused has constitutional right to counsel at every stage of proceeding following that arrest, accused cannot be held to have knowingly and intelligently waived that right, and any statements made by accused to police absent the advice are inadmissible. 9 H. App. 447, 845 P.2d 1194.

Where defendant contended that defendant was denied constitutional right to effective assistance of counsel at trial because defendant's trial counsel, deputy public defender, concurrently represented defendant's brother in another criminal case and defendant's defense at trial was that brother was the actual perpetrator of offenses for which defendant was convicted, case remanded for evidentiary hearing to determine whether conflict of interest actually existed when trial counsel represented defendant and, if so, whether the conflict prejudiced defendant's right. 77 H. 374 (App.), 884 P.2d 1150.

The court's assumption of defense counsel's role by persuading defendant to relinquish defendant's right to testify was an interference with the attorney-client relationship protected by Sixth Amendment to U.S. Constitution and this section; the intervention by the court constituted plain error; the error was prejudicial and not harmless beyond a reasonable doubt. 78 H. 115 (App.), 890 P.2d 702.

Indigent defendant charged with offense punishable by term of imprisonment entitled at trial to be assisted by appointed counsel. 80 H. 246 (App.), 909 P.2d 574.

Defendant did not waive right to court-appointed counsel where defendant requested substitute court-appointed counsel and was not afforded reasonable opportunity to show good cause for a substitute court-appointed counsel. 80 H. 262 (App.), 909 P.2d 590.

Absent valid waiver of right, use of prior uncounseled felony convictions to enhance prison sentence violates defendant's right to counsel. 81 H. 421 (App.), 918 P.2d 228.

If sentencing court gives consideration to defendant's previous convictions in choosing to impose consecutive terms of imprisonment, court must ensure that any prior felony, misdemeanor, and petty misdemeanor conviction relied on was with defendant receiving assistance of counsel. 81 H. 421 (App.), 918 P.2d 228.

No ineffective assistance of counsel where counsel's failure to request trial continuance when police officer was unavailable to testify at trial did not result in prejudice to defendant. 82 H. 394 (App.), 922 P.2d 1007.

No ineffective assistance where, inter alia, defendant's counsel adequately prepared for trial, did not fail to offer motion to sever trials, and no evidence that fact that defendant's counsel was not lead counsel was prejudicial to defendant's entrapment defense. 82 H. 499 (App.), 923 P.2d 916.

Right not violated by trial court's denial of defendant's motion to withdraw and substitute counsel as there was no good cause to warrant substitution where, despite being advised of its inadmissible nature, defendant insisted attorney proffer character evidence and character witnesses at trial, there was no "complete breakdown of trust and confidence" between attorney and defendant, and defendant elected to continue with attorney, without further protest, and did not aver that defendant wanted to go to trial pro se. 101 H. 112 (App.), 63 P.3d 420.

Where defendant had not been charged with any crime when defendant gave defendant's statement, defendant's right not violated. 101 H. 344 (App.), 68 P.3d 618.

Ineffective assistance of counsel where public defender (PD) mistakenly concluded that HRPP rule 16 required PD to turn over defendant's toxicology report to the State and failed to realize that by doing so, PD was waiving defendant's physician-patient privilege, and PD's errors substantially impaired defendant's potentially meritorious defense as evidence that defendant tested positive for cocaine undermined the credibility of the defendant. 107 H. 282 (App.), 112 P.3d 768.

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

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

Where instances of disjunctive charging that defendant challenged involved reasonably related acts under a single subsection of a statute or different states of mind, trial counsel's failure to object to the disjunctive charging language did not reflect counsel's lack of skill, judgment, or diligence and did not result in the withdrawal or substantial impairment of a potentially meritorious defense; defendant's claim of ineffective assistance rejected. 134 H. 264 (App.), 339 P.3d 1065 (2014).

Self-representation.

Right of self-representation is guaranteed by this section. Mere appointment of standby counsel over a defendant's objection does not per se violate this section; the level of standby counsel's participation determines whether a defendant's constitutional right of self-representation has been violated. 75 H. 307, 861 P.2d 11.

Speedy trial.