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The Constitution
of the
State of Hawaii

Incorporating the November 7, 2006 election changes,
and including the annotation.

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Article I - Bill of Rights

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Sections

1Political power
2Rights of individuals
3Equality of rights
4Freedom of religion, speech, press, assembly and petition
5Due process and equal protection
6Right to privacy
7Searches, seizures and invasion of privacy
8Rights of citizens
9Enlistment; segregation
10Indictment; preliminary hearing; information; double jeopardy; self-incrimination
11Grand jury counsel
12Bail; excessive punishment
13Trial by jury, civil cases
14Rights of accused
15Habeas corpus and suspension of laws
16Supremacy of civil power
17Right to bear arms
18Quartering of soldiers
19Imprisonment for debt
20Eminent domain
21Limitations of special privileges
22Construction
23Marriage
24Public access to information concerning persons convicted of certain offenses against children and certain sexual offenses
25Sexual assault crimes against minors

Note:

For proposed constitutional amendment to this article adding a new section on sexual assault crimes against minors, see SB 2246, L 2006, pg. 1268.

Law Journals and Reviews:

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

1.1
Political power

All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority.  [Am Const Con 1978 and election Nov 7, 1978]

1.2
Rights of individuals

All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities.  [Am Const Con 1978 and election Nov 7, 1978]

Case Notes:

See also notes to U.S. Const. Amend. 14.

HRS §746-6, making presence in barricaded place a crime, was invalid as it denied the freedom of movement and freedom of association guaranteed hereunder. 52 H. 604, 483 P.2d 997.

HRS §286-81(1)(A), requiring motorcycle safety helmets, is not a mere self-protective legislation and is valid. 55 H. 138, 516 P.2d 709.

Traffic statutes, §§286-25, 286-102, 291-11.6, and 431:10C-104(b), did not violate defendant’s freedom of movement. 77 H. 222 (App.), 883 P.2d 644.

A chapter 586 protective order does not unconstitutionally curtail a person's freedom of movement. 85 H. 197 (App.), 940 P.2d 404.

As §711-1102's limit on freedom of association and movement is only within the immediate vicinity of the disorderly conduct and there is no "unlimited and indiscriminately sweeping infringement upon the freedom of movement and association", §711-1102 does not violate this section. 101 H. 153 (App.), 64 P.3d 282.

Mentioned: 51 H. 516, 465 P.2d 573; 53 H. 327, 493 P.2d 306.

1.3
Equality of rights

Equality of rights under the law shall not be denied or abridged by the State on account of sex. The legislature shall have the power to enforce, by appropriate legislation, the provisions of this section.  [L 1972, SB No 1408-72 and election Nov 7, 1972; ren Const Con 1978 and election Nov 7, 1978]

Law Journals and Reviews:

Hawaii's Equal Rights Amendment: Its Impact On Athletic Opportunities and Competition For Women. 2 UH L. Rev. 97.

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai`i Supreme Court. 14 UH L. Rev. 189.

For Better or for Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same Sex Marriage in Hawaii. 16 UH L. Rev. 447.

Case Notes:

Requirement that a woman visitor to an all-male prison wear a brassiere does not infringe upon this section. 59 H. 346, 581 P.2d 1164.

Classification based on unique physical characteristics of men or women is not invalid. 62 H. 120, 612 P.2d 526.

1.4
Freedom of religion, speech, press, assembly and petition

No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

Granting permission to student religious group to use university facilities on same basis as other student groups is not in contravention of U.S. or State Constitution. Att. Gen. Op. 64-54.

Policy regarding devotional exercise in public schools is contrary to the First and Fourteenth Amendments to the U.S. Constitution. Att. Gen. Op. 66-15.

Statute which would include newspapers within definition of public utility and subject them to PUC jurisdiction would be violative of freedom of the press. Att. Gen. Op. 74-11.

Law Journals and Reviews:

Metromedia, Inc. v. City of San Diego: The Conflict Between Aesthetic Zoning and Commercial Speech Protection; Hawaii's Billboard Law Under Fire, Note. 5 UH L. Rev. 79.

Estes v. Kapiolani Women's and Children's Medical Center: State Action and the Balance Between Free Speech and Private Property Rights in Hawaii. 13 UH L. Rev. 233.

The Lum Court and Native Hawaiian Rights. 14 UH L. Rev. 377.

The Lum Court and the First Amendment. 14 UH L. Rev. 395.

Burdick v. Takushi: Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate. 14 UH L. Rev. 715.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah: Reaffirming the Supreme Court's Religious Free Exercise Jurisdiction. 16 UH L. Rev. 401.

Curing A Bad Reputation: Reforming Defamation Law. 17 UH L. Rev. 113.

Hawai`i's Response to Strategic Litigation Against Public Participation and the Protection of Citizens' Right to Petition the Government. 24 UH L. Rev. 411.

Emergency Contraception in Religious Hospitals: The Struggle Between Religious Freedom and Personal Autonomy. 27 UH L. Rev. 65.

Case Notes:

Freedom of press.

See also notes to U.S. Const. Amend. 1.

News media liable for negligent defamation of private person. 56 H. 522, 543 P.2d 1356.

The right to free speech under this section was not violated by city ordinance requiring that the area of a booth designated for viewing pornographic videos purchased on the premises of a panoram business be visible from the booth's entryway. 107 H. 314, 113 P.3d 190.

Restraining orders.

Obstructing use of university office constituted conduct outside of First Amendment rights, and ex parte temporary restraining order was not constitutionally invalid. 52 H. 427, 478 P.2d 320.

Freedom of religion.

Under the First Amendment to the U.S. Constitution and this section, civil courts have no authority to resolve disputes that turn on matters of church doctrine, practice, polity, or administration or that cannot be decided without resolving underlying controversies over such matters. When faced with such claims, civil courts must dismiss them. 77 H. 383, 885 P.2d 361.

Not violated by director's failure to grant building height restriction zoning variance for temple hall where plaintiff Buddhist temple failed to demonstrate substantial burden on its free exercise of religion because of height restriction. 87 H. 217, 953 P.2d 1315.

Freedom of speech.

In lawsuit involving a challenge to city and county of Honolulu's practice of charging nonresidents a $3.00 fee to enter bay designated a marine life conservation district and nature preserve, plaintiff's First Amendment rights not violated and ordinance instituting the fee not overbroad. 215 F. Supp. 2d 1098.

Right to receive information and ideas not infringed by statute proscribing possession of marijuana. 56 H. 501, 542 P.2d 366.

Protected speech does not include unprotected obscenity under the First Amendment of U.S. Constitution. 58 H. 440, 573 P.2d 945.

Procedural requirements for seizure of materials in obscenity prosecutions. 63 H. 596, 634 P.2d 80.

Standard for suppression of evidence where seizure violated freedom of speech or expression. 63 H. 596, 634 P.2d 80.

Purchase of allegedly obscene material from "willing sellers" was actually "preconceived search" designed to evade warrant procedures whose specific purpose is protection of First Amendment freedoms. 64 H. 109, 637 P.2d 1095.

Police involvement in enforcing the hospital's right against trespass did not convert actions into a state action; appellants did not have a right to distribute leaflets and express anti-abortion views on hospital premises. 71 H. 190, 787 P.2d 216.

Attorneys' extrajudicial statements may be subject to prior restraint by trial court upon demonstration that the activity restrained poses a serious and imminent threat to defendant's right to a fair trial and to the fair administration of justice. 73 H. 499, 835 P.2d 637.

Defendant's statement not false or defamatory where statement was rhetorical hyperbole--figurative or hyperbolic language that would negate the impression that defendant was asserting an objective fact about plaintiff. 88 H. 94, 962 P.2d 353.

Neither the free speech clause of the U.S. Constitution nor that of the Hawaii constitution impose a temporal "immediacy" requirement that must be met before words become subject to criminal prosecution as "true threats" under §§707-715 and 707-716. 95 H. 465, 24 P.3d 661.

Section 852-1 not unconstitutional as it does not prohibit picketing or the communication of messages altogether, is specifically aimed at conduct causing an obstruction of ingress to or egress from public or private places, and individuals may continue to exercise rights guaranteed by the First Amendment and article I, §4 of the Hawaii constitution as long as they do not do so in a manner prohibited by section. 89 H. 27 (App.), 968 P.2d 194.

Defendant's continuing physical obstruction of the lawful work by the Hawaii county department of water supply on Hawaiian home lands property constituted conduct clearly outside the scope of any First Amendment right to freedom of speech. 105 H. 319 (App.), 97 P.3d 395.

Hawaii Legal Reporter Citations:

Due process. 77-2 HLR 77-793.

1.5
Due process and equal protection

No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

See also notes to U.S. Const. Amend. 14.

Equal protection--extra tax on liquid fuel imposed only in city and county of Honolulu would not be invalid. Att. Gen. Op. 63-23.

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.

Law Journals and Reviews:

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.

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

Sandy Beach Defense Fund v. City and County of Honolulu: The Sufficiency of Legislative Hearings in an Administrative Setting. 12 UH L. Rev. 499.

State v. Levinson: Limitations on a Criminal Defendant's Use of Peremptory Challenges. 13 UH L. Rev. 279.

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai'i Supreme Court. 14 UH L. Rev. 189.

Burdick v. Takushi: Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate. 14 UH L. Rev. 715.

Hawai'i's New Administrative Driver's License Revocation Law: A Preliminary Due Process Inquiry. 14 UH L. Rev. 853.

For Better or for Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same Sex Marriage in Hawaii. 16 UH L. Rev. 447.

The Kamehameha Schools/Bishop Estate and the Constitution. 17 UH L. Rev. 413.

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

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

Re-Identifying American State Democracy: Implications for Same-Sex Marriage and the Nonfungibility of Hawai'i in the Exotic 1950 Statehood Constitution. 22 UH L. Rev. 1.

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

Prudent Use of Judicial Minimalism: Why Minimalism May Not be Appropriate in the Context of Same-Sex Marriage. 27 UH L. Rev. 501.

Case Notes:

See also notes to U.S. Const. Amends. 5, 14.

Civil rights.

Employer's policy of denying any extended leave during employee's first year of employment violated Hawaii administrative rule §12-46-108, which was adopted to enforce the legislative mandate of §378-2(1)(A) and Hawaii's constitutional prohibition against sex discrimination in the exercise of a person's civil rights in employment. 89 H. 269, 971 P.2d 1104.

Due process.

Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was arbitrary and irrational, landowners could not meet burden of showing irrationality. 124 F.3d 1150.

Applicable only to state action not private action. 698 F. Supp. 1496.

Where plaintiff alleged that condominium lease-to-fee ordinance violated plaintiff's substantive due process rights, ordinance was a rational exercise of legislative power. 832 F. Supp. 1404.

Ordinance proscribing "presence" at cockfight is too vague to satisfy requirement of due process. 50 H. 384, 441 P.2d 333.

HRS §634-69 providing for service of summons on motorist by publication does not violate due process clause. 50 H. 484, 443 P.2d 155.

Public employees seeking accidental disability retirement benefits are entitled to hearing on contested issues before the board of trustees. 52 H. 212, 473 P.2d 866.

HRS §772-1 making criminal one's wandering about at night without visible business was unconstitutional for vagueness. 52 H. 527, 480 P.2d 148.

HRS §709-33, together with other sections of Part II, Chapter 709, was invalid for failing to require proof of guilt beyond reasonable doubt. 53 H. 40, 487 P.2d 283.

HRS §621-22, allowing introduction of prior convictions to impeach credibility of defendant in criminal case was unconstitutional. 53 H. 254, 492 P.2d 657.

HRS §712-1214(1)(a), with definitions in §712-1210(5), was not void for vagueness. 58 H. 440, 573 P.2d 945.

Procedure followed did not deprive defendant of defendant's right not to be tried while incompetent. 60 H. 17, 586 P.2d 1028.

Hearings on applications for staff privileges at hospitals. 63 H. 430, 629 P.2d 1116.

Irrebuttable presumption created by compulsory retirement age has a rational basis and therefore does not violate due process. 63 H. 501, 630 P.2d 629.

Notice provisions of tax lien statute failed to meet minimum standards of due process. 64 H. 4, 635 P.2d 938.

Ordinance prohibiting distribution of commercial handbills in Waikiki was void for vagueness. 64 H. 148, 637 P.2d 1117.

No violation in denial by trial court of defendant's request to examine witnesses where claim was impermissibly suggestive identification. 64 H. 217, 638 P.2d 324.

Portion of election fraud law void for vagueness. 67 H. 398, 688 P.2d 1152.

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.

Violated by court's failure to inform defendant of penalties for offense to which defendant pled guilty. 68 H. 498, 720 P.2d 1010.

Defendant denied fair trial when prosecutor expressed personal view to jury that defendant was guilty and defendant's witnesses were not credible. 68 H. 659, 728 P.2d 1301.

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

Not violated by proceedings conducted by city council when acting upon Shoreline Management Act permit. 70 H. 361, 773 P.2d 250.

Judge who lodges complaint for criminal contempt may not decide the outcome if there is no jury trial. 70 H. 459, 776 P.2d 1182.

Rule 412, Hawaii rules of evidence, cannot override the constitutional rights of the accused. 71 H. 115, 785 P.2d 157.

Rape victim's clothing was not crucial evidence as to result in an unfair trial. 71 H. 183, 787 P.2d 671.

Ethnical exclusion by prosecution. 71 H. 300, 788 P.2d 841.

Defendant's right to a fair trial was denied due to State's suppression of evidence. 71 H. 347, 791 P.2d 392.

Mandatory sentences are not unconstitutional; there is no constitutional right to probation. 71 H. 485, 795 P.2d 842.

In criminal cases, peremptory challenges cannot be based solely on race, religion, sex, or ancestry. 71 H. 492, 795 P.2d 845.

Violated where there were unreasonable delays by administrative malfunctions of prosecutor's office and loss of tapes by police. 71 H. 537, 797 P.2d 1312.

Right to fair trial denied where sum of prosecutor's conduct was prejudicial. 72 H. 278, 815 P.2d 428.

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.

Claim for relief against state officials based on alleged illegality of exchange of ceded lands was barred by State's sovereign immunity. 73 H. 578, 837 P.2d 1247.

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.

Requires unbiased administrative adjudicators; no violation where §88-77 trustees not shown to have pecuniary or institutional disqualifying interest in adjudication. 74 H. 181, 840 P.2d 367.

Written notice of specific charges not required for §710-1077(1)(a) direct summary criminal contempt case; contemnor's misconduct and judge's response did not require contempt trial before different judge. 74 H. 267, 842 P.2d 255.

Use at sentencing of statements previously obtained in violation of a defendant's privilege against self-incrimination violates that defendant's privilege against self-incrimination and right to due process. 74 H. 424, 848 P.2d 376.

Third-party agreements homestead lessees entered into with third party non-Hawaiian farmers could not be considered property interests. 76 H. 128, 870 P.2d 1272.

Appellant had a right under the due process clause, to be given reasonable notice of the circuit court's intention to apply §706-660.1(a) (1985) in sentencing appellant in connection with kidnapping conviction and to be afforded the opportunity to be heard with respect thereto. 76 H. 517, 880 P.2d 192.

Coercive conduct of a private person may be sufficient to render a confession inadmissible based on this section and article I, §10 of Hawai'i constitution. 77 H. 51, 881 P.2d 538.

Because appellants had been afforded an adequate opportunity to challenge the fine assessed by department of land utilization on appeal--at both administrative and judicial levels--before they incurred any obligation to pay it, the application of the procedural mechanism set forth in section of land use ordinance had not violated their right to due process of law. 77 H. 168, 883 P.2d 629.

Supreme court declined to hold that State must tape record a custodial interrogation in order to establish a valid waiver of a criminal defendant's constitutional rights. 77 H. 403, 886 P.2d 740.

Presumption of nonconsent imposed on appellant a burden of persuasion of the nonexistence of an essential element of the crime with which appellant was charged; so construed, the presumption would violate due process clauses of Fourteenth Amendment to U.S. Constitution and this section by virtue of improperly shifting burden of proof to appellant. 78 H. 262, 892 P.2d 455.

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.

Reversible error where jury may have reached verdict by improperly shifting burden of proof from prosecution to defense by concluding that defendant had not established defendant's claim of extreme mental or emotional distress before considering whether prosecution had disproved that defense beyond a reasonable doubt. 80 H. 172, 907 P.2d 758.

Defendant received adequate notice that consecutive sentences may be imposed by sentencing court where court had that discretion by statute, and plain language of §706-668.5 informed defendant that defendant may be sentenced to consecutive sentences. 81 H. 309, 916 P.2d 1210.

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 §14 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.

Section 704-415 does not violate due process principles; at release hearing, insanity acquittee bears burden of proving by preponderance of evidence freedom from mental illness and dangerous propensities. 84 H. 269, 933 P.2d 606.

Where violation of misdemeanor offense under §712-1248(1)(d) also constituted violation of felony offense under §712-1247(1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights. 86 H. 48, 947 P.2d 360.

In products liability action, cumulative effect of three alleged errors by trial court did not deny defendants right to fair trial where overwhelming and substantial evidence supported jury's verdict. 86 H. 214, 948 P.2d 1055.

Although appellant was not afforded an opportunity to cross-examine witnesses who had testified at a public hearing but not before the zoning board of appeals, error was harmless beyond a reasonable doubt. 87 H. 217, 953 P.2d 1315.

Director's exposure to materials outside the record constitutionally harmless beyond a reasonable doubt as director expressly declined to consider material in rendering decision. 87 H. 217, 953 P.2d 1315.

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 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.

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.

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.

For purposes of this section, due process requires that an order for the nonemergency involuntary administration of antipsychotic medications to a criminal defendant must be based upon facts found by clear and convincing evidence. 91 H. 319, 984 P.2d 78.

Three separate findings required by trial court before criminal defendant may constitutionally be involuntarily medicated with antipsychotic drugs, where it is alleged that the medication is necessary because the defendant poses a danger to himself or herself or others. 91 H. 319, 984 P.2d 78.

Out-of-state attorneys, who were granted pro hac vice status, not denied procedural due process prior to revocation of status and imposition of sanctions where three separate oral notices were given to one attorney and to local counsel. 91 H. 372, 984 P.2d 1198.

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.

In sex assault case, jury instruction as to ineffective consent prejudicially affected defendant's rights because (1) the jury was instructed that it could convict defendant based on the absence of consent under §702-233 or any of the four grounds of ineffective consent under §702-235, (2) there was a reasonable possibility that the verdict was based upon at least one of the four grounds of ineffective consent, and (3) there was legally insufficient evidence to support any of the four grounds of ineffective consent. 96 H. 161, 29 P.3d 351.

Unanimity is not required where alternative means of establishing an element of an offense are submitted to the jury, provided that there is no reasonable possibility that the jury's verdict was based on an alternative unsupported by sufficient evidence. 96 H. 161, 29 P.3d 351.

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.

As §846E-3 operated to deprive defendant of a protected liberty interest and provided defendant with neither notice nor an opportunity to be heard prior to notifying the public of defendant's status as a convicted sex offender, §846E-3 denied defendant due process under this section; §846E-3 thus void and unenforceable. 97 H. 285, 36 P.3d 1255.

As the registration requirements of chapter 846E do not interfere with any of a sex offender's protected liberty interests, the protections of procedural due process are not triggered. 97 H. 285, 36 P.3d 1255.

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.

As an aspect of procedural due process, individuals must, as needed, be provided an interpreter at family court proceedings where their parental rights are substantially affected. 99 H. 522, 57 P.3d 447.

Parents have a substantive liberty interest in the care, custody, and control of their children protected by the due process clause of this section. 99 H. 522, 57 P.3d 447.

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.

Where family court conducted an in camera review of the complainant's child protection services records and produced the relevant portions to defense counsel, defendant's due process rights not violated; and family court's order to seal the remaining portions of the child protection services file for appellate review did not constitute an abuse of discretion. 101 H. 172, 65 P.3d 119.

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, §14 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.

Lost opportunities for concurrent sentencing, parole, and loss of parental rights do not affect a defendant's ability to present an effective defense, and thus do not constitute actual substantial prejudice to a defendant's due process right to a fair trial. 102 H. 183, 74 P.3d 6.

Where there was no evidence that the trial court either reviewed the reasons for the preindictment delay prior to requiring a showing of actual substantial prejudice to the defendant or required a showing of something less than actual substantial prejudice, the trial court did not misapply the correct standard to be used to determine whether charges should be dismissed for preindictment delay. 102 H. 183, 74 P.3d 6.

Vexatious litigant's due process right not impacted in present or future cases where litigant was only restrained from bringing unmeritorious litigation, which could be restricted in any event; as trial court held a hearing to review litigant's objections to prefiling order, order imposed on litigant under §634J-7 satisfied procedural due process because it afforded litigant notice and an opportunity to be heard. 102 H. 289, 75 P.3d 1180.

Section 663-15.5 adequately protects a non-settling joint tortfeasor's right to procedural due process; subsections (b) and (c) afford a non-settling joint tortfeasor notice and an opportunity to be heard regarding the determination whether a settlement has been given in good faith and, consequently, bars cross-claims for contribution against the settling joint tortfeasor. 102 H. 399, 77 P.3d 83.

No prosecutorial misconduct by prosecutor's questions and remarks regarding defendant's failure to "explain away" the DNA evidence as questions and remarks were more analogous to legitimate prosecutorial comment on the state of the evidence and not the improper shifting of the burden of proof onto the defendant. 103 H. 38, 79 P.3d 131.

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.

The lifetime registration component of the Hawaii sex offender registration statute implicates a protected liberty interest under this section and requires that minimum requirements of due process--notice and opportunity to be heard--be afforded to convicted sex offenders; such a proceeding may be instituted by a sex offender in a special proceeding. 105 H. 222, 96 P.3d 242.

Under this section, due process requires that a convicted sex offender under §846E-1 be afforded the right to a judicial hearing at which evidence may be offered to demonstrate that continuance of all or part of the lifetime registration requirements are not necessary in a particular case to fulfill the public need to which the sex offender act responded. 105 H. 222, 96 P.3d 242.

Applying the covered loss deductible under §431:10C-301.5 to plaintiff's recovery of underinsured motorist benefits did not violate plaintiff's right to substantive due process as the legislature's policy determination to enact this section to reduce one of the costs of the motor vehicle insurance system was expressly within the constitutional purview of the legislature. 106 H. 511, 107 P.3d 440.

Assuming that possession of leased premises and rent to be paid into the trust fund are property interests protected under the due process clause, §666-21 does not offend due process as tenants are afforded an opportunity to challenge summary possession and motions for the establishment of a rent trust fund. 107 H. 73, 110 P.3d 397.

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.

Where mother was denied an opportunity to be heard at a meaningful time and in a meaningful manner as to the termination of her parental rights--that is, without a trial concerning her substantive liberty interests in the care, custody, and control of her children--mother was deprived of the custody of her children without a fair hearing. 108 H. 144, 118 P.3d 54.

Deprivation of property solely on basis of substituted service in adverse possession action violates due process, where, with due diligence, actual notice possible. 6 H. App. 241, 718 P.2d 1109.

Does not require agency hearing before tax director issues notices of tax assessment. 6 H. App. 260, 718 P.2d 1122.

In paternity action, due process not violated by exclusion of sexual access information and preclusion of cross-examination of mother regarding her earlier pregnancy. 6 H. App. 629, 736 P.2d 448.

Act of state witness leaving witness stand in presence of security personnel was not so prejudicial as to deny defendant's right to fair trial; jury is presumed to adhere to court's cautionary instruction to draw no inference from event. 8 H. App. 624, 817 P.2d 130.

Violated where court imposed attorney sanctions pursuant to its powers under §603-21.9 without adequate prior notice and reasonable opportunity to be heard. 9 H. App. 249, 833 P.2d 85.

Because the constitutional right of allocution is one afforded "pre-sentence", manifestly, the defendant must be given the opportunity to be heard before the court imposes sentence; defendant had right of allocution before being sentenced for misdemeanor offense of driving with revoked license and for violation charge of illegal turn. 77 H. 241 (App.), 883 P.2d 663.

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.

Defendant's right to an impartial judge was violated where nature and extent of the court's questioning of one of the complainants demonstrated that the court assumed the role of a prosecutor, thus failing to act impartially. When the court assumes the role of a prosecutor, it violates the fundamental due process requirement that the tribunal be impartial, and such an error, by definition, is inherently prejudicial and not harmless. 78 H. 115 (App.), 890 P.2d 702.

Motions court's order denying defendant's pre-trial motion to dismiss for pre-indictment delay affirmed, where, inter alia, motions court was correct in concluding that defendant failed to establish that defendant's claimed inability to recollect events prior to defendant's indictment, even with the aid of others, amounted to substantial prejudice to defendant's right to a fair trial. 79 H. 165 (App.), 880 P.2d 217.

Violated where trial court's exclusion of gun-like cigarette lighter prejudiced defendant by precluding jury from properly evaluating essential defense evidence. 79 H. 385 (App.), 903 P.2d 690.

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 discussion that defendant was subject to mandatory minimum terms of imprisonment pursuant to §706-660.1 was conducted at bench outside of defendant's hearing, defendant was not given reasonable notice of intended application of mandatory minimum term statute. 82 H. 158 (App.), 920 P.2d 372.

Section 291C-112, which prohibits the use of a vehicle "for purposes of human habitation", not unconstitutionally vague. 82 H. 269 (App.), 921 P.2d 1170.

"Reasonable grounds" standard of §709-906(4) not unconstitutionally vague where standard is an objective standard requiring a trial court to independently assess facts and circumstances which responding officers had before them in determining to issue warning citations. 82 H. 381 (App.), 922 P.2d 994.

Section 709-906(4) not overbroad as issuance of warning citation must be based on objective facts and circumstances, other than merely a complainant's claim, which would lead a reasonable police officer to believe recent physical abuse was inflicted on family or household member. 82 H. 381 (App.), 922 P.2d 994.

Violated where claimant failed to serve employer and insurer with motion and summons; circuit court thus did not acquire personal jurisdiction over employer and insurer and judgment and garnishee summons issued pursuant to §386-91 in absence of personal jurisdiction void. 82 H. 405 (App.), 922 P.2d 1018.

Procedural due process right not denied when guardian ad litem not appointed for mother where mother was provided with court-appointed attorney and, pursuant to §587-34(d), court determined mother was capable of comprehending legal significance of issues. 85 H. 119 (App.), 938 P.2d 178.

Application of preponderance of the evidence standard as appropriate judicial basis for issuance of protective order under §586-5.5 does not violate right. 85 H. 197 (App.), 940 P.2d 404.

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 where circuit court's instruction to jury regarding the statutory presumption created by §708-801(4) failed to further instruct jury pursuant to HRE rule 306(a) that the presumption is merely a permissible inference of fact and that in order to apply the presumption, the jury must find that the presumed fact exists beyond a reasonable doubt. 88 H. 216 (App.), 965 P.2d 149.

As no Hawaii statute governing parole requires a parolee's parole to be automatically revoked upon the parolee's conviction and sentence to imprisonment for a crime committed while on parole, and §353-62 appears to vest Hawaii paroling authority with discretion to revoke parole, parolee's right violated when authority summarily revoked parole without giving parolee a final revocation hearing. 88 H. 229 (App.), 965 P.2d 162.

Section 852-1 not void for vagueness as: (1) a person of ordinary intelligence would have a reasonable opportunity to know that it is unlawful to refuse or wilfully fail to move as directed by an officer; (2) person may then choose between the lawful and unlawful conduct; and (3) the statute provides sufficiently explicit standards for those who apply it. 89 H. 27 (App.), 968 P.2d 194.

Under the due process clause of the Hawaii constitution, entrapment by estoppel defense may be raised against the State in criminal cases and clause would be violated if the facts established the defense. 89 H. 27 (App.), 968 P.2d 194.

Section 52D-8 provides officers with a constitutionally protected property interest--the right to legal representation for acting within the scope of their duty; due process thus entitles an officer to a contested case hearing under chapter 91 before the officer can be deprived of this interest. 89 H. 221 (App.), 971 P.2d 310.

Right violated where jury instruction failed to correctly convey proof beyond a reasonable doubt standard to jury; instruction that jury must be "firmly convinced" of defendant's guilt diminished this very high standard by which jury must abide in order to convict. 90 H. 113 (App.), 976 P.2d 427.

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.

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 defendants' right to trial by jury, and error was not harmless beyond a reasonable doubt. 92 H. 675 (App.), 994 P.2d 607.

The conditions for eligibility for parole under the Hawaii sex offender treatment program, which includes admitting to committing a sexual offense, implicate a protected liberty interest under this section; this section of the Hawaii constitution provides an independent basis for the due process right to a sex offender classification hearing before such requirements may be imposed. 93 H. 298 (App.), 1 P.3d 768.

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.

Section 711-1102 not unconstitutionally vague under this section as its language is specific and clear, it is narrowly tailored to a person's failure to disperse pursuant to a law enforcement order to leave the immediate vicinity of disorderly conduct, and citizens of this State should thus have no difficulty in understanding §711-1102. 101 H. 153 (App.), 64 P.3d 282.

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.

Having been previously convicted of driving without motor vehicle insurance, driver was clearly on notice that driving without motor vehicle insurance was a criminal offense; thus, revocation of driver's suspended sentence for commission of the same offense during the period of suspension did not implicate driver's due process rights. 106 H. 391 (App.), 105 P.3d 1197.

Equal protection.

See also notes to U.S. Const. Amend 14.

Ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was constitutional. 124 F.3d 1150.

Applicable only to state action not private action. 698 F. Supp. 1496.

Not violated where city ordinance providing mechanism for transfer of fee simple interest from condominium lessors to lessees did not intentionally discriminate against Native Hawaiians. 802 F. Supp. 326.

Condominium lease-to-fee ordinance did not violate plaintiff's equal protection rights. 832 F. Supp. 1404.

No violation, where plaintiff argued that §490:2-725 discriminated among two classes of warranty claimants, and appeared to argue that UCC arbitrarily discriminated among differing classes of defendants, insofar as it granted partial immunity to those in commercial sales without similarly limiting the liability of others potentially liable for industrial diseases. 854 F. Supp. 702.

Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, plaintiffs not likely to prevail on constitutional claims under Fourteenth and Fifteenth Amendments of U.S. Constitution, article II, §1 and this section of Hawaii constitution, or Voting Rights Act with regards to native Hawaiian vote. 941 F. Supp. 1529.

In view of underlying differences between cars and motorcycles, §286-81(1)(A), requiring motorcycle safety helmets, does not violate the equal protection clause. 55 H. 138, 516 P.2d 709.

Requirement that a woman visitor to an all-male prison wear a brassiere is not invalid. 59 H. 346, 581 P.2d 1164.

The protection of this section is not necessarily limited to that provided by the Fourteenth Amendment. 60 H. 71, 588 P.2d 394.

Constitutionality of statute regulating taking of nehu upheld. 60 H. 662, 594 P.2d 130.

In context of equal protection analysis, right to work does not invoke application of strict scrutiny. 60 H. 662, 594 P.2d 130.

Rational basis exists for compulsory retirement age for state employees. 63 H. 501, 630 P.2d 629.

No rational basis for disparate treatment of classes in establishing statute of limitations. 65 H. 26, 647 P.2d 276.

Certain provisions of motor vehicle insurance law denied equal protection. 65 H. 623, 656 P.2d 736.

Right to privacy does not invoke strict scrutiny; rational basis for county to require financial disclosure by "regulatory employees". 68 H. 140, 706 P.2d 814.

Public policy against racial discrimination. 69 H. 238, 738 P.2d 1205.

Sex is suspect category for purposes of equal protection analysis under this section; §572-1 is presumed to be unconstitutional unless defendant, as agent of State, can show that statute's sex-based classification is justified by compelling state interests, and statute is narrowly drawn to avoid unnecessary abridgments of applicant couples' constitutional rights. 74 H. 530, 852 P.2d 44.

Where county imposed impermissibly discriminatory tax, county must be given certain options to correct the impermissible discrimination. 81 H. 248, 915 P.2d 1349.

Section 704-415 does not violate equal protection; State may place burden on insanity acquittee to prove by preponderance of evidence that acquitee should be released. 84 H. 269, 933 P.2d 606.

Not violated by trial court's redaction of home street addresses and home and work telephone numbers on juror qualification forms where redaction procedure was not administered differently against other similarly situated criminal defendants having jury trials in the first circuit. 85 H. 258, 942 P.2d 522.

Where violation of misdemeanor offense under §712-1248(1)(d) also constituted violation of felony offense under §712-1247(1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights. 86 H. 48, 947 P.2d 360.

Not violated by §431:10C-306 (pre-1997) as applied to persons ineligible for no-fault benefits. 87 H. 297, 955 P.2d 90.

As chapter 671 rationally furthers legitimate state interest of assuring the provision of affordable health care to Hawaii's citizens by requiring participation in medical malpractice dispute resolution such that the high cost of litigation may be avoided, plaintiff not denied equal protection of the laws. 89 H. 188, 970 P.2d 496.

Not violated by county ordinance classifying time share units into "hotel resort" category where classification was reasonably related to ordinance's stated purpose of eliminating disproportionate tax burdens within that category and classification applied to properties whose actual use was transient or short-term, regardless of whether the units were used personally. 90 H. 334, 978 P.2d 772.

Clause not violated by §709-906 as State has a legitimate interest in protecting the health, safety, and welfare of its citizens, enactment of §709-906 to address family violence within the community is "legitimate" in protecting Hawaii's citizens, and as including family and household members within scope of §709-906 may reduce or deter family violence by imposing upon violators greater criminal punishment than criminal assault, it is rationally related to the State's interest in preventing incidents of family violence. 93 H. 63, 996 P.2d 268.

Search warrant did not violate appellant's rights under the U.S. and Hawaii Constitutions although it was not issued against any other bettors; to raise the selective prosecution defense, appellant needed to present sufficient evidence as to why appellant was prosecuted while the other seven bettors were not; reason provided by appellant that detective arbitrarily "classified" appellant as part of a conspiracy did not explain why only appellant was subject to the search warrant nor did it distinguish appellant from other bettors. 104 H. 323, 89 P.3d 823.

As the imposition of a rent trust fund--requiring tenants to pay rent in exchange for possession for the duration of the dispute--appears rationally related to achieving the purpose of providing landlords with an expeditious alternative to eviction proceedings and tenants with an opportunity to maintain possession so long as rent is paid when properly due, §666-21 does not violate this clause. 107 H. 73, 110 P.3d 397.

Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed. 109 H. 240, 125 P.3d 461.

No procedural due process violation where prisoner was placed and retained in administrative segregation. 7 H. App. 502, 753 P.2d 816.

Not violated by §291C-112, which rationally furthers legitimate state interest in protecting health and welfare of public at large by prohibiting use of vehicles parked on public property as places of habitation during certain hours. 82 H. 269 (App.), 921 P.2d 1170.

Not violated by use of preponderance of evidence standard of proof for §586-5.5 as family and household members not suspect class and rational basis underlying this standard adopted by legislature under chapter 571 for chapter 586 was to facilitate and expedite judicial issuance of protective orders. 85 H. 197 (App.), 940 P.2d 404.

As a suspect classification or fundamental right was not involved, and based upon dissimilar statutory treatment generally accorded to possession of marijuana as opposed to alcohol, where there was a rational basis for dissimilar punishment, §710-1022 did not violate defendant's right because it imposed a more severe penalty for a prisoner's marijuana possession than for alcohol possession under §710-1023. 92 H. 217 (App.), 990 P.2d 115.

1998 Amended Child Support Guidelines classification challenged by father was constitutional as it reasonably calculated the child support payable for child without regard to child support owed by the non-custodial parent to other children, whether by a previous court order or a non-adjudicated legal obligation, and reasonably imposed upon the non-custodial parent the burden of proving that exceptional circumstances warrant deviation from the calculated amount. 104 H. 449 (App.), 91 P.3d 1092.

Hawaii Legal Reporter Citations:

Due process.

Mooring permit. 80-1 HLR 800249.

Vagueness. 81-1 HLR 810147.

Equal protection.

Beverage containers. 78-2 HLR 78-1478.

1.6
Right to privacy

The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.  [Add Const Con 1978 and election Nov 7, 1978]

Law Journals and Reviews:

State v. Kam: The Constitutional Status of Obscenity in Hawaii. 11 UH L. Rev. 253.

State v. Rothman: Expanding the Individual's Right to Privacy Under the Hawaii Constitution. 13 UH L. Rev. 619.

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai‘i Supreme Court. 14 UH L. Rev. 189.

The Lum Court and the First Amendment. 14 UH L. Rev. 395.

For Better or for Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same Sex Marriage in Hawaii. 16 UH L. Rev. 447.

Vernonia Sch. Dist. v. Acton: Now Children Must Shed Their Constitutional Rights at the Schoolhouse Gate. 18 UH L. Rev. 869.

Should The Right To Die Be Protected? Physician Assisted Suicide And Its Potential Effect On Hawai‘i. 19 UH L. Rev. 783.

When Children Prey on Children: A Look at Hawai‘i's Version of Megan's Law and its Application to Juvenile Sex Offenders. 20 UH L. Rev. 477.

Privacy Outside of the Penumbra: A Discussion of Hawai‘i's Right to Privacy After State v. Mallan. 21 UH L. Rev. 273.

Emergency Contraception in Religious Hospitals: The Struggle Between Religious Freedom and Personal Autonomy. 27 UH L. Rev. 65.

Your Body, Your Choice: How Mandatory Advance Health-Care Directives Are Necessary to Protect Your Fundamental Right to Accept or Refuse Medical Treatment. 27 UH L. Rev. 201.

Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone: The Need For Privacy in the Public Sphere. 27 UH L. Rev. 377.

Case Notes:

Parents' right to give their child any name they wish. 466 F. Supp. 714.

Right of privacy does not encompass sex for a fee in a private apartment. 66 H. 616, 671 P.2d 1351.

Public officials' expectation of financial privacy qualified by constitution's code of ethics. 68 H. 140, 706 P.2d 814.

A person has a right to read or view pornographic material in the privacy of one's own home, along with this right is the right to purchase such materials for personal use; section affords much greater privacy right than federal right to privacy; State must show a compelling state interest to infringe upon the right of privacy. 69 H. 483, 748 P.2d 372.

A person using a private telephone line has a reasonable expectation of privacy; pen register warrant required the signature of a circuit court judge. 70 H. 546, 779 P.2d 1.

Not violated by police drug testing program. 71 H. 568, 799 P.2d 953.

There is no fundamental right to marriage for same-sex couples under this section. 74 H. 530, 852 P.2d 44.

Information that must be disclosed pursuant to §92F-14(b)(4)(B) regarding a public employee's employment-related misconduct and resulting discipline not "highly personal and intimate information" and thus not within scope of Hawaii's constitutional right to privacy. 83 H. 378, 927 P.2d 386.

Purported right to possess and use marijuana not a fundamental right; where defendant failed to prove §712-1249 lacked any rational basis, section constitutional. 86 H. 440, 950 P.2d 178.

Right to privacy in this section does not encompass right to possess and use marijuana for recreational purposes. 86 H. 440, 950 P.2d 178.

The right to privacy under this section does not encompass the right to view adult material in an enclosed booth within a commercial establishment. 107 H. 314, 113 P.3d 190.

Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed. 109 H. 240, 125 P.3d 461.

Not violated by firefighters drug testing program. 8 H. App. 571, 816 P.2d 306.

Section 711-1102 does not violate the right to privacy under this section as it is not a "sweeping infringement on the freedom of movement and privacy"; to prevent the substantial harm or serious inconvenience, annoyance or alarm to the public, it is reasonably necessary for law enforcement to order those participating in the disorderly conduct and those in the immediate vicinity to disperse until the disorderly conduct comes to an end. 101 H. 153 (App.), 64 P.3d 282.

1.7
Searches, seizures and invasion of privacy

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.  [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Law Journals and Reviews:

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

State v. Sherlock: Police Use of a Controlled Purchase of Contraband to Corroborate an Informant's Tip. 12 UH L. Rev. 237.

State v. Rothman: Expanding the Individual's Right to Privacy Under the Hawaii Constitution. 13 UH L. Rev. 619.

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai‘i Supreme Court. 14 UH L. Rev. 189.

State v. Quino: The Hawai‘i Supreme Court Pulls Out All the "Stops". 15 UH L. Rev. 289.

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

Wyoming v. Houghton: The Bright Line Search Includes Passengers' Belongings. 22 UH L. Rev. 645.

Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone: The Need For Privacy in the Public Sphere. 27 UH L. Rev. 377.

Case Notes:

See also notes to U.S. Const. Amends. 1, 4.

Section incorporates the 4th Amendment of the federal constitution and is intended to give the State the benefit of federal decisions construing the language. 45 H. 295, 309, 367 P.2d 499.

State supreme court may extend greater protection than is extended by federal decisions, if deemed appropriate. 50 H. 138, 433 P.2d 593.

Investigative encounter "consensual" only if, prior to start of questioning, person informed of right to decline participation and that person could leave at any time, and person thereafter voluntarily participates. 75 H. 558, 867 P.2d 903.

No violation of defendant's due process right to a fair trial by prosecution's refusal to reveal exact dates of confidential informant's observations as exact dates were not necessary in order for defendant to challenge district court's findings of probable cause. 88 H. 396, 967 P.2d 228.

Investigative stop lawful where officer articulated specific facts, including defendant's profuse perspiring and rapidly approaching officer with hands moving in pocket, to establish officer's objectively reasonable belief that "criminal activity was afoot"; subsequent pat down search by officer which was limited to defendant's outer clothing was lawful where it was objectively reasonable for officer to believe that defendant was armed with a knife and presently dangerous. 93 H. 502 (App.), 6 P.3d 374.

Privacy.

Arrest of defendants sunbathing nude on public beach did not violate their right of privacy. 52 H. 226, 475 P.2d 684.

Where government secret agent is invited to private home to purchase marijuana and later goes there and makes purchase, agent's activities do not constitute unreasonable invasion of privacy. 54 H. 513, 510 P.2d 1066.

This provision does not elevate right of privacy to equivalent of First Amendment right. 56 H. 271, 535 P.2d 1394.

Helicopter observation of open marijuana patch was not "an invasion of privacy". 58 H. 412, 570 P.2d 1323.

Words "invasion of privacy" were designed to protect against extensive governmental use of electronic surveillance techniques and undue governmental intrusion into areas of a person's life necessary to insure individuality and human dignity. 58 H. 412, 570 P.2d 1323.

Use by police of ruse to effect voluntary opening of door and subsequent entry without use of force for purpose of executing lawful arrest warrant reasonable under this section. 83 H. 13, 924 P.2d 181.

Regardless of the number of times that the police tested defendant's blood sample for its DNA, no violation of defendant's constitutional right to privacy occurred because the analyses did not exceed the objective for which the original warrant was sought--DNA testing for the purpose of identification. 103 H. 38, 79 P.3d 131.

Under this section, a guest of a home dweller is entitled to a right of privacy while in his or her host's home; defendant thus had a reasonable expectation of privacy in defendant's host's garage washroom; police were not justified, under either an "open view" or a "plain view" exception to the warrant requirement, in searching the area behind the washing machine. 104 H. 109, 85 P.3d 634.

Even assuming the crime stoppers' anonymous tip was not "tainted" as a result of it being relayed to school officials via a police officer, the anonymous tip failed to provide even reasonable suspicion, much less probable cause, to justify the search of minor; the anonymous tip bore no indicia of reliability--the identity or status of the informant, the time the tip came in, the basis, if any, for the informant's knowledge, and the reliability of its assertion of illegality. 104 H. 403, 91 P.3d 485.

Where police had no specific or articulable basis to believe that prior arrestee was in defendant's vehicle, police lacked reasonable suspicion to stop defendant's vehicle. 106 H. 177, 102 P.3d 1075.

Search and seizure.

Plaintiffs challenging city and county of Honolulu's practice of charging nonresidents a $3.00 fee to enter bay designated a marine life conservation district and nature preserve were not "seized" in violation of the Fourth Amendment to the U.S. Constitution or this section; stopping to pay $3.00 entrance fee at turnstile did not constitute an impermissible seizure. 215 F. Supp. 2d 1098.

Use of flashlight by police officer in scanning interior of automobile lawfully stopped for traffic offense is not per se unreasonable search and seizure. 50 H. 461, 443 P.2d 149.

Scope of pre-incarceration search. 55 H. 361, 520 P.2d 51.

Scope of search incident to lawful arrest; can be no broader than necessary; in construing Hawaii constitution, need not follow U.S. supreme court (U.S. v. Robinson, 94 S CT 467 and Gustafson v. Florida, 94 S CT 488). 55 H. 361, 520 P.2d 51.

Warrantless search and seizure of property in area open to public not unreasonable; in area not open to public unreasonable absent exigent circumstances. 60 H. 197, 587 P.2d 1224.

Elements of legitimate expectation of privacy. 61 H. 117, 596 P.2d 773.

Pre-incarceration search is justified. 61 H. 291, 602 P.2d 933.

Stop and frisk, justified. 63 H. 553, 632 P.2d 1064.

Warrantless search. Exigent circumstances lacking. 63 H. 553, 632 P.2d 1064.

Procedural requirements for seizure of materials in obscenity prosecutions. 63 H. 596, 634 P.2d 80.

Standard for suppression of evidence where seizure violated freedom of speech or expression. 63 H. 596, 634 P.2d 80.

City policy requiring inspection prior to entering concert, of all containers or clothing capable of concealing bottles or cans held unreasonable. 64 H. 17, 635 P.2d 946.

Illegal arrest or seizure of evidence, without more, does not bar prosecution. Exclusion of tainted evidence is appropriate remedy; purchase of allegedly obscene material from "willing sellers" by private citizen under police direction prior to arrest was actually "preconceived seizure" designed to evade warrant procedures; warrantless arrest for promoting pornography and seizure of material cannot be premised on ad hoc determination by police officer that material was obscene. 64 H. 109, 637 P.2d 1095.

Evidence inadequate to support probable cause for issuance of warrant. 64 H. 399, 641 P.2d 1341.

No reasonable expectation of privacy in conversation recorded by participant. 64 H. 659, 649 P.2d 346; 67 H. 197, 682 P.2d 79; 67 H. 307, 686 P.2d 816.

No reasonable expectation of privacy shown. 65 H. 22, 649 P.2d 363; 65 H. 159, 649 P.2d 737.

In order to conduct the more intrusive body searches in nonemergency, noncontact visit situations, prison officials must have reasonable basis to conclude that contraband is being concealed by inmates on their person. 66 H. 21, 656 P.2d 1330.

Based on record, defendant did not abandon bag and therefore warrantless search was unconstitutional. 66 H. 543, 669 P.2d 152.

Any co-inhabitant of commonly held property has right to consent to search of property; no expectation of privacy in property abandoned; abandonment primarily a question of intent. 67 H. 644, 701 P.2d 171.

Reasonable expectation of privacy in trash bags. 67 H. 658, 701 P.2d 1274.

Warrantless seizure of album for ten days to install beeper was unreasonable. 68 H. 213, 708 P.2d 820.

Use of binoculars to observe activities in open view in automobile not unreasonable; warrantless search of handbag in automobile was unreasonable. 68 H. 221, 708 P.2d 825.

Under the facts, warrantless search held not justified by "exigent circumstances" and not "incident to arrest". 68 H. 253, 710 P.2d 1197.

Police must have reasonable basis to believe crime committed to order driver out of car after traffic stop. 68 H. 286, 711 P.2d 1291.

Reasonable expectation of privacy in closed public toilet stall; no probable cause to search stall. 68 H. 404, 716 P.2d 493.

Warrantless search of defendant beyond protective search for weapons was unreasonable, where there was no evidence to indicate defendant had contraband or instrumentalities of the crime. 68 H. 509, 720 P.2d 1012.

Warrantless seizure for thirty minutes was not unreasonable or avoidable where police were informed of criminal activity ten minutes prior to the seizure. 69 H. 132, 736 P.2d 438.

Airport searches, discussed. 69 H. 589, 752 P.2d 102.

Search warrant was valid although informant had no history of reliability because other corroborated information indicated informant was reliable. 70 H. 271, 768 P.2d 1290.

Warrant was considered a general warrant. 70 H. 546, 779 P.2d 1.

Not violated by police drug testing program. 71 H. 568, 799 P.2d 953.

Warrant to search multiple occupancy dwelling was reasonable. 71 H. 638, 802 P.2d 478.

Affidavit which contained misstated and omitted information was insufficient to show probable cause to justify a search warrant. 72 H. 141, 808 P.2d 848.

Warrantless search of contents of wallet after defendant surrendered it for inventory was unreasonable. 72 H. 290, 814 P.2d 914.

Constitutional right was not voluntarily waived by defendant's consent to search car 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.

Although no force was used, officers' show of authority and questioning constituted seizure under Hawaii Constitution. 74 H. 161, 840 P.2d 358.

District court's findings of fact, conclusions of law, and suppression orders affirmed, where, inter alia, defendants had actual, subjective expectations of privacy that society would recognize as objectively reasonable that they would not be objects of covert video surveillance in employee break room, and recorded observations of activities in the break room were not obtained by third party consent. 75 H. 124, 856 P.2d 1265.

Seizure occurs when police approach a person for the express or implied purpose of investigating that person for possible criminal violations and begins to ask for information. 75 H. 558, 867 P.2d 903.

Children in school have legitimate expectations of privacy that are protected by this section and the Fourth Amendment to the U.S. Constitution. 77 H. 435, 887 P.2d 645.

High school principal's search of student's purse was lawfully conducted. 77 H. 435, 887 P.2d 645.

Investigative stop can be justified based on objectively reasonable suspicion of any offense, provided that the offense for which reasonable suspicion exists is related to offense articulated by officer involved. 78 H. 86, 890 P.2d 673.

Where handgun on floor of defendant's truck under corner of driver's seat was observed in plain view, presence of exigent circumstances was not required to justify a warrantless seizure. 78 H. 308, 893 P.2d 159.

Defendants were induced to make inculpatory statements and to consent to search of their hotel room in violation of article I, §§7 and [10] of Hawai‘i constitution. 78 H. 433, 896 P.2d 889.

In order for a consent to search to be valid under this section, the individual consenting must actually possess the authority to do so; detective's search of defendants' house violated this section. 78 H. 433, 896 P.2d 889.

Clear plastic packets not "closed" containers as contents were within plain view of officer conducting search under warrant; defendant thus could not claim any reasonable expectation of privacy in the packets' contents. 80 H. 382, 910 P.2d 695.

Obtaining warrant as precondition to testing suspected cocaine in clear plastic bags unnecessary where defendant could not have reasonable expectation of privacy in clear plastic bags. 80 H. 382, 910 P.2d 695.

Valid search incident to lawful arrest where there was probable cause to make an arrest prior to and independent of search of defendant's pants, search was limited to finding narcotics bindles, and arrest was made immediately after search. 80 H. 419, 910 P.2d 732.

Determination of probable cause for issuance of search warrant warrants de novo review on appeal. 81 H. 113, 913 P.2d 39.

Upon de novo review, based on facts set forth in officer's affidavit, probable cause existed to issue search warrant. 81 H. 113, 913 P.2d 39.

Defendant lacked standing to challenge seizure of search warrant evidence where evidence seizure did not violate defendant's personal rights; defendant was not owner of any of items seized and did not allege any reasonable expectation of privacy in items. 82 H. 474, 923 P.2d 891.

No "seizure" where private individual, acting on own initiative, secured videotape and voluntarily transferred possession to police. 82 H. 474, 923 P.2d 891.

Drug evidence admissible and wrongly suppressed where police intrusion into hotel room pursuant to valid arrest warrant was justified and evidence seizure was permissible under plain view doctrine. 83 H. 13, 924 P.2d 181.

"Totality of the circumstances test" correct test to determine whether private individual's search and seizure of evidentiary items was as a government agent, and subjective motivation of individual irrelevant to this determination. 83 H. 124, 925 P.2d 294.

Circuit court erred in granting defendants' motion to suppress evidence where none of the three rationales for exclusionary rule--judicial integrity, individual privacy, and deterrence--supported suppression of evidence in case. 83 H. 187, 925 P.2d 357.

Provisions of chapter 803, part IV and this section not relevant to question of legality of electronic eavesdropping activities conducted in California. 83 H. 187, 925 P.2d 357.

Warrantless seizure justified where witness' identification of defendant as person who terrorized witness with gun gave officers probable cause to believe defendant committed a crime and officer's observation of defendant sleeping with gun in immediate reach presented sufficient exigent circumstances for officer to board boat and seize gun. 83 H. 229, 925 P.2d 797.

Based on totality of circumstances, officer placed defendant in inherently coercive position by asking "pretexual" questions specifically designed to elicit responses that would either vindicate or implicate defendant; consent to "pat down" was thus not "voluntary and uncoerced". 83 H. 250, 925 P.2d 818.

Officer lacked specific and articulable facts sufficient to warrant a person of reasonable caution in believing that defendant was engaged in criminal activity; officer was thus unjustified in initiating investigative "encounter" at airport with defendant. 83 H. 250, 925 P.2d 818.

Where officer's questions were designed to investigate defendant for drug possession and defendant was expressly made aware of that from the outset, defendant had been effectively seized by the time officer asked "to take a look" at defendant's airline ticket and driver's license. 83 H. 250, 925 P.2d 818.

Where nothing in objective facts available to police at time they obtained search warrant for house suggested defendant's bedroom was separate residential unit completely secured against access by other dwelling occupants, search warrant not overbroad and search of bedroom reasonable. 84 H. 462, 935 P.2d 1007.

Where no exigent circumstances existed, forced entry by police two seconds after knock and announcement was insufficient to give occupants reasonable opportunity to respond. 85 H. 282, 943 P.2d 908.

Defendant not victim of unlawful seizure where, under totality of circumstances, reasonable person would have felt free to terminate encounter by refusing to accompany police and return into home. 86 H. 195, 948 P.2d 1036.

Where defendant voluntarily offered to accompany police to station and walked to and entered van voluntarily, even if there was a "seizure", seizure was with defendant's consent. 86 H. 195, 948 P.2d 1036.

Police may not prolong the detention of individuals subjected to brief, temporary investigative stops, once such stops have failed to substantiate the reasonable suspicion that initially justified them, solely for the purpose of performing a check for outstanding warrants. 91 H. 80, 979 P.2d 1106.

Although lawfully "seized" within the meaning of this section, defendant was not "in custody" at the time defendant responded to officer's question regarding defendant's age; thus officer was not required to give Miranda warnings prior to asking the question and trial court improperly suppressed defendant's answer. 94 H. 207, 10 P.3d 728.

When an officer lawfully "seizes" a person in order to conduct an investigative stop, the officer is not required to inform that person of the person's Miranda rights before posing questions that are reasonably designed to confirm or dispel--as briefly as possible and without any coercive connotation by either word or conduct--the officer's reasonable suspicion that criminal activity is afoot. 94 H. 207, 10 P.3d 728.

When an airline passenger consents to a search of his or her effects at an airport security checkpoint, the scope of the search reasonably extends to those receptacles, the contents of which cannot be identified, contained in luggage. 97 H. 71, 34 P.3d 1.

A mandatory blood test, pursuant to §286-163, absent an arrest, violates neither the Fourth Amendment nor this section, so long as the police have probable cause to believe that the driver has committed one of the enumerated offenses and that the driver's blood contains evidence of intoxication or drug influence, exigent circumstances excuse a warrant, and the test is performed in a reasonable manner. 98 H. 221, 47 P.3d 336.

An officer is not prohibited from requesting a warrant check incident to the issuance of a citation for a traffic violation when the check does not prolong the length of time needed to issue a citation. 98 H. 337, 48 P.3d 584.

Where detective's affidavit in support of search warrant lacked probable cause and warrant was thus unlawfully obtained, firearms that detective found in tool shed and defendant's subsequent inculpatory statement, given in response to detective's questions regarding the firearms, were inadmissible at trial because they constituted evidence derived from the exploitation of an unlawful search warrant, and therefore, were tainted by that prior illegality. 98 H. 387, 49 P.3d 353.

Assuming arguendo that, because drug detection dog jumped into the truck's passenger compartment, this canine screening constituted a "search" within the meaning of either the Fourth Amendment or this article, defendant did not have a reasonable expectation of privacy in the truck (or specifically in the airspace within the cab of the truck); thus, neither the dog's nor police handler's conduct violated defendant's rights. 98 H. 426, 49 P.3d 1227.

In detaining defendant for the purpose of determining if defendant was impaired and if defendant would consent to a search of defendant's vehicle, officer did not exceed the scope of a temporary investigative stop premised upon circumstances that gave rise to a reasonable suspicion that defendant was driving while impaired or that defendant's vehicle might contain illicit substances. 99 H. 370, 56 P.3d 138.

Red and glassy eyes, a criminal record, and imperfect driving, standing alone, were insufficient to establish probable cause to arrest a person for driving under the influence of drugs; as officer did not have probable cause to arrest defendant and did not subject defendant to sustained and coercive questioning, Miranda warnings were not warranted when defendant was questioned about defendant's alcohol consumption. 99 H. 370, 56 P.3d 138.

Based on the totality of the circumstances, pool hall owner's actions in searching and detaining defendant were as a private citizen, not as a government agent; thus, owner's search and/or seizure of defendant was not constrained by this section nor the Fourth Amendment. 100 H. 195, 58 P.3d 1242.

Section 803-37 does not apply to the interior office door of a store; however, as an objectively reasonable expectation of privacy exists at the interior office door of a store, police are required to provide reasonable notification of their presence and authority before making a forced entry; police satisfied this requirement by knocking three times, announcing "police department, search warrant", and waiting fifteen seconds before forcibly entering the locked interior office door of the store. 100 H. 210, 58 P.3d 1257.

Search warrant was not supported by probable cause where credibility and reliability of anonymous tip concerning marijuana growing was not established; thus, trial court erred in denying defendant's motion to suppress items seized in the execution of the warrant. 102 H. 13, 72 P.3d 485.

Use of thermal imager device to detect heat emanating from defendant's apartment constituted an unreasonable warrantless search; thus, information gained should have been excluded in the establishment of probable cause. 102 H. 13, 72 P.3d 485.

Officer's additional observations, considered in concert with the reasonable inferences arising from defendant's screeching of tires, warranted an objectively reasonable suspicion that defendant had, at a minimum, committed the offense of reckless driving of a vehicle, in violation of §291-2; thus, officer's investigative stop was within the parameters of permissible police conduct. 102 H. 228, 74 P.3d 980.

Police may act on an anonymous tip of reckless driving, but only under very narrow circumstances; based on the totality of the circumstances, including the reliability of the tip and the imminence of the harm, an anonymous tip was sufficiently reliable to justify an investigatory stop. 103 H. 451, 83 P.3d 714.

Under this section, a guest of a home dweller is entitled to a right of privacy while in his or her host's home; defendant thus had a reasonable expectation of privacy in defendant's host's garage washroom; police were not justified, under either an "open view" or a "plain view" exception to the warrant requirement, in searching the area behind the washing machine. 104 H. 109, 85 P.3d 634.

Warrant to search premises does not authorize search of identified possessions of visitors present during execution of warrant; defendant had reasonable expectation of privacy in plastic beach bag on floor near defendant. 5 H. App. 29, 677 P.2d 471.

Investigatory stop justified by circumstances. 5 H. App. 127, 681 P.2d 573.

Reasonable for police officers to order defendant to exit automobile based upon totality of circumstances. 7 H. App. 28, 742 P.2d 388.

Suspicionless drug testing of firefighters by urinalysis in conjunction with annual physical examination is not an unreasonable search. 8 H. App. 571, 816 P.2d 306.

Reasonable for police officer to assume that personal property of non-resident of premises being searched under search warrant was property of premises where there was no notice of ownership. 8 H. App. 610, 822 P.2d 23.

Warrantless seizure of defendant at sobriety roadblock was unreasonable where State failed to prove that officer in charge had authority to move roadblock's location due to traffic congestion. 9 H. App. 98, 825 P.2d 1068.

Section 803-37 violates Hawai‘i constitution to the extent that it permits the police to break into the place to be searched if "bars" to their entrance are not immediately opened. 77 H. 461 (App.), 887 P.2d 671.

In situations where defendant was the focus of a narcotics investigation, was seized illegally, had defendant's bag detained for a canine narcotics screening, and had defendant's subsequent movements secured by the police pending completion of the screening, a reasonable person would believe he or she was not free to leave. 78 H. 475 (App.), 896 P.2d 931.

Insofar as indictment related to resisting arrest charge, indictment could not be treated as a "product or fruit" of any illegal seizure or arrest of defendant. 78 H. 475 (App.), 896 P.2d 931.

Seizure violated reasonable seizure requirement in this section because defendant was initially seized without probable cause, without reasonable suspicion, and without defendant's consent. 78 H. 475 (App.), 896 P.2d 931.

Officer's order for defendant to exit vehicle was unlawful; thus, subsequent plain view of, search for, and seizure of incriminating evidence was tainted and should have been suppressed. 80 H. 75 (App.), 905 P.2d 50.

Probable cause existed for issuance of warrant based on officer's affidavit that relied on police investigation as well as on informant's information. 81 H. 29 (App.), 911 P.2d 1101.

Where warrant only authorized search of specific room of business and another subsequently discovered room of business separated by a hallway and other numbered and unnumbered rooms was also searched, other room was not within scope of warrant and constituted illegal search. 82 H. 162 (App.), 920 P.2d 376.

Evidence found in defendant's living room illegally seized where no exigent circumstances or search warrant to enter living room and person consenting to police entering living room did not have "actual authority" to consent. 82 H. 394 (App.), 922 P.2d 1007.

Hawaii constitution does not permit validation of searches pursuant to search warrants that are facially expired when the searches are made. 83 H. 87 (App.), 924 P.2d 581.

Where defendant was seated in driver's seat of parked car, key was in ignition and engine was not running, defendant was "seized" when officer asked defendant for driver's license, vehicle registration card, and vehicle reconstruction permit. 87 H. 487 (App.), 960 P.2d 157.

Where Hawaii county did not require posting of reconstructed vehicle permit decal on vehicle and no evidence that defendant actually operated vehicle, officer's suspicion that defendant operated a reconstructed vehicle without a valid permit was not reasonable; thus, evidence of DUI and no reconstruction permit was illegally obtained through a warrantless seizure. 87 H. 487 (App.), 960 P.2d 157.

Where State established by clear and convincing evidence that contents of defendant's pockets would have been revealed in an inventory search of defendant upon arrival and booking at police station, drug pipe and packet properly admitted under the inevitable discovery exception to the exclusionary rule. 91 H. 111 (App.), 979 P.2d 1137.

Right not violated where defendant did not have a reasonable expectation of privacy on busy public street, defendant took no precautions to insure privacy by screening defendant's presence or defendant's drug dealing activity from public view, and no objectively reasonable expectation of privacy for persons, objects, or activities which were visible to the public and captured by non-intrusive video camera. 92 H. 454 (App.), 992 P.2d 723.

Seizure of motorist justified where report of the hazardous driving matched both the area the motorist was driving in and the make, model, color, and license number of the vehicle being allegedly hazardously driven. 93 H. 337 (App.), 3 P.3d 503.

Although initial seizure was justified, once officers determined that no weapon was involved and no one wanted to make a complaint, and thus dispelled the reasonable suspicion that justified the initial seizure, defendant should have been released; by further detaining defendant and demanding identification, officer subjected defendant to an illegal seizure. 93 H. 502 (App.), 6 P.3d 374.

Where officer made plain to defendant that defendant was the focus of a criminal investigation, demanded to see defendant's hands, and a reasonable person would not have felt free to leave, defendant was seized for purposes of this section; seizure continued throughout ensuing physical seizure, takedown and handcuffing, and continued after the removal of the handcuffs. 93 H. 502 (App.), 6 P.3d 374.

Conduct of officer who had been directing traffic, in walking behind motorist's vehicle, from the passenger's side to the driver's side, after motorist had been stopped for three to five seconds and had failed to follow officer's hand instructions, was not an investigative stop, as reasonable person would not have believed person was not free to leave. 95 H. 270 (App.), 21 P.3d 475.

Defendant had a constitutionally protected expectation of privacy not only in the general premises of the house, but also in the specific area that was defendant's bedroom; defendant's lack of property interest in defendant's parents' house was not a bar to a claim that defendant had a protected privacy interest in that house. 96 H. 472 (App.), 32 P.3d 116.

Exigent circumstances did not exist to justify warrantless police entry into and search of house, where, by securing the house believed to hold their quarry, the police had eliminated the perceived threat posed by a free-roaming, allegedly armed suspect, and by closing off the street, the police were in control of the situation, thus having sufficient time to consider their options, plan and obtain a search warrant. 96 H. 472 (App.), 32 P.3d 116.

Warrantless search of defendant's bedroom in defendant's parents' house unreasonable where mother did not have actual authority to consent to search of son's bedroom; son had, by implicit agreement and in practice, exclusive possession of bedroom, and there was no indication that son gave mother access to room or permission to allow others access. 96 H. 472 (App.), 32 P.3d 116.

Where defendant exhibited an actual, subjective expectation of privacy in defendant's bedroom by keeping door locked at all times, and no other person had the key or access to the room, and as an adult child living with parents is not uncommon in this State, defendant's expectation was one that society was prepared to recognize as objectively "reasonable"; thus, defendant's privacy interests in common areas of parents' house and in defendant's bedroom were constitutionally protected. 96 H. 472 (App.), 32 P.3d 116.

Where neither consent nor exigent circumstances justified warrantless police entry into and search of defendant's bedroom, based on the "adequate and independent state grounds" of this section, police search was unlawful and sawed-off shotgun seized as a result should have been suppressed. 96 H. 472 (App.), 32 P.3d 116.

The federal and state regulatory schemes, which establish security and screening procedures at airports governed by both the Federal Aviation Administration and the state department of transportation, made private security employee's search of passenger's toolbox a governmental search for purposes of the Fourth Amendment and this section. 97 H. 77 (App.), 34 P.3d 7.

Warrantless search of passenger's toolbox at airport by private security company employee was reasonable under the Fourth Amendment and this section. 97 H. 77 (App.), 34 P.3d 7.

Where totality of circumstances clearly showed that store asset protection agent conducted a purely private search of defendant with no governmental involvement, trial court did not err in denying defendant's motion to suppress evidence. 97 H. 247 (App.), 35 P.3d 764.

Right not violated where police officer's search of defendant's fanny pack found by hotel guest and already inventoried by hotel security fell under the lost property inventory exception to the warrant requirement. 101 H. 112 (App.), 63 P.3d 420.

Warrantless seizure of plaintiff's vehicle not unconstitutional where seizure was from a public place and officers had probable cause to believe it was forfeitable contraband. 101 H. 422 (App.), 70 P.3d 648.

Applying the totality of the circumstances test, trial court correctly determined that adult video store clerk was not acting as a "government agent"; clerk was not actively recruited, directed, or paid by the police, and clerk's actions were for a private purpose--to make sure defendant was complying with video store's no-smoking policy and not doing anything that would harm the store. 103 H. 11 (App.), 78 P.3d 1159.

Warrantless seizure of defendant's glass pipe and its contents justified where police had probable cause to arrest defendant after viewing defendant smoking glass pipe in video booth, and exigent circumstances existed as defendant was lawfully observed ingesting an illegal drug and any delay would allow more, if not all, of the drugs to be consumed, and as defendant rented video booth for only half an hour, defendant would likely have finished defendant's "business" long before police could have obtained a warrant. 103 H. 11 (App.), 78 P.3d 1159.

Where defendant took no steps to cover up "glory hole" in adult video preview booth, defendant could not have reasonably expected that defendant's conduct would not be viewed through the glory hole; thus, defendant could not have had a subjective expectation of privacy in the video preview booth that society would recognize as objectively reasonable. 103 H. 11 (App.), 78 P.3d 1159.

Defendant was not subject to a de facto arrest not supported by probable cause where officers' use or display of force was reasonably necessary to protect their personal safety, was in response to defendant's erratic and hostile behavior, and defendant's conduct made it reasonable for the officers to insist that defendant submit to a pat-down search for weapons. 107 H. 144 (App.), 111 P.3d 39.

When police officers encounter someone while lawfully at a residence to execute an arrest warrant, the officers may detain that person and perform a pat-down search for weapons if the officers have a reasonable and articulable basis to suspect that the person may possess a weapon and pose a danger; the officers may compel such person to submit to a pat-down search for weapons even if the officers have no reasonable suspicion that the person is involved in criminal activity. 107 H. 144 (App.), 111 P.3d 39.

Authorization in search warrant to search any personal, rental, or borrowed vehicle that defendant was operating or occupying was not unconstitutionally overbroad, and was sufficiently particularized where authorization was based on probable cause that defendant would be in possession of ice, and would be transporting it in any number of different vehicles in which defendant was either the operator or an occupant. 108 H. 361 (App.), 120 P.3d 260.

Cited: 56 H. 366, 537 P.2d 8.

Mentioned: 53 H. 327, 493 P.2d 306.

Hawaii Legal Reporter Citations:

Electronic surveillance. 81-2 HLR 810715.

Photographs and videotapes. 81-2 HLR 810715.

1.8
Rights of citizens

No citizen shall be disfranchised, or deprived of any of the rights or privileges secured to other citizens, unless by the law of the land.  [Ren Const Con 1978 and election Nov 7, 1978]

Case Notes:

Not violated by disqualification of recalled officials from running for vacancy created by recall. 68 H. 263, 711 P.2d 723.

1.9
Enlistment; segregation

No citizen shall be denied enlistment in any military organization of this State nor be segregated therein because of race, religious principles or ancestry.  [Ren and am Const Con 1978 and election Nov 7, 1978]

1.10
Indictment; preliminary hearing; information; double jeopardy; self-incrimination

No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary hearing held as provided by law or upon information in writing signed by a legal prosecuting officer under conditions and in accordance with procedures that the legislature may provide, except in cases arising in the armed forces when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy; nor shall any person be compelled in any criminal case to be a witness against oneself.  [Ren and am Const Con 1978 and election Nov 7, 1978; am HB 150 (1981) and election Nov 2, 1982; am SB 2851 (2004) and election Nov 2, 2004]

Attorney General Opinions:

Cited in holding that a constitutional amendment is necessary to eliminate the function and scope of the grand jury. Att. Gen. Op. 68-10.

Law Journals and Reviews:

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.

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

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

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

State v. Rogan: Racial Discrimination and Limits of the Color-blind Approach. 24 UH L. Rev. 821.

Case Notes:

Indictment.

Where indictment mechanism is employed, it must be through an unprejudiced grand jury. 53 H. 226, 491 P.2d 1089.

Although an accused is guaranteed the right to presentment or indictment by a fair and impartial grand jury, the mere absence of an independent grand jury counsel does not establish that the due process rights of the accused were violated. 63 H. 412, 629 P.2d 1111; 63 H. 633, 633 P.2d 1113.

Not violated by indictment which specifies all necessary elements of crime of burglary but does not allege specific crime intended to be committed. 66 H. 312, 660 P.2d 39.

Count of complaint did not allege all of the essential elements of a §134-6(a) offense, thereby failing to ensure that district court had before it all facts necessary to find probable cause on that charge and violating defendant's rights under this section. 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.

Grand jury was presented with sufficient information to determine the existence of probable cause that material distributed to minor by defendant was pornographic for minors under §712-1210(7)(a). 82 H. 474, 923 P.2d 891.

Sufficiency of for credit card offenses. 4 H. App. 52, 659 P.2d 83.

Self-incrimination.

See also notes to U.S. Const. Amend. 5.

State may go beyond federal requisites in protecting right under state constitution. 52 H. 527, 480 P.2d 148; 53 H. 254, 492 P.2d 657.

Unless Miranda warnings are given, defendant's statement cannot be used either as evidence in prosecution's case or to impeach defendant's testimony. 53 H. 254, 492 P.2d 657.

Miranda warnings apply only where person is being subjected to custodial interrogation. 58 H. 94, 564 P.2d 1271.

Miranda fails to restrict State's use of voluntary statement not resulting from custodial interrogation. 58 H. 323, 568 P.2d 1200.

Custodial interrogation for Miranda purposes. 59 H. 357, 581 P.2d 752.

Use immunity conferred by statute is not adequate to supplant constitutional privilege. 62 H. 269, 614 P.2d 915.

Compulsion to produce handwriting examples does not constitute unreasonable search and seizure nor does it violate self-incrimination clause. 62 H. 364, 616 P.2d 193.

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.

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.

Defendant did not waive right to counsel; second interrogation was not "same interrogation" for purposes of Miranda warnings. 69 H. 461, 748 P.2d 365.

Drug testing does not infringe upon the privilege against self-incrimination. 72 H. 67, 806 P.2d 407.

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 Hawaii Rules of Penal Procedure 43(a) (requiring presence of defendant at trial). 72 H. 573, 827 P.2d 648.

Use at sentencing of statements previously obtained in violation of a defendant's privilege against self-incrimination violates that defendant's privilege against self-incrimination and right to due process. 74 H. 424, 848 P.2d 376.

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.

When a suspect makes an ambiguous or equivocal request for counsel during custodial interrogation, the police must either cease all questioning or seek non-substantive clarification of the suspect's request, and if, upon clarification, the defendant unambiguously and unequivocally invokes right to counsel, all substantive questioning must cease until counsel is present. 77 H. 17, 881 P.2d 504.

Coercive conduct of a private person may be sufficient to render a confession inadmissible based on article I, §5 and this section of Hawai'i constitution. 77 H. 51, 881 P.2d 538.

Defendants were induced to make inculpatory statements and to consent to search of their hotel room in violation of article I, §§7 and [10] of Hawai'i constitution. 78 H. 433, 896 P.2d 889.

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.

Court properly accepted witness' claim of privilege where witness' testimony in proceeding might have had some tendency to provide a "link in the chain" of evidence against witness in another killing. 80 H. 307, 909 P.2d 1122.

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.

"Public safety" exception to Miranda not formally adopted by Hawaii supreme court to apply to this section and was inapplicable to case; thus statements by defendant subjected to custodial interrogation without Miranda warnings inadmissible in evidence. 87 H. 71, 951 P.2d 934.

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.

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 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.

Although lawfully "seized" within the meaning of article I, §7 of the Hawaii constitution, defendant was not "in custody" at the time defendant responded to officer's question regarding defendant's age; thus officer was not required to give Miranda warnings prior to asking the question and trial court improperly suppressed defendant's answer. 94 H. 207, 10 P.3d 728.

When an officer lawfully "seizes" a person in order to conduct an investigative stop, the officer is not required to inform that person of the person's Miranda rights before posing questions that are reasonably designed to confirm or dispel--as briefly as possible and without any coercive connotation by either word or conduct--the officer's reasonable suspicion that criminal activity is afoot. 94 H. 207, 10 P.3d 728.

A person is "in custody" for purposes of this section if an objective assessment of the totality of the circumstances reflects either that (1) the person has become impliedly accused of committing a crime due to the sustained and coercive nature of police questions or (2) the point of arrest has arrived because either probable cause to arrest has developed or the police have subjected the person to an unlawful "de facto" arrest without probable cause to do so. 97 H. 107, 34 P.3d 1006.

Officer subjected defendant to "interrogation" where officer admitted that officer was aware that defendant's residential address was relevant to establishing whether defendant constructively possessed any drug contraband that might be found anywhere in the residence such that officer reasonably knew or should have known that asking defendant defendant's residential address, after discovering defendant, early in the morning, in bed in the residence, was likely to yield an incriminating response. 97 H. 107, 34 P.3d 1006.

Where "booking" officer was presumably aware of the concept of constructive possession, search warrant authorized a search for drugs, defendant was found in the bedroom, and raid was early in the morning, officer should have known that asking defendant for defendant's address was likely to elicit an incriminating response; "booking" officer thus obtained defendant's address as a result of "custodial interrogation" without Miranda warnings and waiver and address was thus inadmissible at trial. 97 H. 107, 34 P.3d 1006.

Where detective was fully aware that defendant's address was relevant to prosecuting defendant at the time that detective requested defendant provide defendant's residential address on a form indicating that defendant understood defendant's constitutional rights, detective "interrogated" defendant despite defendant's invocation of defendant's right to remain silent. 97 H. 107, 34 P.3d 1006.

Where totality of the circumstances reflected that an innocent person in defendant's shoes could reasonably have believed that he or she was not free to go and was being taken into custody indefinitely, the point of "de facto" arrest had arrived and, for purposes of this section, defendant was "in custody"; officer thus subjected defendant to custodial interrogation without Miranda warnings rendering defendant's responses inadmissible at trial. 97 H. 107, 34 P.3d 1006.

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.

Although refusal to sign a waiver form or a written statement, was some evidence of the absence of waiver, it was outweighed by affirmative conduct indicative of a knowingly and intelligently made decision not to remain silent and to waive the right to counsel, and circumstances evinced that defendant's undisputed willingness to speak constituted an explicit, affirmative act evidencing a knowing, intelligent, and voluntary waiver; prosecution thus satisfied its burden of proving such waiver. 105 H. 131, 94 P.3d 1275.

Defendant failed to sustain burden of proving custody, where totality of the circumstances failed to reflect either that (1) defendant had become impliedly accused of committing a crime because officer's questions became sustained and coercive, such that they were no longer reasonably designed briefly to confirm or dispel their reasonable suspicion; or (2) the point of arrest had arrived because defendant was subjected to unlawful de facto arrest without probable cause to do so . 105 H. 131, 94 P.3d 1275.

Defendant was not in custody for purposes of triggering Miranda protections where defendant voluntarily approached officers to talk about vehicle, defendant's liberty of movement was not curtailed in any significant manner, no force was used during the encounter, defendant was not moved to a different location or physically restrained, and neither officer displayed a show of authority beyond that inherent in the mere presence of a police officer. 105 H. 131, 94 P.3d 1275.

The presence of an attorney does not constitute an implied waiver of the right to remain silent; defense counsel's presence was not germane to the personal waiver envisioned under this section; a defendant must be advised of his or her right to remain silent even if there is an attorney present; thus, the police had an obligation to advise defendant that defendant had the right to remain silent. 109 H. 482, 128 P.3d 795.

Where detectives met with defendant and counsel in an interview room at the police station for the purpose of interviewing defendant and obtaining defendant's statement for approximately twenty-two minutes without providing defendant with Miranda warnings, this pre-interview constituted interrogation and Miranda warnings were required prior to the pre-interview. 109 H. 482, 128 P.3d 795.

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, the Fifth Amendment and this section 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.

Former jeopardy.

See also notes to U.S. Const. Amend. 5.

Retrial not barred though prosecutor's comments caused mistrial, where no showing that prosecution intended to provoke mistrial. 69 H. 44, 731 P.2d 1261.

A nolle prosequi entered over the defendant's objection, after jeopardy has attached, terminates the prosecution and bars any subsequent trial for the same offense. 69 H. 618, 753 P.2d 806.

Jeopardy attached where defendant had no notice or opportunity to testify on nolle prosequi motion. 71 H. 260, 787 P.2d 692.

No double jeopardy where defendant was acquitted of one of the counts. 72 H. 56, 806 P.2d 402.

Jeopardy attached for criminal charges in circuit court when defendant was sentenced for criminal contempt in family court where charges were based on same conduct supporting contempt conviction. 72 H. 164, 811 P.2d 815, cert. den. 112 S.Ct. 194.

Subsequent retrial of murder conviction reversed on appeal not barred by double jeopardy clause where lower court acted outside scope of its mandate in dismissing indictment and defendant was acquitted of another charge involving proof of conduct that was neither an element of the murder charge of which defendant was convicted nor conduct on which liability was found. 72 H. 480, 825 P.2d 64.

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.

Circuit court not clearly erroneous in finding that prosecutor did not intentionally provoke defendants into moving for mistrial; thus, court correctly concluded retrial not prohibited by double jeopardy. 77 H. 351, 884 P.2d 729.

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.

Section bars retrial for a charge when the government's deliberate trial strategy, which was completely incompatible with another approach it could have pursued, but expressly chose not to, accompanied the termination of the first trial without the jury passing upon that charge. 85 H. 128, 938 P.2d 559.

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.

Reprosecution of a defendant after a mistrial or reversal on appeal as a result of prosecutorial misconduct is barred where the prosecutorial misconduct is so egregious that, from an objective standpoint, it clearly denied a defendant his or her right to a fair trial. 91 H. 405, 984 P.2d 1231.

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; defendant did not "consent" to the mistrial by moving for dismissal with prejudice; retrial thus barred by double jeopardy. 97 H. 238, 35 P.3d 755.

Where, by implying that defendant had information defendant was withholding from jury, prosecution intended jury to note that defendant did not testify, no curative court instruction was given to disregard improper prosecution comments, and evidence did not clearly demonstrate defendant's guilt, prosecution improperly commented on defendant's failure to testify; defendant was thus entitled to a new trial, but prosecutorial misconduct was not so egregious that double jeopardy should attach to prevent retrial. 102 H. 504, 78 P.3d 317.

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.

The trial court did not violate this clause by convicting defendant of attempted murder in the second degree under §707-701.5, and place to keep, and use of a firearm under §134-6, as each of the offenses contains elements which the others do not. 107 H. 469, 115 P.3d 648.

Where legislature intended to punish defendant under both §§134-6(a) and 706-660.1 for use of a firearm in shooting victim, the double jeopardy clause was not violated when the trial court imposed a mandatory minimum term sentence under §706-660.1 for attempted second degree murder when defendant was also convicted of, and sentenced for, use of a firearm in the commission of the separate felony of attempted second degree murder. 107 H. 469, 115 P.3d 648.

Where all of the evidence was discovered subsequent to and as a result of the illegal entry and was thus inadmissible, it should have not been relied upon in measuring the sufficiency of the evidence supporting the convictions; because there wasn't any other admissible evidence against defendant, the evidence was insufficient to support defendant's convictions; thus, jeopardy attached and defendant may not be retried. 108 H. 436, 121 P.3d 901.

If guilty plea is validly set aside, subsequent trial does not violate prohibition against double jeopardy. 4 H. App. 566, 670 P.2d 834.

No prohibition from charging a defendant with having committed one crime in two different ways. 8 H. App. 506, 810 P.2d 672.

No double jeopardy for convictions 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.

Prosecutor's reference to defendants' race in opening statement was not the "exceptional circumstance" in which prosecutorial misconduct rose to the level of egregiousness that bars reprosecution; thus, case vacated and remanded. 98 H. 358 (App.), 48 P.3d 605.

1.11
Grand jury counsel

Whenever a grand jury is impaneled, there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought before it. Independent counsel shall be selected from among those persons licensed to practice law by the supreme court of the State and shall not be a public employee. The term and compensation for independent counsel shall be as provided by law.  [Add Const Con 1978 and election Nov 7, 1978]

Cross References:

Statutory provisions, see §§612-51 to 60.

Case Notes:

Section is not self-executing, and it required a subsequent implementing legislation. 63 H. 412, 629 P.2d 1111; 63 H. 488, 630 P.2d 619; 63 H. 633, 633 P.2d 1113; 63 H. 640, 633 P.2d 545; 65 H. 22, 649 P.2d 363.

Failure to appoint grand jury counsel does not require dismissal of indictment. 63 H. 488, 630 P.2d 619.

Section did not create substantive right for accused. 63 H. 640, 633 P.2d 545.

Grand jury counsel need not be physically present throughout proceeding. 64 H. 197, 638 P.2d 309.

Grand jury counsel created for benefit of grand jury. Not a substantive right of criminal defendant. 64 H. 427, 642 P.2d 534.

1.12
Bail; excessive punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. The court may dispense with bail if reasonably satisfied that the defendant or witness will appear when directed, except for a defendant charged with an offense punishable by life imprisonment.  [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Note:

A proposal of the 1978 Constitutional Convention deleted the former section 12, which read: "No person shall be disqualified to serve as a juror because of sex." This deletion appears to be one of the unspecified changes submitted for ratification under Question 34. On whether any of the changes submitted under Question 34 was in fact approved by the electorate, see Kahalekai v. Doi, 60 H. 324 (1979), excerpted in the note preceding the Preamble to the Constitution.

Law Journals and Reviews:

State v. Kumukau: A Case for the Application of Eighth Amendment Proportionality Analysis. 13 UH L. Rev. 577.

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

Case Notes:

Cruel and unusual punishment.

See notes to U.S. Const. Amend. 8.

Given heinous character of offenses committed and primacy of retributive, incapacitative, and deterrent objectives, prescribed punishment not so disproportionate to proscribed conduct and of such duration as to shock conscience of reasonable persons or outrage moral sense of the community. 83 H. 335, 926 P.2d 1258.

Not violated by ninety-day suspension of driver's license under §291-4 for drunken bicyclist where: (1) no showing that disparity of risk between drunken bicyclists and drunken automobile drivers is so great; and (2) suspension not disproportionately onerous compared to more serious crimes in same jurisdiction and for the same offense in different jurisdictions. 87 H. 249, 953 P.2d 1347.

Not violated by trial court's refusal to find strong mitigating circumstances pursuant to §706-606.5(4) (1998) and imposition of concurrent mandatory minimum ten-year terms where defendant could have reasonably been deemed to pose a danger to society, more serious crimes by repeat offenders may be punished in Hawaii by longer mandatory minimum terms, and other jurisdictions permitted significantly lengthier sentences for repeat offenders. 93 H. 87, 997 P.2d 13.

Registration requirements under chapter 846E not cruel and unusual punishment under this section as registration requirements are not so punitive in nature as to overcome legislature's remedial purpose. 105 H. 222, 96 P.3d 242.

As imposition of one-year term of probation, subject to condition that defendant undergo sex offender evaluation and treatment, for tying up and hitting nephew with belt (1) fell within the range of punishment prescribed by the applicable statutory provisions, (2) did not shock the conscience of reasonable persons, and (3) did not outrage the moral sense of the community, the family court did not violate this section by imposing this sentence. 107 H. 117, 111 P.3d 12.

Bail.

Section also protects persons from unreasonable or arbitrary denial of bail. 64 H. 527, 644 P.2d 968.

Judicial discretion provided for in section applies only during pre-conviction stage. 66 H. 82, 657 P.2d 464.

Cited: 56 H. 447, 539 P.2d 1197.

1.13
Trial by jury, civil cases

In suits at common law where the value in controversy shall exceed five thousand dollars, the right of trial by jury shall be preserved. The legislature may provide for a verdict by not less than three-fourths of the members of the jury.  [Ren and am Const Con 1978 and election Nov 7, 1978; am SB 107 (1987) and election Nov 8, 1988]

Attorney General Opinions:

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

Constitutional amendment must be made to this section before a jury of less than twelve persons may be used for civil matters when parties do not stipulate to a smaller jury panel. Att. Gen. Op. 97-2.

Law Journals and Reviews:

Hawai`i 2000 Report Regarding Lawyers' Opinion Letters in Mortgage Loan Transactions. 22 UH L. Rev. 347.

Case Notes:

Section does not prohibit use of 6-member jury by federal district court in diversity personal injury action. 487 F.2d 957.

Language of U.S. Constitution 7th Amendment preserved in order to preserve also the judicial interpretation. 50 H. 528, 445 P.2d 376.

Right under the procedural rules considered. 50 H. 528, 445 P.2d 376.

Noncompliance with statute and court rules regulating manner of exercising right of jury trial constitutes waiver of right. 53 H. 372, 493 P.2d 1032.

Although court may set aside jury verdict, respect for the jury's assessment of the evidence is mandated. 57 H. 378, 557 P.2d 788.

Question of whether right of jury trial applies to summary possession proceeding raised but not decided. 58 H. 276, 567 P.2d 1239.

Right of jury trial applies to actions involving dower claims. 61 H. 236, 602 P.2d 521.

Appellant had right to jury trial on issue of damages in action arising out of breach of lease agreement where claim was in excess of jurisdictional limit. 72 H. 373, 818 P.2d 1177.

A statutory cause of action, such as a suit under §92E-11(c), is a "suit at common law" under the Hawai`i constitution. 76 H. 101, 869 P.2d 1320.

Sanctions awarded pursuant to rule 26 of Hawai`i arbitration rules did not violate due process or this section. 76 H. 494, 880 P.2d 169.

Apart from the past or present terms of the relevant statutes, as between the common-law practice of England, and its analogue developed under this jurisdiction, the latter controls for purposes of this section. 91 H. 81, 979 P.2d 1107.

Based on the established common law convention of this jurisdiction at the time of adoption of the state constitution, as a general matter, a right to jury trial exists in state eminent domain proceedings. 91 H. 81, 979 P.2d 1107.

Condemnation proceedings constitute "suits at common law" for purposes of this section. 91 H. 81, 979 P.2d 1107.

The "substance" of the jury trial right existing in 1959 does not include the jury determination of blight of summons damages; thus, no right to a jury determination of blight of summons damages exists under this section. 91 H. 81, 979 P.2d 1107.

Employer was entitled to a jury trial, under this section, with respect to employees' allegation of sexual discrimination and retaliation, as §368-17(a) empowered the Hawaii civil rights commission to award legal forms of relief, and, in proceedings before the commission, the employees and executive director claimed legal relief in the form of monetary damages of $400,000 for each employee. 101 H. 438, 71 P.3d 389.

Where third party leasing agents were not parties to lease agreement between landlord and tenant, express waiver of right to jury trial in agreement did not apply to those third parties. 85 H. 300 (App.), 944 P.2d 97.

By entering an order of default against defendant on the issue of liability in an automobile accident case because defendant refused to make an offer of monetary settlement, trial court deprived defendant not only of defendant's right to a trial de novo to appeal the arbitration award, but also of defendant's right under this section to have the liability issue determined by a jury. 99 H. 432 (App.), 56 P.3d 734.

1.14
Rights of accused

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 14th 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.

Case Notes:

Section modeled after the 6th 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.

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.

Confrontation of witnesses.

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

Compulsory process provision construed; witness violating order excluding witnesses from courtroom should still be allowed to testify to guarantee to accused his constitutional right. 51 H. 581, 465 P.2d 560.

No violation where the State made a good faith effort to locate witness. 70 H. 343, 771 P.2d 509.

No violation where witness is unavailable and former testimony is used. 71 H. 274, 789 P.2d 497.

Lower court's failure to issue bench warrant for complaining witness in family abuse case, and denial of motion for dismissal without prejudice, violated appellant's right to confrontation. 72 H. 469, 822 P.2d 519.

Criminal defendant's right to be present at all stages of trial cannot be waived by counsel. 73 H. 97, 828 P.2d 280.

Error for trial court to refuse to permit a defense witness to testify as penalty for violating witness exclusion rule. 73 H. 331, 832 P.2d 269.

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.

Appellant's right violated; trial court improperly admitted witness' testimony under excited utterance exception to hearsay rule where prosecution failed to issue trial subpoena to declarant and failed to make showing of declarant's unavailability. 74 H. 343, 845 P.2d 547.

Admission of co-defendant's testimony concerning incriminatory out-of-court statements made against defendant did not violate defendant's rights to confront defendant's accuser under the U.S. or Hawai'i Constitutions. 76 H. 148, 871 P.2d 782.

Circuit court's limitation of appellant's cross-examination of witness did not violate appellant's right to confront witnesses against appellant where appellant adequately raised issue of witness' possible bias. 78 H. 383, 894 P.2d 80.

Defendant's right of confrontation under this section was violated by the admission of complainant's videotaped interview in lieu of direct examination. 79 H. 128, 900 P.2d 135.

Prior to introduction of videotaped interview, cross-examination of complainant sex assault victim regarding complainant's conversation with police officer satisfied defendant's right of confrontation. 80 H. 107, 905 P.2d 613.

Not violated by admission of declarant's former testimony under HRE rule 804(b)(1) where prosecution established declarant's unavailability, that it had made good faith efforts to secure declarant's presence, and reliability of statement was shown. 82 H. 202, 921 P.2d 122.

Abuse of discretion where trial court excluded evidence of complainant's prior conviction, by prohibiting cross-examination of complainant, from which jury could have inferred that complainant had a motive to bring false charges against defendant and give false testimony at trial. 83 H. 109, 924 P.2d 1215.

Right violated as prosecution witness not "unavailable" under HRE rule 804(a)(5); prosecution's good faith efforts require a search equally as vigorous as that which it would undertake to find a critical witness if it had no prior testimony to rely upon in the event of unavailability. 83 H. 267, 925 P.2d 1091.

Right not violated where trial court allowed defense adequate opportunity to raise issue of witness' possible bias while imposing modest restriction on defense's cross-examination of witness to avoid risk of prejudicing jury. 83 H. 335, 926 P.2d 1258.

Admission into evidence of witness' grand jury testimony under HRE rule 802.1(4), past recollection recorded hearsay exception, did not violate defendant's right where witness' testimony was supported by numerous guarantees of trustworthiness, and defendant was able to cross-examine witness on witness' subsequent failure to remember alleged incident. 92 H. 61, 987 P.2d 959.

Admission into evidence of witness' handwritten statement on the bottom of an identification form, under HRE rule 802.1(4), past recollection recorded hearsay exception, did not violate defendant's right where witness' statement was supported by numerous guarantees of trustworthiness. 92 H. 61, 987 P.2d 959.

Right not violated by trial court's imposition of certain restrictions on scope of defense counsel's cross-examination where (1) there was no reasonable possibility that the cross-examination would have changed the outcome of defendant's trial; (2) witness' second forgery conviction on recross examination was beyond the scope of redirect examination; and (3) defense counsel's inquiring into the location of a map given to witness by defendant was not relevant. 99 H. 390, 56 P.3d 692.

When a statutory privilege interferes with a defendant's constitutional right to cross-examine, then, upon a sufficient showing by the defendant, the witness' statutory privilege must, in the interest of the truth-seeking process, bow to the defendant's constitutional rights. 101 H. 172, 65 P.3d 119.

As there is no exception under HRE rule 804(b)(8) for pending or anticipated litigation, such that statements by victim-wife would have been admissible even if a divorce proceeding had actually been underway, trial court did not abuse discretion in determining hearsay statements were trustworthy; however, trial court abused discretion in admitting statements in violation of defendant's constitutional right to confront and cross-examine adverse witnesses. 103 H. 89, 79 P.3d 1263.

Where trial court prohibited all inquiry into the complainant's alleged motive or bias for faking injury, petitioner's right of confrontation under the Sixth Amendment and this section was violated; appellate court erred and case remanded for new trial. 106 H. 116, 102 P.3d 360.

Not violated in DUI case by admission into evidence of log showing breath-testing instrument had been tested for accuracy. 9 H. App. 130, 828 P.2d 813.

Admission into evidence of redacted confessions of defendants-spouses violated defendants-spouses' confrontational rights. 10 H. App. 43, 861 P.2d 24.

Defendant's confrontation rights were not violated by admission of "hearsay" statements. 79 H. 175 (App.), 900 P.2d 172.

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.

Not violated by complainant's failure to testify at trial because complainant's statements were not hearsay and actual truth or falsity of statements were irrelevant to defendant's conviction for violating warning citation under §709-906. 82 H. 381 (App.), 922 P.2d 994.

Clause not violated where questions defendant wanted to ask police officer regarding officer's "motive" and "knowledge of how much cocaine a drug addict would consume" were not relevant to any issue in case. 82 H. 499 (App.), 923 P.2d 916.

Trial court erred by not allowing defendant to introduce evidence of, and cross-examine victim as to victim's drug use and addiction at or near the time of the incident to the extent that it affected victim's perception or recollection of the alleged event, and defendant was not required to present expert testimony to that effect. 108 H. 102 (App.), 117 P.3d 834.

Where, even in the absence of a plea agreement, witness' pending sentencing in two other criminal matters were relevant and probative of a potential bias or motive for testifying in favor of the State, trial court erred in denying defendant's motion in limine with respect to evidence of witness' pending sentencing, and error was not harmful beyond a reasonable doubt as State's case was based on jury finding that witness' testimony was credible and believing the witness over the defendant. 108 H. 102 (App.), 117 P.3d 834.

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 rule 57, Hawaii rules of penal procedure. 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.

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.

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.

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 6th 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.

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.

Impartial jury.

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.

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.

Speedy trial.

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

Factors considered in determining deprivation of speedy trial. 64 H. 65, 637 P.2d 407.

In consenting to be tried with co-defendants, defendant could not claim that co-defendant's motions were not attributable to defendant. 64 H. 65, 637 P.2d 407.

One year and three week delay between arrest and trial is presumptively prejudicial. 64 H. 65, 637 P.2d 407.

HRPP rule 48 (dismissal) has broader purpose than constitutional right to speedy trial. 73 H. 352, 833 P.2d 66.

Defendant not deprived of right, where although the reason for the delay leaned marginally in defendant's favor, the weight attributed to that factor was offset by defendant's eleventh-hour assertion of defendant's right and defendant's failure to even attempt to demonstrate that defendant was actually prejudiced by the delay in the commencement of trial. 76 H. 415, 879 P.2d 520.

Defendants not deprived of constitutional right to speedy trial where although the reason for the delay factor weighed in favor of the defendants, it was outweighed by the facts that defendants failed to assert their right and failed to demonstrate that they were actually prejudiced by the delay in bringing them to trial. 78 H. 54, 890 P.2d 291.

Where defendant was substantially responsible for pretrial delay and failed to assert right to speedy trial, allowing defendant's case to proceed to trial after eleven-month delay was not error. 92 H. 192, 990 P.2d 90.

Defendant not deprived of right to speedy trial; nineteen-month delay between arrest and trial is presumptively prejudicial; defendant's right to speedy trial accrued when arrested. 4 H. App. 222, 665 P.2d 165.

Defendant's right to a speedy trial was not violated. 8 H. App. 284, 800 P.2d 623.

Among factors to be considered is prejudice to defendant caused by oppressive pretrial incarceration, ignominy occasioned by pending criminal charges, and difficulty of preparing for trial. 9 H. App. 232, 832 P.2d 737.

Right not violated where delay was caused by defendant's own absence from Hawaii and consequent unavailability for trial, and defendant failed to produce evidence that defendant suffered any prejudice. 83 H. 496 (App.), 927 P.2d 1379.

Right not violated where, although the prejudice prong of the Barker analysis weighed in favor of defendant, this prejudice was outweighed by the delay attributable to defendant and defendant's failure to demand a speedy trial; that the unavailability of victim as a witness caused the "possibility of prejudice" to defendant's defense did not support defendant's position that defendant's speedy trial right was violated. 103 H. 490 (App.), 83 P.3d 753.

Cited: 56 H. 378, 537 P.2d 1187.

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.

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.

1.15
Habeas corpus and suspension of laws

The privilege of the writ of habeas corpus shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it.

The power of suspending the privilege of the writ of habeas corpus, and the laws or the execution thereof, shall never be exercised except by the legislature, or by authority derived from it to be exercised in such particular cases only as the legislature shall expressly prescribe.  [Ren and am Const Con 1978 and election Nov 7, 1978]

1.16
Supremacy of civil power

The military shall be held in strict subordination to the civil power.  [Ren Const Con 1978 and election Nov 7, 1978]

1.17
Right to bear arms

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.  [Ren Const Con 1978 and election Nov 7, 1978]

Case Notes:

Right to bear arms may be regulated by the State in a reasonable manner. 82 H. 143, 920 P.2d 357.

1.18
Quartering of soldiers

No soldier or member of the militia shall, in time of peace, be quartered in any house, without the consent of the owner or occupant, nor in time of war, except in a manner provided by law.  [Ren and am Const Con 1978 and election Nov 7, 1978]

1.19
Imprisonment for debt

There shall be no imprisonment for debt.  [Ren Const Con 1978 and election Nov 7, 1978]

1.20
Eminent domain

Private property shall not be taken or damaged for public use without just compensation.  [Am Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

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 Hawaii constitution. Att. Gen. Op. 95-4.

Law Journals and Reviews:

The Amended Just Compensation Provision of the Hawaii Constitution: A New Basis for Indemnification of the Condemnee. 6 HBJ 55.

Extending Land Reform to Leasehold Condominiums in Hawai'i. 14 UH L. Rev. 681.

Case Notes:

Even assuming provision is sufficiently clear to waive State's immunity under Eleventh Amendment, provision would confer jurisdiction only upon state courts. 693 F.2d 928.

Inverse condemnation action discussed. 840 F.2d 678.

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.

Courts are immune from prohibition against taking without compensation. 402 F. Supp. 95.

Where provision was made for just compensation, city ordinance providing mechanism for transfer of fee interest from condominium lessors to lessees was constitutional. 802 F. Supp. 326.

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

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

"Damaged" provision discussed. 55 H. 226, 517 P.2d 7.

Taking under Land Reform Act is for a public use; act's valuation scheme does not deprive landowners of just compensation. 68 H. 55, 704 P.2d 888.

Just compensation in leasehold condemnation under chapter 516. 72 H. 383, 819 P.2d 82.

Condemnation of leased fee interests in residential houselots continued to satisfy "public use" prerequisite of Fifth Amendment to U.S. Constitution and this section. 79 H. 64, 898 P.2d 576.

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.

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.

1.21
Limitations of special privileges

The power of the State to act in the general welfare shall never be impaired by the making of any irrevocable grant of special privileges or immunities.  [Ren and am Const Con 1978 and election Nov 7, 1978]

1.22
Construction

The enumeration of rights and privileges shall not be construed to impair or deny others retained by the people.  [Ren Const Con 1978 and election Nov 7, 1978]

Case Notes:

Hawaii constitution can afford criminal defendants greater protection than those given by federal constitution. 53 H. 254, 492 P.2d 657.

1.23
Marriage

The legislature shall have the power to reserve marriage to opposite-sex couples.  [Add HB 117 (1997) and election Nov 3, 1998]

Law Journals and Reviews:

The Hawai`i Marriage Amendment: Its Origins, Meaning and Fate. 22 UH L. Rev. 19.

The Future of Same-Sex Marriage. 22 UH L. Rev. 119.

The Fine Line Between Love and the Law: Hawai`i's Attempt to Resolve the Same-Sex Marriage Issue. 22 UH L. Rev. 149.

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

1.24
Public access to information concerning persons convicted of certain offenses against children and certain sexual offenses

The public has a right of access to registration information regarding persons convicted of certain offenses against children and persons convicted of certain sexual offenses. The legislature shall determine which offenses are subject to this provision, what information constitutes registration information to which the public has a right of access, the manner of public access to the registration information and a period of time after which and conditions pursuant to which a convicted person may petition for termination of public access.  [Add SB 2843 (2004) and election Nov 2, 2004]

1.25
Sexual assault crimes against minors

 [This section will be printed in the 2007 HRS supplement.]

In continuous sexual assault crimes against minors younger than fourteen years of age, the legislature may define:

  1. What behavior constitutes a continuing course of conduct; and
  2. What constitutes the jury unanimity that is required for a conviction.  [Add SB2246 (2006) and election Nov 7, 2006]

Cross References:

Continuous sexual assault of a minor under the age of fourteen years, see §707-733.6.

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Article I - Bill of Rights

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