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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

KEITH T. MATSUMOTO, Petitioner/Defendant-Appellant.

SCWC-14-0000933

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-14-0000933; CR. NO. 12-1-0918)

OCTOBER 29, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

The defendant in this case confessed to a crime after 

an interrogating officer informed him, untruthfully, that he did 

not pass a polygraph test. Our case law has established that 

deliberate falsehoods extrinsic to the facts of the alleged 

offense, which are of a type reasonably likely to procure an 

Electronically Filed

Supreme Court

SCWC-14-0000933

29-OCT-2019

09:22 AM
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untrue statement or to influence an accused to make a confession 

regardless of guilt, will be regarded as coercive per se. 

The trial court in this case determined that 

defendant’s confession was voluntarily made and admitted it into 

evidence over defense objection. The court also ruled that the 

defendant during his trial testimony, when discussing the 

circumstances of his confession, could not mention the word 

“polygraph,” the word “test,” or that the interrogating officer

gave him inaccurate test results before his confession was 

elicited. 

In this appeal, we consider whether a deliberate 

falsehood regarding polygraph results impermissibly taints a 

confession. We also address whether the court-imposed 

limitations on defendant’s testimony violated his constitutional 

rights to present a defense and to confront witnesses. Lastly, 

we determine the propriety of the court’s instruction to the 

jury that defined an element of the charged offense. 

Based upon our review, we conclude that the circuit 

court erred in its rulings on these three issues and accordingly 

vacate the defendant’s conviction and remand the case for 

further proceedings consistent with this opinion. 
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I. BACKGROUND AND CIRCUIT COURT PROCEEDINGS

Keith T. Matsumoto was arrested at a wrestling 

tournament at Farrington High School (Farrington HS) on the 

island of Oahu on June 9, 2012, based upon allegations that he 

committed a sexual offense during the tournament. Matsumoto was 

subsequently indicted in the Circuit Court of the First Circuit 

(circuit court) for sexual assault in the third degree in 

violation of Hawaii Revised Statutes (HRS) § 707-732(1)(c).

1 

A. Motion to Suppress

Matsumoto moved to suppress statements that he made 

during and after a polygraph examination conducted while he was 

in police custody on June 10, 2012, as well as any other item of 

evidence recovered by the Honolulu Police Department (HPD) after 

that date. 

 

1 HRS § 707-732 (2009) provides as follows:

(1) A person commits the offense of sexual assault in the 

third degree if:

. . .

(c) The person knowingly engages in sexual contact 

with a person who is at least fourteen years old but 

less than sixteen years old or causes the minor to 

have sexual contact with the person; provided that:

(i) The person is not less than five years 

older than the minor; and

(ii) The person is not legally married to the 

minor.
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A hearing on the motion was held at which Matsumoto, 

Detective (Det.) Allan Kuaana, and Det. Kim McCumsey testified 

about the events surrounding a series of custodial 

interrogations that took place following Matsumoto’s arrest.

2 

Matsumoto testified that he was the State Coordinator 

for Wrestling for the Hawai‘i High School Athletic Association, 

that his daughter was a wrestler, and that he had gone to 

Farrington HS with his daughter on June 9, 2012, to volunteer 

for a wrestling tournament. Matsumoto stated that at about 

12:30 p.m. he was asked to step outside, where police officers 

placed him under arrest. He was taken to the HPD main station, 

he testified, where he was booked and held in custody. At 

approximately 8:30 p.m. that evening, Det. McCumsey removed him 

from his cell and took him to an interview room. Matsumoto 

stated that Det. McCumsey, after going over a waiver of rights 

form with him, proceeded to interview him about the events of 

that morning, told him he would have to take a polygraph test,

3

and then returned him to his cell.

 

2 The Honorable Randal K.O. Lee presided over all circuit court 

proceedings referenced in this opinion.

3 During her testimony, Det. McCumsey testified that Matsumoto had 

agreed to take a polygraph test on his own volition when she asked if he was 

willing to submit to the test. 
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The next morning Det. McCumsey escorted Matsumoto to a 

polygraph room, he testified, where she introduced him to Det.

Kuaana before leaving the room.

4 Det. Kuaana gave Matsumoto a 

polygraph waiver form, Matsumoto stated, that indicated 

Matsumoto would be provided with the results of the polygraph 

immediately following the conclusion of the examination. Det.

Kuaana then put electrodes on Matsumoto and hooked him up to the 

polygraph machine, he testified. Det. Kuaana asked a series of

questions, unrelated to the events resulting in Matsumoto’s 

arrest, to calibrate the polygraph. Among other things, Det.

Kuaana asked Matsumoto about his divorce and told Matsumoto to 

say he was holding a $5 bill when he was holding a $20 bill. 

Det. Kuaana then showed Matsumoto the results, Matsumoto stated, 

pointing out where the machine indicated Matsumoto was 

untruthful. 

Matsumoto testified that Det. Kuaana then interviewed 

him regarding the events of the previous day. Matsumoto stated 

 

4 Matsumoto testified that while being held at the HPD main 

station, he was placed in a concrete cell without an adequate blanket to 

shield against the cold temperature, which aggravated an existing spinal 

injury for which he had previously had surgery. He further stated that he 

had eaten very little, had not slept much, and had become dehydrated because 

it was difficult to drink from the fountain in his cell, which caused his 

contact lenses to dry out and scratch his cornea. Matsumoto testified that

he informed Det. Kuaana of his physical state prior to taking the polygraph 

examination. Detectives McCumsey and Kuaana testified that Matsumoto 

appeared well-rested and did not seem to be in any extreme pain or 

discomfort. 
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that, upon completion of the test, Det. Kuaana removed the 

electrodes and told Matsumoto that he did not pass the polygraph 

test. Det. Kuaana never used the term “inconclusive,” Matsumoto 

testified, and he did not show Matsumoto the test results. 

According to Matsumoto, Det. Kuaana continued to 

interrogate him and refused to accept his answers, stating that 

“there had to have been more on the basis that [Matsumoto] had 

failed the polygraph [test].” Matsumoto testified that Det.

Kuaana told him that he needed to make another statement, and 

then told Det. McCumsey upon her return that Matsumoto wished to 

speak with her. 

Following the conclusion of Matsumoto’s testimony, 

Det. McCumsey testified. Det. McCumsey stated that she 

initially asked Matsumoto if he would be willing to take a 

polygraph test because she offers every suspect who denies 

committing a crime the opportunity to take an examination. She 

testified that she believed Det. Kuaana told her that the 

results of Matsumoto’s polygraph test were inconclusive when she 

returned to the polygraph room after the test had concluded. 

Det. McCumsey stated that, following the polygraph examination, 

she brought Matsumoto to an interview room, obtained a waiver of 

his Miranda rights, and interrogated him a second time. 
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Det. Kuaana testified that there are three phases to a 

polygraph examination: the pre-test, the in-test, and the posttest--the last of which includes further interrogation “if 

someone doesn’t pass an exam or fails an exam.” Before giving 

Matsumoto constitutional warnings, Det. Kuaana stated, he 

explained the three phases to Matsumoto and said that he would 

give him the results of the examination during the post-test 

phase. He did not tell Matsumoto that the post-test phase could 

include further interrogation. 

Det. Kuaana testified that during the pre-test phase

he discussed with Matsumoto the difference between truth and 

lies, the test questions, and the allegations against him. The 

detective stated that, during this phase, he interacted with 

Matsumoto as though he believed Matsumoto was innocent and that 

it was his job to assist him in getting through the process. 

Det. Kuaana testified that he also explained to Matsumoto during 

the pre-test phase how a polygraph works, informing him that it 

“is a pass/fail test, either you pass or you don’t.” 

After conducting a practice test, Det. Kuaana 

testified, he moved on to the in-test phase. He testified that 

he asked Matsumoto a series of questions regarding the 

allegations against him and determined that the results of the 

polygraph test were “inconclusive,” meaning that Matsumoto’s 
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“score” was “right in the middle” and did not fall within the 

range needed to pass or to fail the examination. Det. Kuaana 

testified that he nonetheless told Matsumoto that he “did not 

pass the test.” He did not tell Matsumoto that the test was 

inconclusive, but he testified that he believed his statement 

was accurate because “for the sake of the polygraph, an 

inconclusive result is not passing.” 

Det. Kuaana stated that he then moved to the post-test 

phase, in which he began to ask accusatory questions and told 

Matsumoto that he knew Matsumoto was not telling him the truth. 

He explained that he intentionally shifted his attitude during 

this post-test phase as “an interrogation tactic”:

When I go into the post-test phase, obviously I have 

results from my polygraph; he didn’t pass. I know there’s

some other things about the case, so then it becomes more 

accusatory. I become more confident in my accusations. 

It’s no longer about whether or not you’ve done it; we know 

you did it. It’s just a question of why did you do it. 

Det. Kuaana testified that throughout the polygraph test, 

Matsumoto appeared to be in “disbelief” and was calm in a way 

that indicated that Matsumoto could not believe he was in the 

position that he was in. The State rested following the 

conclusion of Det. Kuaana’s testimony.5 

 

5 Det. Kuaana’s Polygraph Examination Report was accepted into 

evidence at the hearing. In the post-test section of the report, Det. Kuaana 

wrote that he “explained the importance to tell the truth so that whenever a 

(continued . . .)
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Matsumoto argued that because the results of a 

polygraph test are inadmissible at trial under Hawaiʻi caselaw,

he would be unable to explain the basis and context of the 

statements he made during the in-test and post-test phases of 

the polygraph examination, and accordingly these statements 

should be inadmissible. Matsumoto also argued that his 

statements during the post-test phase should be suppressed 

because they were the result of Det. Kuaana intentionally 

leading him to falsely believe that he had failed the polygraph 

examination, which is an issue extrinsic to the facts of the 

case, and his statements were thus per se coerced and 

inadmissible under Hawai‘i law.6 

In response, the State argued that, although results 

of a polygraph test are inadmissible, the omission of the 

circumstances surrounding Matsumoto’s statements should not 

render the statements inadmissible because they were supported 

by valid waivers of Matsumoto’s constitutional rights. 

 

(. . . continued)

‘reasonable person’ were to review the facts of the case, that person would 

be able to understand the subject account of the incident.” 

6 Matsumoto also contended that Det. Kuaana’s cautionary advisory 

to him of what a “reasonable person” would be able to understand from the 

facts of the case, in addition to other circumstances that Matsumoto asserted 

amounted to a promise of leniency, resulted in his statements not having been 

knowingly, intelligently, and voluntarily given. 
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Matsumoto’s statements, the State contended, were not obtained 

through coercion or trickery. According to the State, Det.

Kuaana did not lie when he told Matsumoto that he did not pass 

the polygraph examination because the results were inconclusive 

and did not indicate that Matsumoto had passed.7 

The circuit court orally denied the motion to suppress

at the conclusion of the hearing and later issued findings of 

fact and conclusions of law. The court concluded that, while

the results of the polygraph examination were inadmissible at 

trial, the post-polygraph interview was distinguishable from the 

polygraph test results, and the statements made during the postpolygraph interview were therefore admissible. The court 

further found that Det. Kuaana’s statement that Matsumoto did 

not pass the polygraph test was not a falsehood because it was 

technically true that Matsumoto did not obtain a passing result. 

And, even assuming the statement could be considered to be 

deceptive, the court continued, it would not be a falsehood 

extrinsic to the facts of the alleged offense that would be 

reasonably likely to procure an untrue statement. Matsumoto 

 

7 The State also contended that Det. Kuaana’s advice that it would 

be better for Matsumoto to tell the truth was not deceptive or coercive and 

was calculated to enhance the trustworthiness of any subsequent statement by 

Matsumoto. The State thus argued that Matsumoto’s waiver of his 

constitutional rights was knowing, intelligent, and voluntary. 
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“could have insisted that the test was wrong and that he had 

been telling the truth,” the court stated. The court thus ruled 

all of Matsumoto’s statements were admissible.8 

B. Prohibition Against Mentioning Polygraph at Trial

Prior to trial, Matsumoto filed a motion in limine 

regarding the statements he made following the polygraph 

examination. At the hearing, Matsumoto again argued that Det.

Kuaana’s statement to him that he did not pass the polygraph 

test was a “material misrepresentation.” Matsumoto argued that

the fact that he took a polygraph examination should be 

admissible, as should the fact that he was told that he did not 

pass. Otherwise, Matsumoto argued, the jury would not know the 

context in which the statements were made, including that his 

statements were motivated by his false belief that he had failed 

the polygraph examination. 

The circuit court ruled that there was to be no 

mention of the word “polygraph” or the word “test.” The court 

further ruled that Det. Kuaana would only be allowed to testify

that he made a statement to Matsumoto that was not “totally 

 

8 The court did not independently address Det. Kuaana’s advice to 

Matsumoto that it was important to tell the truth so that a reasonable person 

could follow his account or Matsumoto’s testimony that Det. Kuaana’s promised 

him leniency if he confessed, but it ruled that Matsumoto’s statements were 

intelligently, knowingly, and voluntarily made without police coercion. 
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true.” The parties were also not permitted to say to the jury 

that the statement was a material misrepresentation, the court 

held. 

C. Trial

Trial commenced on January 17, 2014, and included the 

following testimony. The complaining witness (CW) testified 

that, on the day of the tournament at Farrington HS, Matsumoto 

touched her two times in ways that made her feel uncomfortable.9 

The first time occurred when she was getting pre-match 

paperwork. Matsumoto bumped into her and his hand slid across 

her buttocks, she stated. The CW testified that there were many 

people in the area and she believed at the time that it was an 

accident. 

The second time took place while the CW was coaching 

one of her friends, she stated. The CW testified that she 

remembered Matsumoto walking up behind her and talking to her 

“about wrestling stuff” as he massaged her shoulders and touched 

her stomach. When the CW tried to leave, she testified, 

Matsumoto slapped and grabbed her buttocks with both hands. The 

CW said that, after Matsumoto touched her this second time, she

went straight to her father to tell him what happened because 

 

9 The CW described these incidents as a touch, a slap, a slide, or 

a grab of her buttocks. 
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she felt uncomfortable. The CW testified that the touch was not 

to congratulate her for anything. 

William Ullom, who was a volunteer wrestling coach at 

Radford High School and was familiar with the complainant 

through his experience in the wrestling community, testified for 

the State.

10 Ullom stated that he saw Matsumoto “inappropriately 

touch[]” the CW by grabbing her buttocks and moving his hands to 

her groin and down the sides of her back. The CW reacted by 

getting up immediately, acting distraught, and leaving, Ullom 

testified. According to Ullom, as part of his mandatory 

reporting obligations as a coach, he insisted the police be

called. 

Det. Kuaana testified that his post-polygraph 

interrogation of Matsumoto lasted three and a half hours.11 

During the first part of his interrogation, Det. Kuaana 

testified that he attempted to develop a rapport with Matsumoto 

to get him to relax and communicate, and that he then asked 

 

10 Ullom was also familiar with Matsumoto from two interactions at 

previous wrestling tournaments. In the first incident, a student wrestler 

did not have a doctor’s note allowing him to participate in a match; Ullom 

attempted to have a tournament doctor clear the student to participate, but 

Matsumoto opposed this effort as it was against the tournament rules. In the 

second incident, one of Ullom’s students was initially prevented from 

participating for failure to weigh in but was eventually allowed to compete. 

11 The interrogation was not recorded, but Det. Kuaana testified 

that he took notes of what was said. 
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Matsumoto for the facts of the case as Matsumoto understood them 

to be. Matsumoto stated that he did not touch the CW’s butt in 

any way.

Det. Kuaana testified that he then switched to a 

“direct confrontation technique” in which he “exud[ed] 

confidence” in the fact that the person he was interrogating 

committed an offense. Det. Kuaana acknowledged that during the 

interrogation he provided some information to Matsumoto that was 

“not completely accurate” but explained that interrogators are 

permitted to use deception within guidelines set by case 

precedent. Det. Kuaana indicated that his goal was to get 

Matsumoto to admit that he had grabbed the CW’s buttocks, if 

Matsumoto had done so. Det. Kuaana testified that, although he 

knew there were inconsistencies in the police reports, he told 

Matsumoto that he had solid evidence and that based on what he 

had seen and what he knew, there was no doubt that the 

allegations against him were true.12 

Det. Kuaana then showed Matsumoto a diagram of the 

gym, and he pointed out where Matsumoto was when the touching 

 

12 Det. Kuaana also used an “alternative question” technique in 

which he said to Matsumoto: “Okay, look you know, there’s no doubt that you 

touched her, but what I want to know is did you touch her just one time or 

more than once?” According to Det. Kuaana, that question had “three possible 

answers: more than once, just once, or never.” Det. Kuaana testified that 

Matsumoto answered that he had only touched the CW once and was dejected 

after saying so. 
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occurred. Matsumoto said that the CW was crouched down and he 

had patted and grabbed her buttocks. 

Det. McCumsey testified that she observed and listened 

to Det. Kuaana’s post-polygraph interrogation of Matsumoto 

through a viewing window. According to Det. McCumsey, by the 

end of Det. Kuaana’s interrogation, Matsumoto admitted to 

“grabbing” the CW’s buttocks while she was bent over by the 

wrestling mat watching one of her friends. Det. McCumsey stated

that, following Det. Kuaana’s interrogation and with Matsumoto 

present, Det. Kuaana told her what Matsumoto said in the 

interrogation as if she had not heard it before. Det. McCumsey 

testified that Matsumoto agreed to submit to a second 

interrogation by her.

13 

During Det. McCumsey’s testimony concerning her 

interrogations of Matsumoto, two video recordings of those

interrogations were played for the jury.14 In the second

 

13 The substance of these recordings was consistent with Det. 

McCumsey’s testimony at trial. 

14 These videos had been edited to remove matters the court had 

ruled were inadmissible. Before the recording of the first interrogation was 

played, Matsumoto objected to giving the jury redacted transcripts of these 

videos. The deleted text was replaced by large black lines varying in size 

from several lines, with some lines covering nearly a full page. Matsumoto 

argued that the large number of redactions were prejudicial because the jury 

would speculate as to the substance of the redacted words, and he requested 

that the jurors just watch the videos and not be provided with the 

transcripts. The court overruled Matsumoto’s objection, allowed the jury to 

use the redacted transcripts, and instructed the jurors not to speculate 

regarding the redacted content. 
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interrogation, Det. McCumsey testified, Matsumoto made 

statements about not remembering how any touching could have 

happened but said that he must have touched the CW. Det. 

McCumsey stated that when she tried to “lock [Matsumoto] in” to 

get him to “commit to something[,]” regarding touching the CW, 

Matsumoto responded, “I’m not gonna say I didn’t. But if 

anything, I would characterize it as a ‘good job’ slap.” After 

Matsumoto later said that it might have been a “‘good job’ pat 

on the butt,” Det. McCumsey stated, she asked if the reason that 

Matsumoto touched the CW that way was because it was a moment of 

“bad judgment,” and Matsumoto said it was “weakness.” Det. 

McCumsey testified that Matsumoto also agreed that he grabbed 

the CW’s buttocks “because the opportunity was there.” In the 

interrogation, according to Det. McCumsey, Matsumoto 

demonstrated a slapping-type motion, not a grabbing motion. 

Following the State’s last witness, Matsumoto made a 

motion for a judgment of acquittal. The court denied the motion

and Matsumoto proceeded with his case. 

Darren Reyes, head coach for the Farrington HS 

wrestling team, was the site director and host for the 

tournament where the alleged incident took place. During the 

tournament, Reyes coached the CW on a wrestling move. He 

testified that the CW never told him that she had been 
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inappropriately touched by Matsumoto and that she appeared

“jolly” and “cheerful” subsequent to the match when the alleged 

touching occurred. 

Corey Taniguchi, a volunteer coach at the wrestling 

tournament, testified that he was standing near the CW during 

the second alleged touching. He testified that he saw nothing 

unusual during the match. R.G., a student from Waipahu High 

School, refereed the match when the second alleged incident 

occurred. He testified that he did not see Matsumoto touch the 

CW at any time. 

Matsumoto testified on his own behalf. He indicated

that he was the technical director for the Hawai‘i Technology 

Development Venture, a federal program that develops the 

technology industry in Hawaiʻi. Matsumoto stated that he 

wrestled in high school and in college and had been coaching 

since 1979.15 At the time of the tournament, Matsumoto said that 

he was a certified USA wrestling coach and was involved in 

 

15 Matsumoto also testified to previous incidents with Ullom, which 

Matsumoto portrayed as negative. Matsumoto stated that he blocked Ullom’s 

student from participating in a tournament for failing to have a doctor’s 

note. According to Matsumoto, Ullom reacted poorly to this decision. 

Additionally, Matsumoto testified that, at a separate tournament, he was 

required to block a student from wrestling for failing to weigh in. He was 

forced to ask Ullom to leave the coach’s table, Matsumoto related, due to

Ullom’s disruptive reaction to his decision. 
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running wrestling tournaments and managing the state wrestling 

weight monitoring program. 

Matsumoto testified that he arrived at the tournament 

around 10:30 a.m. He explained that one of his two daughters

was a wrestler at the tournament. According to Matsumoto, the 

first time he saw the CW was at the scoring table; she was 

standing next to one of Matsumoto’s daughters and other female 

wrestlers. Matsumoto stated that he just said “hi” to the CW 

but did not want to bother her because she was “running the 

clock” for a match. 

Matsumoto testified that, during the first alleged 

touching, he was focused on coaching, did not interact with the 

CW, and did not have any physical contact with the CW. 

Regarding the second alleged incident, Matsumoto admitted making 

contact with CW’s buttocks but stated that it was a “good job 

pat on the butt and not a grab as alleged.” 

According to Matsumoto, Det. Kuaana suggested that, if

he gave the police something, apologized, and quit coaching, the 

case might not proceed.16 Based upon Det. Kuaana telling him

about the strength of the case and providing him with 

 

16 Matsumoto also testified that Det. Kuaana told him that if he did 

not tell the police what he did, he would spend another night in the cell 

block, but that if he admitted something, they could try “to work something 

out.” 
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“misleading or inaccurate information,” Matsumoto testified, he 

began to doubt his memory. Matsumoto stated that he never told 

Det. Kuaana that he grabbed the CW’s buttocks, but acknowledged 

that it was possible that he may have touched the CW. Matsumoto 

testified that he found out later that Det. Kuaana gave him 

information that was not completely accurate and that there was 

“no doubt” that the information was not completely accurate. 

During the third interrogation, Matsumoto testified, 

he told Det. McCumsey that he could not recall touching the CW’s 

butt but gave various examples of how it could have occurred. 

1. Jury Instructions and Verdict

During the settlement of the jury instructions, the 

circuit court considered its proposed supplemental jury 

instruction 2 to define “sexual contact”17:

“Sexual contact” means any touching, other than acts

of “sexual penetration,” of the sexual or other intimate

parts of a person not married to the actor, or of the

sexual or other intimate parts of the actor by the person,

whether directly or through the clothing or other material

intended to cover the sexual or other intimate parts.

“Sexual parts” means the sex organs.

“Intimate parts” means the buttocks and those parts

of the body typically associated with sexual relations.

In considering whether the part of the body touched

is a “sexual or other intimate part,” you must consider the

context in which the touching occurred.

 

17 Sexual assault in the third degree, HRS § 707-732(1)(c), requires 

proof of sexual contact. See supra note 1. 
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(Emphases added.)

Matsumoto argued that case law had limited 

consideration of “context” to the circumstances underlying 

the incident at issue and that context must exclude 

subsequent conduct in a different setting. Accordingly, he 

proposed his own instruction as to the applicable law.18 

Matsumoto contended that it was “critical for the jury to 

understand that not any touching of the buttocks is 

automatically sexual contact” as the instruction indicated.

The court during the conference with counsel 

provided the parties with a modified supplemental jury 

instruction 2, which proposed substituting a single word.19

Matsumoto also objected to this instruction, maintaining 

that he still requested his proposed instruction 3 because 

it more accurately reflected the statement in State v. 

 

18 Matsumoto’s proposed instruction 3 reads as follows:

In determining whether an alleged touching of [the CW’s] “sexual or 

other intimate parts” occurred, you must consider the context in which 

the alleged touching occurred. A body part which might be a “sexual or 

other intimate part” in one context might not be in another context. 

“Sexual parts” refers to the sex organs. “Intimate parts” refers to 

those parts of the body typically associated with sexual relations. 

The “context” refers only to the particular situation in which the 

alleged touching occurred. In evaluating the “context” in which the 

alleged touching occurred, you must only consider the circumstances of 

the particular incident, not the circumstances that occurred in prior 

or subsequent incidents. 

19 The court modified supplemental instruction 2 to replace the word 

“touching” in the last paragraph with “contact.” 
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Silver, 125 Hawaii 1, 249 P.3d 1141 (2011), that “a body 

part which might be a sexual or other intimate part in one 

context might not be in another.” The court refused 

Matsumoto’s proposed instruction 3 and submitted, over 

defense objection, its supplemental jury instructions 2 to 

the jury. 

The jury found Matsumoto guilty as charged. Matsumoto 

was sentenced to five years of probation, which included a jail 

term of six months as a condition. Matsumoto appealed from the 

judgment of conviction and probation sentence to the 

Intermediate Court of Appeals (ICA). 

II. ICA PROCEEDINGS

The ICA in its summary disposition order (SDO),

20 first 

addressed the voluntariness of Matsumoto’s statements. The ICA 

held that Det. Kuaana’s statement that Matsumoto did not pass 

the polygraph test was not a deliberate falsehood because 

“strictly speaking” Matsumoto “did not score well enough to 

‘pass’ nor did he score well enough to fail.” The ICA also 

concluded that the challenged statements of Det. Kuaana 

regarding the polygraph test results were intrinsic to the 

 

20 The ICA’s SDO can be found at State v. Matsumoto, No. CAAP-14-

0000933, 2017 WL 3720456 (Aug. 29, 2017). 
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charge because they related to the strength of the evidence 

against Matsumoto and thus were not coercive per se.

Next, the ICA analyzed the totality of the 

circumstances surrounding Matsumoto’s post-polygraph statements 

and held that Matsumoto’s post-polygraph statements were 

voluntary. The ICA determined that it was “far from clear that 

hearing he did not pass the polygraph exam caused Matsumoto to 

make his post-polygraph statements.” In addition, the ICA 

pointed to the detectives’ descriptions of Matsumoto as not 

appearing physically impaired and Matsumoto’s level of education 

as supporting the determination of Matsumoto’s post-polygraph 

statement as voluntary.

21 

The ICA then addressed the circuit court’s exclusion 

of evidence that Matsumoto’s post-polygraph statements were 

induced by Det. Kuaana’s representation that Matsumoto did not 

pass the polygraph test. The ICA concluded that “Hawaiʻi case 

law does not provide for an exception to the prohibition against 

polygraph results,” and Det. Kuaana’s assessment of the 

polygraph results and his statements to Matsumoto were therefore 

properly excluded. 

 

21 The ICA did not address Matsumoto’s argument that his confession 

was induced by Det. Kuaana’s implied promise of leniency. 
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23

As to the court’s instruction on “intimate parts,” the 

ICA concluded that the jury instructions adequately conveyed the 

need to consider the context in which a body part was touched as

required by State v. Silver. Matsumoto’s argument, the ICA 

stated, “hinges on the supposition that the jury followed the 

[“intimate parts” of the instruction] but ignored the [“context 

part of the instruction”] and fails to provide any evidence in 

support of this assumption.” Without such evidence, the ICA 

held that Matsumoto could not overcome the presumption that a 

jury generally follows court instructions and did so in this 

case. 

Lastly, as to the sufficiency of the evidence, the ICA 

noted that both the CW and Ullom “testified that the touching 

was more than a swat on the buttocks but consisted of squeezing 

and moving his hands to the front of [the CW’s] body.” Viewing 

the testimony of the CW and Ullom in the strongest light for the 

prosecution, the ICA held that there was substantial evidence 

such that a reasonable juror could have found Matsumoto guilty.22

The ICA thus affirmed the circuit court’s judgment of 

conviction and probation sentence. Matsumoto timely filed an 

application for writ of certiorari, which this court accepted. 

 

22 The ICA also rejected Matsumoto’s argument regarding the 

prejudicial presentation of the redacted transcripts. 
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III. STANDARDS OF REVIEW

A. Conclusions of Law

Conclusions of law are reviewed de novo, under the 

right/wrong standard of review. Maria v. Freitas, 73 Haw. 266,

270, 832 P.2d 259, 262 (1992).

B. Voluntariness of a Statement

The admissibility of a confession or an inculpatory 

statement, that is “whether the confession or inculpatory 

statement was voluntarily given,” is a “purely legal question” 

decided by the trial court by “assess[ing] the manner in which a 

confession or inculpatory statement [was] extracted.” State v. 

Kelekolio, 74 Haw. 479, 518, 849 P.2d 58, 76 (1993).

C. Jury Instructions

The propriety of jury instructions is a question of 

law reviewed de novo using the following standard: whether, 

“when read and considered as a whole, the instructions given are 

prejudicially insufficient, erroneous, inconsistent, or 

misleading.” State v. Bovee, 139 Hawaii 530, 537, 394 P.3d 760, 

767 (2017) (quoting State v. Frisbee, 114 Hawaii 76, 79, 156 

P.3d 1182, 1185 (2007)).

D. Sufficiency of Evidence

A jury verdict must be upheld if there is substantial 

evidence to support the conclusion of the trier of fact. 
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“‘Substantial evidence’ as to every material element of the 

offense charged is credible evidence which is of sufficient 

quality and probative value to enable a [person] of reasonable 

caution” to reach a conclusion. State v. Batson, 73 Haw. 236, 

248-49, 831 P.2d 924, 931 (1992). Such evidence is viewed in 

the light most favorable to the prosecution. Id.

IV. DISCUSSION

A. Voluntariness of Statements

“The constitutional right against self-incrimination 

prevents the prosecution’s use of a defendant’s extrajudicial 

admissions of guilt where such admissions are the product of 

coercion.” State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 

69 (1993) (citing State v. Wakinekona, 53 Haw. 574, 576, 499 

P.2d 678, 680 (1972)). The reasons for barring coerced 

admissions include “the inherent untrustworthiness of 

involuntary confessions, a desire that criminal proceedings be 

accusatorial rather than inquisitorial[,] and a desire that the 

police not become law breakers in the process of achieving 

society’s valid law enforcement objectives.” Id. (citing 

Wakinekona, 53 Haw. at 576, 499 P.2d at 680). 

A police officer’s use of subterfuge to induce a 

suspect to make an incriminating statement may rise to the level 

of coercion, rendering the statement involuntary, untrustworthy, 
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and inadmissible. See id. at 508-09, 849 P.2d 72. When 

measuring “the legitimacy of the use of ‘deception’ by the 

police in eliciting confessions or inculpatory statements from 

suspects and arrestees,” Hawai‘i courts evaluate the use of 

falsehoods regarding information intrinsic to the case 

differently from deception that is extrinsic to the facts of the 

alleged offense. Id. at 511, 849 P.2d at 73. When the police 

use “deliberate falsehoods extrinsic to the facts of the alleged 

offense, which are of a type reasonably likely to procure an 

untrue statement or to influence an accused to make a confession 

regardless of guilt, [they] will be regarded as coercive per 

se.” Id. (emphasis omitted). 

Examples of extrinsic falsehoods include assurances of 

divine salvation upon confession; promises of mental health 

treatment in exchange for a confession; assurances of treatment 

in a “nice hospital” in lieu of incarceration, in exchange for a 

confession; promises of more favorable treatment in the event of 

a confession; and misrepresentations of legal principles, such 

as misrepresenting the consequences of a “habitual offender” 

conviction and holding out that the defendant’s confession 

cannot be used against the defendant at trial. Id. at 512–13, 

849 P.2d at 73–74. 
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When the police use “deliberate falsehoods intrinsic

to the facts of the alleged offense in question[, they] will be 

treated as one of the totality of circumstances surrounding the 

confession or statement to be considered in assessing its 

voluntariness.” Id. at 511, 849 P.2d at 73. Intrinsic 

falsehoods include, for example, a statement that a murder 

victim is still alive, a claim that articles of clothing were 

found at a crime scene, or an assertion that cameras were 

recording the area of the crime.

Matsumoto argues that, because Det. Kuaana employed an 

extrinsic falsehood to induce him to make incriminating 

statements, the circuit court should have concluded that his 

post-polygraph interviews were the result of coercion.

1. Deception as to the Polygraph Results

a. Det. Kuaana’s statement to Matsumoto that he did not pass the 

polygraph was an objective falsehood

Matsumoto contends that Det. Kuaana telling him that 

he did not pass the polygraph test was a falsehood that should 

have led the circuit court to preclude his statements at trial. 

The circuit court concluded, and the ICA agreed, that telling 

Matsumoto that he did not pass the polygraph test was not a 

falsehood, and even if it were, the falsehood was intrinsic to 

the offense and therefore his confession was admissible. 
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Det. Kuaana told Matsumoto that a polygraph 

examination is “a pass/fail test, either you pass or you don’t.” 

This was an incorrect and misleading characterization of a 

polygraph test, Det. Kuaana admitted, as the results may be 

inconclusive. Det. Kuaana acknowledged that there was a third 

possible outcome by explaining that Matsumoto did not score well 

enough to pass, nor “well enough to fail”; Matsumoto was “right 

in the middle.” Despite previously explaining to Matsumoto that 

he would receive the results of the polygraph test, Det. Kuaana 

never disclosed to Matsumoto that his test results were

inconclusive. 

Det. Kuaana’s statement that Matsumoto did not pass 

the polygraph test, taken in conjunction with the earlier 

misstatement that a polygraph test could only be passed or 

failed, necessarily implied that Matsumoto had failed the 

polygraph examination, which was objectively false. Det. Kuaana 

then reinforced this false impression by “confident[ly]” telling 

Matsumoto that he was not telling the truth, which Det. Kuaana 

described as “an interrogation tactic” to inform Matsumoto that 

he had obtained objective proof from the polygraph test that 

Matsumoto was lying. Matsumoto would thus have logically 

concluded that Det. Kuaana was communicating the results that he 

was promised and which represented the entirety of the 
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information gleaned from the polygraph test. Det. Kuaana never 

corrected this impression by fulfilling his pledge to disclose 

the actual results of the polygraph examination--that the test 

results were inconclusive. 

Taken in context, Det. Kuaana’s statements to 

Matsumoto amounted to an objective falsehood. And, in light of 

Det. Kuaana’s testimony that he was “allowed to use deception” 

within “strict guidelines” and was acting “within these 

guidelines” when he made the inaccurate statements to Matsumoto, 

they were deliberate falsehoods. Thus, Det. Kuaana used 

deliberate deception when interrogating Matsumoto.

b. Det. Kuaana’s deliberate falsehood was an extrinsic falsehood

that was coercive per se

As stated, a deliberate falsehood will be regarded as 

coercive per se if the falsehood is extrinsic to the facts of 

the alleged offense and is of a type reasonably likely to 

procure an untrue statement or to influence an accused to make a 

confession regardless of guilt. Kelekolio, 74 Haw. at 511, 849 

P.2d at 73. A deception of this nature obviates the need for a 

“totality of circumstances” analysis of the voluntariness of the 

statement by the court in order to determine admissibility. Id. 

The deliberate falsehood in this case was Det. 

Kuaana’s statements regarding the results of Matsumoto’s 

polygraph test. This falsehood was not a lie by the officer 
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about any “facts of the alleged offense.” It was not, for 

example, a falsehood about the existence of bystanders to the 

crime, of witnesses coming to the station to give a statement, 

or the discovery of a weapon used to commit the offense. 

Instead of being a lie about the facts of the offense, it was a 

lie about the test results of a scientific instrument that was 

avowed to accurately determine whether the subject of the test 

was telling the truth.23 But lying about the results of a 

scientific test is unequivocally not a lie about the facts of 

the offense, and the falsehood in this case was thus extrinsic 

to the facts of the alleged offense. 

Additionally, to be coercive per se, the deliberate 

falsehood also must be of a type that is reasonably likely to 

induce an untrue statement or to influence an accused to make a 

confession regardless of guilt. In addressing this factor, we 

consider the nature of the polygraph test itself and the effects 

of its results on the examinee. 

The polygraph is a scientific instrument that purports 

to accurately determine whether the subject of the test is 

telling the truth. See United States v. Scheffer, 523 U.S. 303, 

313 (1998) (“The common form of polygraph test measures a 

 

23 During Matsumoto’s test, the polygraph indicated that Matsumoto 

lied about having $20 in his hand, emphatically external to the fact. 
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variety of physiological responses to a set of questions asked 

by the examiner, who then interprets these physiological 

correlates of anxiety and offers an opinion . . . about whether 

. . . the accused--was deceptive in answering questions.”). An 

examinee who has not lied does not expect to be given falsified 

polygraph test results from the police. It is thus not 

surprising that the presentation of falsified results may have 

serious and substantial effects on a suspect. “[E]xperiments 

have shown that . . . counterfeit test results . . . can 

substantially alter subjects’ . . . beliefs, perceptions of 

other people, behaviors toward other people, emotional states, . 

. . self-assessments, [and] memories for observed and 

experienced events.” Saul M. Kassin et. al, Police-Induced 

Confessions: Risk Factors and Recommendations, 34 L. & Hum. 

Behav. 3, 17 (2010) (citing studies that have tracked the 

effects of counterfeit test results, along with other deceptive 

tactics) (internal citations omitted). 

Falsified polygraph results may pressure a suspect 

into changing the suspect’s pre-test narrative. This pressure 

is intensified when an officer expresses confidence that the 

suspect is lying and is aggressive in pushing the suspect to 

confess on the basis of the officer’s pre-formed belief of the 
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suspect’s guilt.24 Richard A. Leo & Richard J. Ofshe, The Truth 

About False Confessions and Advocacy Scholarship, 37 Crim. L. 

Bull. 293, 293-370 (2001). Falsified polygraph results are 

geared towards making the suspect believe in one’s own guilt or 

believing that the officer will not stop the interrogation until 

the suspect confesses guilt. See Klara Stephens, Misconduct and 

Bad Practices in False Confessions: Interrogations in the 

Context of Exonerations, 11 Ne. U. L. Rev. 593, 596 (2019) 

(finding that false polygraph results are “bad practices” that

produce both true and false confessions). 

Once a suspect believes that a confession of guilt is 

inevitable, the individual is cognitively geared to accept, 

comply with, and even approve of that outcome. Kassin et. al., 

supra, at 17, (citing Elliot Aronson, The Social Animal (1999))

(exploring how human beings cognitively respond once they view 

an outcome as inevitable). That is, false polygraph results may 

psychologically prime an innocent suspect to make a confession.

 

24 Det. Kuaana described the post-polygraph phase as follows:

When I go into the post-test phase, obviously I have 

results from my polygraph; he didn’t pass. I know there’s 

some other things about the case, so then it becomes more 

accusatory. I become more confident in my accusations. 

It’s no longer about whether or not you’ve done it; we know 

you did it. It’s just a question of why did you do it. 
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The case of “The Norfolk Four” is emblematic of how 

falsified polygraph results can coerce a suspect into making a 

confession. See Tom Wells & Richard A. Leo, The Wrong Guys

(2008) (detailing the backgrounds, arrests, interrogations, and 

court proceedings of the Norfolk Four). The Norfolk Four were 

young men, each without criminal records, each enlisted in the 

Navy, and each trained to endure highly stressful situations. 

Id. These men were subjected to intense interrogations in which 

they were repeatedly accused of lying and fed information about 

the case. During their interrogations, the men each took a 

polygraph test and were presented with falsified polygraph test 

results. Only then did the men confess, in graphic detail, to a 

brutal “gang” rape and murder that they did not commit. Id. 

Shortly after their confessions, DNA evidence conclusively 

showed that none of these men was the donor of the semen sample 

recovered from the victim. Nevertheless, their cases were still 

prosecuted: one of the men was convicted by a jury of the murder 

and rape, another was convicted of rape, and two took plea 

agreements to avoid the death penalty.25 Id. Subsequent to 

their trials, the sole perpetrator of the crimes, who was 

 

25 One of these men, Joseph Dick, became so convinced of his guilt 

after the false polygraph results that he would go on to testify against the 

other defendants and even wrote apology letters to the family of the victim 

professing his guilt. Wells & Leo, supra, at 187, 244. 
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already in prison for sexual assault, confessed to the crime and 

a DNA match was obtained from him. It took over 20 years for 

the Norfolk Four to be granted clemency. Priyanka Boghani, 

“Norfolk Four” Pardoned 20 Years after False Confessions, PBS 

(Mar. 22, 2017).26

Extensive scientific literature and numerous 

documented cases have demonstrated the coercive nature of 

falsified polygraph test results; they can change a suspect’s 

beliefs, pressure a suspect to confess, and even cause the 

suspect to believe they committed the crime when they did not. 

We thus conclude that providing falsified polygraph test results 

to a suspect as part of a custodial interrogation is an 

extrinsic falsehood that poses an unacceptable risk of inducing

an untrue statement or influencing an accused to make a 

confession regardless of guilt. See State v. Cabagbag, 127 

Hawaii 302, 277 P.3d 1027 (2012) (relying on scientific studies 

to require a specific jury instruction regarding factors to 

consider in evaluating the reliability of eyewitness 

identifications). Thus, inculpatory statements elicited during 

a custodial interrogation from a suspect whom has previously 

been given falsified polygraph results in the interrogation 

 

26 https://www.pbs.org/wgbh/frontline/article/norfolk-four-pardoned20-years-after-false-confessions/ [https://perma.cc/J929-N96Y]. 
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process are coercive per se and are inadmissible at trial. 

Kelekolio, 74 Haw. at 511, 849 P.2d at 73. 

Accordingly, based on the foregoing, the circuit court 

erred in determining that Det. Kuaana’s falsification of the 

polygraph test results was not a falsehood and in admitting 

evidence of Matsumoto’s confession. 

2. The Admission of Matsumoto’s Confession Was Not Harmless Error

Erroneously admitted evidence is evaluated under the 

harmless beyond a reasonable doubt standard. State v. McCroy, 

104 Hawaii 203, 210, 87 P.3d 275, 282 (2004). Under this

standard, “[t]he relevant question . . . is whether there is a 

reasonable possibility that error might have contributed to 

[the] conviction.” State v. Kim, 140 Hawaii 421, 434 n.15, 402 

P.3d 497, 510 n.15 (2017) (quoting State v. Han, 130 Hawaii 83, 

93, 306 P.3d 128, 138 (2013)). Here, Matsumoto’s confession was 

contrary to his testimony at trial in which he denied the sexual 

nature of his conduct in touching the CW. The confession likely 

detrimentally affected Matsumoto’s credibility in the minds of 

the jury and thus there is a reasonable possibility that this 

evidence may have contributed to Matsumoto’s conviction. State 

v. Kazanas, 138 Hawaii 23, 41, 375 P.3d 1261, 1279 (2016)

(holding that where the case turned on the credibility of the 

defense’s witness versus the State’s, the improper admission of 
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a statement which harmed credibility was not harmless beyond a 

reasonable doubt). Accordingly, the circuit court’s error was 

not harmless beyond a reasonable doubt.27

B. Exclusion of Evidence of the Circumstances Surrounding the 

Eliciting of Matsumoto’s Confession28

The due process guarantee of the Hawaiʻi Constitution 

serves “to protect the right of an accused in a criminal case to 

a fundamentally fair trial,” and “[c]entral to the protections 

of due process is the right to be accorded ‘a meaningful 

opportunity to present a complete defense.’”29 State v. Tetu, 

 

27 Matsumoto asserts that the court erroneously denied his motion 

for judgment of acquittal. However, by presenting evidence after his motion 

was denied, Matsumoto waived any error made by the circuit court in denying 

the motion. State v. Calaycay, No. SCWC-17-0000386, 2019 WL 4010192, at *6 

(Haw. Aug. 26, 2019). Accordingly, we instead review whether the State 

presented sufficient evidence to support the conviction. We review the trial 

record to determine whether, when considered in the strongest light for the 

prosecution, there was substantial evidence to support the conviction. State 

v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992). Here, Ullom 

testified that he saw Matsumoto “inappropriately touch” the CW’s buttocks and 

the CW testified that Matsumoto grabbed her buttocks in a manner that 

made her uncomfortable. This evidence is of “sufficient quality and 

probative value to enable a [person] of reasonable caution” to reach a 

conclusion as to the elements of the charged offense and to support the 

conviction. Id. 

28 Our determination that police deception as to the polygraph test 

results was coercive per se essentially resolves the appeal in this case. 

Nonetheless, we address whether the circuit court erred in excluding 

Matsumoto from testifying as to the totality of the circumstances surrounding 

his confession to enable the jury to assess its probative weight and 

reliability because of the likelihood of the recurrence of this issue in 

future cases and in light of the ICA’s resolution of this point on appeal. 

29 Article I, sections 5 and 14 of the Hawai‘i Constitution provide 

in relevant part the following:

Section 5. No person shall be deprived of life, liberty 

or property without due process of law[.]

(continued . . .)
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139 Hawaii 207, 219, 386 P.3d 844, 856 (2016); State v. Matafeo, 

71 Haw. 183, 185, 787 P.2d 671, 672 (1990) (quoting California 

v. Trombetta, 467 U.S. 479, 485 (1984)). Matsumoto asserts that 

the failure to allow him to adduce the facts and circumstances 

surrounding his confession violated his rights to present a 

defense and to confront witnesses under the United States

Constitution and the Hawaiʻi Constitution. 

Matsumoto argues that the circuit court abused its 

discretion in precluding him from adducing evidence at trial 

that his post-polygraph statements were induced by Det. Kuaana’s 

misrepresentation that he did not pass the polygraph test. 

Despite the general rule that evidence of polygraph test results 

or a defendant’s refusal or willingness to submit to a polygraph 

examination is inadmissible, Matsumoto argues, there should be 

an exception to that prohibition “where such evidence is 

relevant to the credibility of a confession that is introduced 

by the State” based on this court’s decision in State v. 

 

(. . . continued)

. . . .

Section 14. In all criminal prosecutions, the accused 

shall enjoy the right . . . to be confronted with the 

witnesses against the accused, . . . to have compulsory 

process for obtaining witnesses in the accused’s favor[.]

Haw. Const. art I, §§ 5, 14.
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Kelekolio, 74 Haw. 479, 505, 849 P.2d 58, 70 (1993). In 

response, the State points to the “per se rule of exclusion” 

regarding polygraph test evidence and contends that “the 

potential for prejudice resulting from the jury knowing 

[Matsumoto] had an inconclusive result with regard to the 

polygraph test would far outweigh any probative value that such 

evidence might have in determining the voluntariness or 

involuntariness of his subsequently obtained statement.”

In Kelekolio, this court explained the difference 

between determining a statement’s “admissibility (i.e., whether 

the confession or inculpatory statement was voluntarily given),” 

which is a question for the court, and determining the weight 

and effect of the confession or inculpatory statement with 

regard to its credibility and reliability (i.e., its worthiness 

of belief),” which is a question for the jury. See 74 Haw. at 

518, 849 P.2d at 76 (emphasis omitted). Consequently, a 

defendant has “the right to put before the jury, as the trier of 

fact, all evidence, including the facts and circumstances 

surrounding the making of his confession, ‘relevant to weight or 

credibility.’” Id. at 516, 849 P.2d at 75 (quoting Hawai’i Rules 

of Evidence (HRE) Rule 104(e) (1985)). 

The Supreme Court in Crane v. Kentucky emphasized that 

credibility questions, “whether of a witness or of a confession, 
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are for the jury,” and a defendant has a “traditional 

prerogative to challenge the confession’s reliability during the 

course of the trial.”30 476 U.S. 683, 688 (1986) (citing Jackson 

v. Denno, 378 U.S. 368, 386 n.13 (1964)). Accordingly, 

“evidence about the manner in which a confession was secured 

will often be germane to its probative weight, a matter that is 

exclusively for the jury to assess.” Id. Specifically, “the 

physical and psychological environment that yielded the 

confession can [] be of substantial relevance to the ultimate 

factual issue of the defendant’s guilt or innocence.” Id. at 

689. Even voluntary confessions “are not conclusive of guilt[,] 

[a]nd, as with any other part of the prosecutor’s case, a 

confession may be shown to be ‘insufficiently corroborated or 

otherwise . . . unworthy of belief.’” Id. (last alteration in 

original) (quoting Lego v. Twomey, 404 U.S. 477, 485–86 (1972)). 

The Crane court explained that “a defendant’s case may 

stand or fall on [the defendant’s] ability to convince the jury 

that the manner in which the confession was obtained casts doubt 

on its credibility.” Id. Thus, if a defendant is “stripped of 

 

30 Crane involved a juvenile whose confession was admitted at trial. 

476 U.S. at 684-85. At trial, the juvenile sought to introduce testimony 

about the environment in which he made the confession to show that the 

confession was unworthy of belief, but the trial court ruled the testimony 

inadmissible. Id. at 685-86. 
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the power to describe to the jury the circumstances that 

prompted [the] confession, the defendant is effectively disabled 

from answering the one question every rational juror needs 

answered: If the defendant is innocent, why did [the defendant] 

previously admit [] guilt?” Id. 

At the suppression hearing, Det. Kuaana and Matsumoto 

both testified that Det. Kuaana told Matsumoto that he “did not 

pass” the polygraph test. Before the trial began, the circuit 

court ruled that there was to be no mention of the word 

“polygraph” or the word “test” and that the parties were not to 

say that the statement was a “material misrepresentation.” The 

court stated it would only allow witnesses to say that Det. 

Kuaana made a statement that was not “totally true.” The court 

did not permit Matsumoto to testify or elicit from Det. Kuaana 

that the not “totally true” statement was in regard to 

Matsumoto’s polygraph test results. 

At trial, within the strictures of the court’s ruling, 

Det. Kuaana testified that he provided Matsumoto “with some 

information that was not completely accurate.” Matsumoto 

likewise testified that Det. Kuaana gave him “information that 

[he] later on found out was not completely accurate” and that 

there was “no doubt” that the information was not completely 

accurate. Based, in part, on this “misleading or inaccurate 
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information,” Matsumoto testified that he “started doubting what 

[he] could recall.” There was no other testimony concerning 

what Det. Kuaana told Matsumoto regarding the polygraph test. 

The jury also heard testimony from Det. McCumsey and 

Det. Kuaana that Matsumoto admitted to grabbing the CW’s 

buttocks while she was watching one of the wrestling matches and 

heard from Det. Kuaana that Matsumoto had “change[d] his 

statement and admitted to” grabbing the CW’s buttocks. These 

statements, the jury further heard, were made after Matsumoto 

was told something that was not “completely accurate.” 

Thus, the jury received the testimony of the 

detectives that Matsumoto admitted to grabbing the CW’s buttocks 

while she was watching the match, and they heard testimony that 

Matsumoto was told something that was not “completely accurate.” 

What the jury did not have, however, was exactly what Matsumoto 

was told before he made inculpatory statements: that he did not 

pass the polygraph test. 

The jury was not able to hear from Matsumoto as to the 

physical and mental effect of first being attached to a machine 

that purports to discern lies from the truth, being subjected to 

the polygraph test, and then being told that he did not pass the 

test, essentially indicating that Matsumoto lied. There is no 

comparison between, on the one hand, an explanation that 
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Matsumoto confessed because he was told something that was not 

“completely accurate,” and, on the other, an explanation that he 

confessed because he was told that he did not pass a polygraph 

test conducted by a police detective who specifically questioned 

him on the nature of his conduct. 

As a result of the circuit court’s ruling, Matsumoto 

was unable to exercise his “right to put before the jury . . . 

all evidence, including the facts and circumstances surrounding 

the making of his confession, ‘relevant to weight or 

credibility.’” Kelekolio, 74 Haw. at 516, 849 P.2d at 75 

(quoting HRE Rule 104(e) (1985)). Matsumoto was not permitted 

to adequately explain why he made the inculpatory statements, 

“the one question every rational juror needs answered.” Crane, 

476 U.S. at 689.31 Without being allowed to fully explain the 

 

31 This court has observed that, “It would appear, at least in the 

absence of stipulation, that the courts almost uniformly reject the results 

of lie detector tests when offered in evidence for the purpose of 

establishing the guilt or innocence of one accused of a crime, whether the 

accused or the prosecution seeks its introduction.” State v. Chang, 46 Haw. 

22, 32, 374 P.2d 5, 11 (1962), overruled on other grounds by State v. 

Okumura, 78 Hawaii 383, 894 P.2d 80 (1995). The Chang court explained that,

“Courts do not consider the polygraph or lie detector sufficiently perfected 

nor the interpretation of results in its use reliable enough to permit 

testimony respecting such a test to be admitted in evidence.” Id. at 31, 374 

P.2d at 11; accord Okumura, 78 Hawaii at 397, 894 P.2d at 94 (“According to 

well-established precedent in this jurisdiction, polygraph results are not 

admissible at trial whether offered by the prosecution or the defense

. . . .”) abrogated on other grounds by State v. Cabagbag, 127 Hawaii 302, 

277 P.3d 1027 (2012); State v. Antone, 62 Haw. 346, 357, 615 P.2d 101, 109 

(1980) (same). 

None of these cases, however, concerned the “right to put before 

the jury . . . all evidence, including the facts and circumstances 

(continued . . .)
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circumstances surrounding his confession, the jury was unable to 

make an informed determination regarding the credibility, 

reliability, and the weight to be given to Matsumoto’s 

inculpatory statements. Kelekolio, 74 Haw. at 518, 849 P.2d at 

76. The circuit court’s decision to preclude Matsumoto from 

adducing evidence that his post-polygraph test statements were 

induced by Det. Kuaana, including being told that he did not 

pass the polygraph test, severely compromised Matsumoto’s 

constitutional right to a fair trial under article I, section 5 

and to present a complete defense under article I, section 14 of 

the Hawaii Constitution.32 Therefore, the circuit court erred

and the ICA also erred in affirming the circuit court’s ruling.33

 

(. . . continued)

surrounding the making of his confession, ‘relevant to weight or 

credibility.’” Kelekolio, 74 Haw. at 516, 849 P.2d at 75. Any concerns of 

possible prejudice to the parties may be met by a limiting instruction to the 

jury that the evidence as to the polygraph was admitted solely for the jurors 

to consider the circumstances surrounding the making of the confession in 

order to determine weight or credibility of the confession. See, e.g., 

People v. Melock, 599 N.E.2d 941, 960 (Ill. 1992); People v. Rosemond, 790 

N.E.2d 416, 425 (Ill. App. Ct. 2003); State ex rel. Kemper v. Vincent, 191 

S.W.3d 45, 52 (Mo. 2006); State v. Melvin, 319 A.2d 450, 460 n.2 (N.J. 1974); 

Crumpton v. Commonwealth, 384 S.E.2d 339, 343 (Va. Ct. App. 1989). 

32 Several courts in other jurisdictions have considered cases 

involving circumstances similar to this case. Crumpton, 384 S.E.2d at 343

(holding that a jury cannot appreciate the significance of a confession 

unless the defendant was able to “fully explain the surrounding circumstances 

and reasons” that he altered his prior statement after a polygraph had been 

conducted); State v. Schaeffer, 457 N.W.2d 194, 196 (Minn. 1990) (holding 

that “if the trial court admits the confession, the trial court ‘must permit 

the jury to hear evidence on the circumstances surrounding the making of the 

confession . . . for a determination of weight and credibility’” thus 

allowing the defense to present evidence that the defendant confessed only 

(continued . . .)
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C. Jury Instruction

A. “Intimate Parts” Instruction Was Flawed

“It has long been held that it is the judge’s duty to 

ensure that all jury instructions cogently explain the law 

applicable to the facts in the case before it.” State v. 

Taylor, 130 Hawaii 196, 210, 307 P.3d 1142, 1156 (2013). “This 

court has repeatedly stated that ‘it is the duty of the circuit 

judge to see to it that the case goes to the jury in a clear and 

intelligent manner,’” so that the jurors may have a clear and 

correct understanding of what it is they are to decide. Id.

 

(. . . continued)

after being told he failed a polygraph test); Melock, 599 N.E.2d at 956, 960

(holding that “a defendant in a criminal case has a right at trial to present 

evidence concerning the circumstances of his confession” and that “polygraph 

evidence should have been admitted for the limited purpose of determining the 

credibility and reliability of the confession”). 

33 Matsumoto also argues that the circuit court abused its 

discretion in providing the jury with obviously redacted transcripts of the 

video recordings of his interrogations as there is a possibility that the 

redactions invited speculation from the jury as to the omitted content and 

that there is a substantial risk that the jury would ignore the court’s 

limiting instruction not to speculate. While we decline to resolve the issue 

in light of our disposition on other issues, we note that a redacted 

transcript does not guarantee a defendant protection from prejudice created 

by the redactions. Redacted transcripts, particularly where the redactions 

are as pronounced as in this case, may have the effect of drawing the jury’s 

attention to those omitted portions and may invite speculation on the part of 

the jury as to the omitted content. Because of this legitimate risk, a trial 

court should evaluate the nature of a transcript redaction in accordance with 

the general standards of HRE Rule 403’s probative value test. In this case, 

for example, the court may have considered whether the video recordings were 

easily understandable without the transcript, whether the State could have 

readily modified the transcript to make the redactions of the transcript less 

prominent or minimize any potential prejudice (as was done with the 

meticulously modified video recording of the interrogations), and whether the 

blacked out passages could have been interpreted by the jury in a manner 

prejudicial to the defense. 
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(quoting State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310 

(1980)); accord State v. Bovee, 139 Hawaii 530, 540, 394 P.3d 

760, 770 (2017). 

In this case, the circuit court gave, over Matsumoto’s 

objection, the following instruction to the jury:

“Sexual contact” means any touching other than acts

of sexual penetration of the sexual or other intimate parts

of a person not married to the actor or of the sexual or

other intimate parts of the actor by the person, whether

directly or through the clothing or other material intended

to cover the sexual or other intimate parts.

“Sexual parts” means sexual organs.

“Intimate parts” means the buttocks and those parts

of the body typically associated with sexual relations.

In considering whether the part of the body touched

is a sexual or other intimate part, you must consider the

context in which the contact occurred.

(Emphasis added.) Matsumoto objected, maintaining that he was 

requesting his proposed instruction because it more accurately 

reflected the statement in State v. Silver that “a body part 

which might be a sexual or other intimate part in one context 

might not be in another.” Matsumoto further argued that the 

court’s instruction was not specific enough, it did not fully 

describe context, and it did not include the limiting language 

relating to consideration of context for each individual 

incident. In setting forth his objection to the court’s 

instruction, Matsumoto specifically incorporated his written 

arguments submitted in support of his proposed instruction 3,
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which emphasized that “it is critical that [the] jury understand 

that not any touching of the buttocks is automatically sexual 

contact.” 

a. The instruction contained a misstatement of law

It appears that the initial error in the circuit 

court’s instruction originates from its misapprehension of our 

decision in State v. Silver, 125 Hawaii 1, 249 P.3d 1141 (2011). 

There, the defendant argued that there was nothing in the sexual 

assault statutes that suggested that the legislature considered 

the buttocks to be an “intimate part” within the meaning of 

“sexual contact” as defined in HRS § 707-700. Id. at 6, 249 

P.3d at 1146. This court examined the plain language of HRS 

§ 707–700 and concluded that the provision “does not indicate 

whether the legislature considered the buttocks to be a part of 

the body typically associated with sexual relations.” Id. at 7, 

249 P.3d at 1147. However, in reviewing the legislative history 

of section 707–700, as well as engaging in an in pari materia 

reading of HRS § 712–1210, we concluded that “the legislature 

intended the buttocks to be an ‘intimate part’ for purposes of 

‘sexual contact’ as that phrase is defined in section 707–700.” 

Id. In support of its conclusion, the Silver court cited the

following statement from State v. Kalani: “This court has noted 

that the definitions of ‘sexual contact’ under HRS § 707–700 and 
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‘sexual conduct’ under HRS § 712–1210 were both ‘adopted 

expressly for use in penal statutes regulating conduct with 

sexual connotations’ and construed the two statutes with 

reference to one another.” Id. (emphasis added) (quoting 108 

Hawaii 279, 286, 118 P.3d 1222, 1229 (2005)). Thus, the Silver

court held that the buttocks may be an intimate part under the 

definition of “sexual contact” provided the conduct involving 

the buttocks is associated with “sexual connotations” or “sexual 

relations.” Id. The Silver court emphasized this holding by 

quoting from the ICA decision in the same case, which 

“cautioned” that “a ‘body part which might be intimate in one 

context, might not be in another [context].’” Id. (citing

State v. Silver, 123 Hawaii 299, 233 P.3d 719 (App. 2010) 

(unpublished table decision)). This court further quoted from 

the ICA decision as follows:

with respect to the buttocks, it is not uncommon for youth

team coaches to give their players a congratulatory pat on

the buttocks in recognition of a good play or outstanding

effort. Parents hugging or carrying a young child may also

place their hands on the child’s buttocks. In these

situations, adults are knowingly touching the buttocks of

another person who is less than fourteen years old. But

because of the context, it would be unreasonable to regard

the child’s buttocks as an “intimate part” for purposes of

applying the sexual assault statutes. In these contexts,

the child’s buttocks would not be a body part “typically

associated with sexual relations.”
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Id. (emphasis added) (quoting Kalani, 108 Hawaii at 284–85, 118 

P.3d at 1227–28).34 

In this case, the circuit court instructed the jury 

that intimate parts means the buttocks. In doing so, the court 

effectively told the jury that, as a matter of law, the buttocks 

is an intimate part of the body. This statement is plainly 

contrary to our holding in Silver. The circuit court apparently 

relied upon statements in the Silver decision that indicate that 

the legislature intended the buttocks to be included within 

“intimate parts” as that term is used in “sexual contact.”35 See

Silver, 125 Hawaii at 7, 249 P.3d at 1147. But the fact that 

 

34 The Silver court next considered whether there was substantial 

evidence to support the defendant’s convictions. 125 Hawaii at 7, 249 P.3d 

at 1147. With regard to the late night massages, the minor testified that, 

while the defendant slept next to him, the defendant woke him up at least 

three different times by rubbing his buttocks and whispering to him. Id. 

Based on such evidence, this court concluded that the defendant’s conduct 

“constituted the touching of an ‘intimate part’ of Minor’s body.” Id. On 

the other hand, as to conduct in the pool that the minor described as the 

defendant holding “[k]ind of like my crotch to throw me or under my butt to 

throw me,” the context of the conduct as occurring during horseplay in a pool 

was insufficient as a matter of law to support a conviction. Id. at 8, 249 

P.3d at 1148. The key to this court’s ruling was that the conduct was not 

demonstrated to have sexual connotations or be associated with sexual 

relations but, instead, involved horseplay. Id. at 8-9, 249 P.3d at 1148-49. 

35 We have repeatedly cautioned, “It is not every statement of the 

law found in a text-book or opinion of a judge, however well and accurately 

put, which can properly be embodied in an instruction.” Territory v. Cutad, 

37 Haw. 182, 186 (Haw. Terr. 1945) (quoting Garfield v. State, 74 Ind. 60, 

63-64 (1881)); State v. Clyde, 47 Haw. 345, 357, 388 P.2d 846, 853 (1964); 

accord In re Estate of Herbert, 90 Hawaii 443, 468, 979 P.2d 39, 64 (1999). 

This caveat is even more salient when the statement is not a statement of law 

but, instead, is a part of the court’s reasoning leading to the court’s 

decision.

 
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the legislature had no intention to exclude the buttocks from 

“intimate parts” is a completely different proposition than the 

conclusive statement that “intimate parts” means the buttocks.

The circuit court’s instruction therefore misstated the law 

insofar as it necessarily included the buttocks within the 

meaning of “[i]ntimate parts.”36

b. The instruction was ambiguous and incomplete

Matsumoto also argues that the circuit court’s 

instruction was not specific enough and did not provide the 

meaning of context. 

As stated, the circuit court instructed the jury as 

follows: 

“Intimate parts” means the buttocks and those parts

of the body typically associated with sexual relations.

In considering whether the part of the body touched

is a sexual or other intimate part, you must consider the

context in which the contact occurred.

(Emphasis added.) 

The court’s instruction was deficient in that the 

court failed to inform the jury that the touching of the 

buttocks must be associated with sexual relations or have sexual 

connotations in order for the buttocks to be an intimate part. 

 

36 The circuit court’s misstatement of law that “‘[i]ntimate parts’ 

means the buttocks” was not corrected. The jury was never expressly 

instructed that an intimate part does not mean the buttocks under certain 

circumstances. 
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See Silver, 125 Hawaii at 7, 249 P.3d at 1147 (concluding that 

for a part of the body to be considered an “intimate part” as 

used in HRS § 707-700, it must be associated with sexual 

relations); Kalani, 108 Hawaii at 284-85, 118 P.3d at 1227-28 

(same). Thus, the context the jury considered may have had 

nothing to do with whether the conduct was associated with 

sexual relations or sexual connotations, and the fact that the 

touching occurred in a high school athletic setting may have 

been considered as a context sufficient to render the buttocks 

an intimate part.37

Relatedly, the jury was also never instructed that a 

part of the body which might be sexual or intimate in one 

context might not be in another. This was a significant 

omission given the circuit court’s erroneous statement that the 

 

37 Matsumoto also argues that the jury should have been instructed, 

pursuant to Silver, to limit its consideration of “context” to the alleged 

touching at the wrestling mat. In Silver, this court disagreed with the 

ICA’s conclusion that a rational jury could infer a connection between 

touching in a pool and late night massages in the home. 125 Hawaii at 4, 8-

9, 249 P.3d at 1144, 1148-49. The defendant’s subsequent conduct during the 

massages, we reasoned, did not turn the defendant’s earlier conduct in the 

pool--which was “otherwise not actionable”--into a criminal offense. Id. at 

8-9, 249 P.3d at 1148-49. The ICA’s conclusion, this court stated, relied on 

“conduct that occurred at a later time, in a different setting, and which was 

the basis for three separate counts of sexual assault.” Id. at 8, 249 P.3d 

at 1148. 

In this case, the CW testified about two occasions when Matsumoto 

touched her; however, she characterized one of those occasions as 

“accidental.” It does not appear that the State sought to infer a connection 

from the conduct that occurred by the wrestling mat to the conduct that the 

CW testified was accidental. However, on remand, the circuit court should 

address this aspect of context in its instructions. 
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buttocks is an intimate part as a matter of law. The omission 

had the detrimental effect of increasing the ambiguity of the 

instruction.

Here, the circuit court’s jury instruction contained a 

misstatement of law and was ambiguous and incomplete. Thus, the 

ICA erred in concluding that Matsumoto’s argument pertaining to 

the jury instructions was without merit.38 On remand, the

instruction on “intimate part” should cogently explain the law 

applicable to the facts in this case. Taylor, 130 Hawaii at 

210, 307 P.3d at 1156.

V. CONCLUSION

Accordingly, the ICA’s September 26, 2017 Judgment on 

Appeal and the circuit court’s June 27, 2014 Judgment of Guilty 

Conviction and Probation Sentence are vacated, and this case is 

 

38 The ICA ruled that Matsumoto’s argument relied on the assumption 

that the jury only followed the first part of the court’s instruction that 

“‘[i]ntimate parts’ means the buttocks” and disregarded the second part 

requiring consideration of the context in which the contact occurred. The 

ICA held that Matsumoto failed “to provide any evidence in support of this 

assumption” and that the jury is presumed to follow the court’s instructions. 

Whether a jury instruction is flawed is not determined by whether 

the defendant is able “to provide any evidence in support of [an] assumption” 

that the jury followed a flawed portion of the instruction. Even assuming 

that the circuit court’s instruction in its entirety was not technically 

flawed, “[t]he ‘(q)uestion on review of instructions is not whether they were 

technically correct but whether defendant could have suffered prejudice on 

their account.’” State v. Napeahi, 57 Haw. 365, 377, 556 P.2d 569, 576 

(1976). Given the contradictory nature of the court’s instruction, it is not 

possible to determine which portion of the instruction the jury followed. 

Additionally, the instruction was ambiguous and incomplete for the reasons 

discussed. 
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remanded to the circuit court for further proceedings consistent 

with this opinion. 

David M. Hayakawa

for petitioner

Chad M. Kumagai

(Stephen K. Tsushima with him 

on the briefs)

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson