*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

STATE OF HAWAIʻI, 

Plaintiff-Appellee, 

vs. 

RICHARD OBRERO, 

Defendant-Appellant. 

SCAP-21-0000576 

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT 

(CAAP-21-0000576; CASE NO. 1CPC-19-0001669) 

SEPTEMBER 8, 2022 

McKENNA, WILSON, AND EDDINS, JJ.; WITH NAKAYAMA, J., 

CONCURRING SEPARATELY AND DISSENTING, WITH WHOM McKENNA, J., 

JOINS AS TO SECTIONS II AND III; AND RECKTENWALD, C.J., 

DISSENTING, WITH WHOM NAKAYAMA, J., JOINS 

OPINION OF THE COURT BY EDDINS, J. 

I. INTRODUCTION 

This case is about what limits, if any, Hawai‘i Revised 

Statutes (HRS) § 801-1 (2014) imposes on the State’s ability to 

prosecute felonies. The law says: 

Electronically Filed

Supreme Court

SCAP-21-0000576

08-SEP-2022

08:28 AM

Dkt. 20 OP
2 

No person shall be subject to be tried and sentenced to be 

punished in any court, for an alleged offense, unless upon 

indictment or information, except for offenses within the 

jurisdiction of a district court or in summary proceedings 

for contempt.

HRS § 801-1. 

 Defendant-Appellant Richard Obrero argues the State 

violated HRS § 801-1 by using the complaint and preliminary 

hearing process to prosecute him for second-degree murder, 

attempted murder in the first and second degree, and use of 

firearm in the commission of a separate felony. 

 We agree. Obrero isn’t charged with contempt. And the 

felonies he’s charged with are neither within the jurisdiction 

of the district court nor chargeable by information, see HRS 

§§ 806-82 (2014), 806-83 (Supp. 2021). So Obrero is a person 

who shall not “be subject to be tried and sentenced . . . in any 

court, for an alleged offense, unless upon indictment.” HRS 

§ 801-1. 

We hold that HRS § 801-1 means what it plainly says: 

criminal defendants cannot be “subject to be tried and sentenced 

to be punished in any court, for an alleged offense” without an 

indictment or information unless the charged offense is either 

contempt or within the jurisdiction of the district court. 

We also hold that defendants are “subject to be tried and 

sentenced to be punished” at arraignment, when they must either 

plead guilty, and be subject to sentencing, or plead not guilty, 
3

and be subject to trial and possibly also sentencing.

II. PROCEDURAL BACKGROUND

A. Circuit Court Proceedings

On November 12, 2019, the State filed six separate 

complaints against Obrero, alleging, among other things,1 that he 

had committed second-degree murder in violation of HRS §§ 707-

701.5 (Supp. 2021) and 706-656. 

Two days later, on the morning of November 14, 2019, the 

State presented its case against Obrero to an Oʻahu Grand Jury.2 

The grand jury returned a no bill. It did not think there was 

probable cause to believe Obrero committed any of the charged 

crimes. And it voted against allowing the State to subject 

Obrero to the indignity, expense, and stigma of a criminal 

prosecution.

The State was undeterred. On the afternoon of November 14, 

2019 – just a few hours after the grand jury returned a no bill 

– the State made its case again,3 this time at a preliminary 

 1 The State also alleged Obrero had violated HRS § 134-21 (2011) by using 

a firearm to commit second-degree murder. And that he’d committed one count 

of attempted murder in the first degree in violation of HRS §§ 705-500

(2014), 707-701(1)(a) (2014 & Supp. 2021), and 706-656 and three counts of 

attempted murder in the second degree in violation of HRS §§ 705-500, 707-

701.5, and 706-656 (2014).

2 The proposed indictment included the six offenses in the complaint as 

well as three counts of carrying or use of firearm in the commission of a 

separate felony in violation of HRS § 134-21.

3 The State argued that there was probable cause to charge Obrero for the 

six offenses alleged in the complaint.
4 

hearing before the district court. The hearing was continued to 

the next day; when it concluded, the district court — unlike the 

grand jury — found there was probable cause to charge Obrero. 

It committed Obrero’s case to the Circuit Court of the First 

Circuit.4

Obrero pled not guilty at his November 2019 arraignment. 

Later, in July 2021, Obrero moved for dismissal of the 

charges. He argued the State’s prosecution of him was unlawful 

because there was no indictment. He pointed to the plain 

language of HRS § 801-1: 

No person shall be subject to be tried and sentenced to be 

punished in any court, for an alleged offense, unless upon 

indictment or information, except for offenses within the 

jurisdiction of a district court or in summary proceedings 

for contempt.

HRS § 801-1. 

 Obrero argued that his charges weren’t for contempt and 

didn’t fall “within the jurisdiction of a district court.” He 

reasoned that since the charges against him can’t be charged by 

information (which is only available for certain Class B and C 

felonies, see HRS §§ 806-82, 806-83), he is a person who shall 

not “be subject to be tried and sentenced to be punished in any 

court, for an alleged offense, unless upon indictment.” See HRS 

§ 801-1.

 

4 The State consolidated its six previously-filed complaints into a 

single complaint in the circuit court. 
5 

The State opposed Obrero’s motion. It urged the court to 

look beyond the plain text of HRS § 801-1 and interpret the 

statute through reference to article I, section 10 of the Hawai‘i 

Constitution. 

Before 1982, the Hawai‘i Constitution mirrored the federal 

constitution in requiring grand jury presentments or indictments 

for felony prosecutions. In 1982, a constitutional amendment 

rolled back the constitutional grand jury indictment requirement 

for felony prosecutions. Now, article I, section 10 begins: “No 

person shall be held to answer for a capital or otherwise 

infamous crime,5 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 information6 in writing 

signed by a legal prosecuting officer . . . .” (emphasis added). 

The State argued that the 1982 amendment didn’t just make 

it constitutional for it to initiate felony prosecutions through 

the complaint and preliminary hearing process, it also 

 

5 Article I, section 10 refers to “infamous crimes,” rather than 

felonies. We have never considered the meaning of the term “infamous crimes” 

as used in article I, section 10. But in Mackin v. United States, 117 U.S. 

348, 354 (1886), the United States Supreme Court held that an “infamous 

crime” in the context of the Fifth Amendment right to a grand jury indictment 

excluded “misdemeanors not punishable by imprisonment in the penitentiary.” 

And United States v. J. Lindsay Wells Co., 186 F. 248, 250 (W.D. Tenn. 1910) 

held that an “infamous crime” was one that may lead to the punishment of 

imprisonment for more than one year, a definition that encompasses all 

felonies.

6 Article I, section 10 was amended again in 2004 to allow for 

information charging. See 2004 Haw. Sess. L., at 1085.
6 

effectively nullified HRS § 801-1’s grand jury protections by 

authorizing the State to use complaints and preliminary hearings 

to initiate felony prosecutions. 

The State supported this position with a discussion of 

Hawai‘i Rules of Penal Procedure Rules (HRPP) 5(c) and 7(b). The 

former explicitly contemplates preliminary hearings as 

proceedings that may follow the arrest of defendants charged 

with felonies. The latter — in direct conflict with HRS § 801-1 

— states that a felony may be prosecuted by complaint “if with 

respect to that felony the district judge has found probable 

cause at a preliminary hearing and has committed the defendant 

to answer in the circuit court . . .” (or if the defendant has 

properly waived the right to an indictment or preliminary 

hearing). See HRPP Rule 7(b). The State notes that under HRS 

§ 602-11 the HRPP have the force and effect of law. 

The trial court denied Obrero’s motion to dismiss. It 

relied on the in pari materia canon of statutory construction, 

which provides that laws on the same subject matter should be 

“construed with reference to each other” so that “[w]hat is 

clear in one statute may be called upon in aid to explain what 

is doubtful in another.” Wells Fargo Bank, N.A. v. Omiya, 142 

Hawai‘i 439, 450, 420 P.3d 370, 381 (2018). The court recognized 

that HRS § 801-1 “standing alone . . . could lend itself to the 

interpretation that Mr. Obrero in this case should have been 
7 

indicted by a grand jury in order for the State to proceed.” 

But, it said, HRS § 801-1 does not stand alone; the statue must 

be read “in pari materia to other statutes, which the State has 

pointed out, and other constitutional provisions and other rules 

that are promulgated by our Supreme Court, which, pursuant to 

HRS [§] 602-11, do have the force and effect of law.” The court 

concluded that when HRS § 801-1 was read in pari materia with 

the authorities identified by the State, it did not preclude the 

State from using the complaint and preliminary hearing process 

to prosecute Obrero. 

B. Proceedings on Appeal

Obrero took an interlocutory appeal to the ICA. He then 

applied for, and received, transfer to this court.

On appeal, Obrero contends that the circuit court erred by 

applying the in pari materia canon of statutory interpretation.7 

That canon, he contends, applies only where there is something 

doubtful or ambiguous about a statute. Since HRS § 801-1 is 

clear on its face, the application of the in pari materia canon 

in this case doesn’t resolve ambiguity, it creates it. 

 

7 On appeal, Obrero also argues that the charges against him should be 

dismissed with prejudice in order to prevent the possibility of a future 

putative due process injury. Obrero does not claim that his due process 

rights have been violated and has not shown an imminent “distinct and 

palpable” possibility that they will be violated. See Kaho‘ohanohano v. 

State, 114 Hawai‘i 302, 318, 162 P.3d 696, 712 (2007). For these reasons, we 

decline to address Obrero’s due process contentions.
8 

 The State counters that it is a “fundamental tenet” of 

statutory interpretation that “laws in pari materia, or upon the 

same subject matter, shall be construed with reference to each 

other. What is clear in one statute may be called in aid to 

explain what is doubtful in another.” The State observes that 

article I, section 10, HRS §§ 805-7 and 806-8, as well as HRPP 

Rules 5 and 7, all relate to the same topic as HRS § 801-1: the 

methods by which a criminal prosecution may be initiated. So, 

it reasons, HRS § 801-1’s meaning should be triangulated through 

reference to those other authorities. 

The State points out that in 1991 the legislature amended 

HRS §§ 806-6, -7, and -8 to add “complaint” to the disjunctive 

series “information, complaint, or an indictment” and said the 

amendment’s purpose was “to include complaints as a means of 

commencing a criminal prosecution.” See HRS §§ 806-6 (2014), -7 

(2014), and -8 (2014). The legislature described the amendment 

as a “‘housekeeping measure’ to conform certain provisions of 

the [HRS] to what is currently practiced under the [HRPP].” 

House Standing Committee Report Number 1652, in 1991 House 

Journal, at 1437. The State says we should interpret HRS § 801-

1 in light of this legislative history. 
9 

 On appeal, the State also argues that HRS § 801-1 was 

repealed by implication. It points to HRS §§ 602-11,8 805-7,9

and 806-8,10 and HRPP Rules 5 and 7 and argues they “cover the 

field regulating the process, practices, and procedure that 

authorize a person to be held to answer for felony offenses upon 

a finding of probable cause after a preliminary hearing” and 

that HRS § 801-1, therefore, “seems to have been, in part, 

impliedly repealed or amended” such that it cannot be 

interpreted as Obrero contends.

Obrero rejects the State’s repeal-by-implication argument. 

Citing State v. Casugay-Badiang, 130 Hawai‘i 21, 305 P.3d 437 

 

8 See HRS § 602-11 (2016) (“The supreme court shall have power to 

promulgate rules in all civil and criminal cases for all courts relating to 

process, practices, procedure and appeals, which shall have the force and 

effect of law. Such rules shall not abridge, enlarge, or modify the 

substantive rights of any litigant, nor the jurisdiction of any of the 

courts, nor affect any statute of limitations.”). 

9 See HRS § 805-7 (“In all cases of arrest for offenses that must be 

tried in the first instance before a jury, or that can be tried only on 

indictment by a grand jury, the judge in whose jurisdiction or on whose 

warrant the accused was arrested, upon the appearance of the accused, shall 

proceed to consider whether there is probable cause to believe that the 

accused is guilty of the offense with which the accused is charged.”).

10 HRS § 806-8 says:

In criminal cases brought in the first instance in a court 

of record, but in which the accused may be held to answer 

without an indictment by a grand jury, the legal prosecutor 

may arraign and prosecute the accused upon an information, 

complaint, or an indictment at the prosecutor’s election; 

and in all criminal cases brought in the first instance in 

a court of record the prosecutor may arraign and prosecute 

the accused by information, complaint, or indictment, as 

the case may be, whether there has been a previous 

examination, or commitment for trial by a judge, or not.

HRS § 806-8.
10

(2013), he argues that for a statute to be repealed by 

implication it must be “‘plainly irreconcilable’ with some other 

statute or constitutional provision.” Id. at 29, 305 P.3d at 

445. Obrero says the State has not shown that “effect can[not] 

reasonably be given” to both HRS § 801-1 and the constitutional 

and statutory provisions the State contends implicitly repeal 

HRS § 801-1.

III. DISCUSSION

HRS § 801-1 plainly states that the State must secure an 

indictment to subject Obrero to trial and sentencing.11 We agree 

with Obrero that we cannot undo this unambiguous statutory 

requirement with an in pari materia analysis: the in pari 

materia canon is used to resolve statutory ambiguity, not create 

it. 

The only ambiguity in HRS § 801-1 is found in the phrase 

“subject to trial and sentencing.” At what point does a 

criminal defendant become subject to trial and sentencing? We 

hold that a defendant is subject to trial and sentencing at 

arraignment, when they must either plead guilty (and face 

 

11 We review the court’s interpretation of HRS § 801-1 de novo. See Gray 

v. Admin. Dir. of the Court, 84 Hawai‘i 138, 144, 931 P.2d 580, 586 (1997) 

(“The interpretation of a statute is a question of law reviewable de novo.” 

(Cleaned up.)). However, had Obrero challenged the State’s failure to comply 

with HRS § 801-1 for the first time on appeal, we would presume the validity 

of the complaint against him and would not reverse his conviction absent a 

showing that the complaint prejudiced him or could not be construed to charge 

a crime. See State v. Wheeler, 121 Hawai‘i 383, 399, 219 P.3d 1170, 1186 

(2009).
11

sentencing) or plead not guilty (and face trial and potentially 

also sentencing). 

In addition to holding that HRS § 801-1 means what it 

plainly says, we also hold that the statute has not been 

implicitly repealed. HRS § 801-1 is still good law. And the 

State’s prosecution of Obrero is unlawful because it has not 

complied with the statute’s indictment requirement.12

 

12 The unlawfulness of the State’s prosecution did not deprive the circuit 

court of subject-matter jurisdiction. Article VI, section 1 of Hawai‘i’s 

constitution gives the courts “original and appellate jurisdiction as 

provided by law.” And under HRS § 603-21.5(a)(1), the circuit courts have 

jurisdiction over “[c]riminal offenses cognizable under the laws of the 

State, committed within their respective circuits or transferred to them for 

trial by change of venue from some other circuit court.” HRS § 603-

21.5(a)(1) (2016 & Supp. 2021). “Cognizable means ‘capable of being known or 

recognized,’ or ‘capable of being judicially tried or examined before a 

designated tribunal; within the court’s jurisdiction.’” Schwartz v. State, 

136 Hawai‘i 258, 264, 361 P.3d 1161, 1167 (2015) (cleaned up) (quoting Black’s

Law Dictionary 316 (10th ed. 2014)). 

In Schwartz, we held that a complaint properly invoked the subjectmatter jurisdiction of the District Court of the Second Circuit even though 

it failed to allege an element of the crime it charged. We explained that 

the statutory requirements for the district court’s jurisdiction (found in 

HRS §§ 604–8 (2016 & Supp. 2021) and 604–11.5 (2016)) were met because the 

charging document alleged the defendant committed a “‘known’ and recognized” 

statutory offense “punishable by a fine and by imprisonment not exceeding one 

year,” “in Lāhainā, which is within the Second Circuit.” Id. at 264, 361 

P.3d at 1167. Here, a similar analysis informs our conclusion that the 

State’s complaint properly invoked the circuit court’s subject-matter 

jurisdiction. The complaint alleged Obrero violated HRS §§ 705-500, 707-

701(1)(a), 706-656, 707-701.5, and 134-21, all of which are recognized

offenses under the laws of our State. It also alleged Obrero committed these 

offenses “in the City and County of Honolulu,” which is in the First Circuit. 

By charging Obrero with committing “[c]riminal offenses cognizable under the 

laws of the State, committed within [the First Circuit],” the complaint 

satisfied HRS § 603-21.5(a)(1)’s requirements for invoking the Circuit Court 

of the First Circuit’s subject-matter jurisdiction.
12

A. The in pari materia canon is inapplicable because HRS 

§ 801-1 is plain on its face: the State needs an indictment 

to subject Obrero to trial and sentencing

The plain language of HRS § 801-1 leaves little room for 

confusion or doubt about what the State must do if it wants to 

subject Obrero to trial and sentencing: the statute says that if 

the State wants to subject a criminal defendant to trial and 

sentencing for alleged offenses other than contempt or those in 

the jurisdiction of the district court, it must have an 

indictment or information. 

The State has not advanced any “reasonable, competing 

interpretations” of what’s required by the statute. There is 

therefore no ambiguity about what HRS § 801-1 requires the State 

to do before it may “subject Obrero to trial and sentencing.” 

See United States v. Acosta, 363 F.3d 1141, 1155 (11th Cir. 

2004) (“[T]he existence of two reasonable, competing 

interpretations is the very definition of ambiguity.” (internal 

quotation marks omitted)). 

The in pari materia canon of statutory interpretation is a 

useful tool for interpreting ambiguous or doubtful statutes. 

But it should not be used to muddle the meaning of unequivocal, 

but inconvenient, black letter law. Our rule is “What is clear 

in one statute may be called upon in aid to explain what is 

doubtful in another.” Wells Fargo Bank, 142 Hawai‘i at 450, 420 

P.3d at 381 (emphasis added). It is not: “What is clear in one 
13

statute may be called upon to create doubt in another.” As the 

Supreme Court explained in Barnes v. Philadelphia & R.R. Co., 84 

U.S. 294 (1872):

Where a section or clause of a statute is ambiguous, much 

aid, it is admitted, may be derived in ascertaining its 

meaning by comparing the section or clause in question with 

prior statutes in pari materiâ, but it cannot be admitted 

that such a resort is a proper one where the language 

employed by the legislature is plain and free of all 

uncertainty, as the true rule in such a case is to hold 

that the statute speaks its own construction.

Id. at 302. See also United States v. Broncheau, 645 F.3d 676, 

685 (4th Cir. 2011) (“The principle of in pari materia is 

applicable . . . only where the meaning of a statute is 

ambiguous or doubtful.” (cleaned up)); State ex rel. Clay v. 

Cuyahoga Cty. Med. Exam’r’s Office, 94 N.E.3d 498, 503 (Ohio 

2017) (explaining that the in pari materia canon was not 

applicable where the court could not “after reading the statute 

and giving the words the legislature chose their plain and 

ordinary meanings, find that the words of the statute are 

ambiguous”). 

 HRS § 801-1 “speaks its own construction.” And because it 

is unambiguous on its face about what the State must do before 

it may subject a defendant to trial and sentencing, we cannot 

use an in pari materia reading to nullify its plain meaning. 
14

B. A defendant becomes subject to trial and sentencing at 

arraignment

To the extent that there is any ambiguity to be found in 

HRS § 801-1, it is in the phrase “subject to trial and 

sentencing.” “Subject to trial and sentencing” could mean the 

start of trial. But it could also mean some earlier point in 

the criminal prosecution where the specters of adjudication and 

possibly punishment are concrete enough that the defendant is 

“subject to” them. 

 We hold that defendants are subject to “be tried and 

sentenced to be punished” at arraignment. There is no way for a 

defendant to leave an arraignment without being “subject to be 

tried” (if the defendant has pled not guilty) or “subject to be 

sentenced to be punished” (if the defendant has pled guilty). 

Cf. State v. Hernandez, 143 Hawai‘i 501, 513, 431 P.3d 1274, 1286 

(2018) (recognizing that “a guilty plea in itself is a 

conviction” (cleaned up)). By demanding a plea of either 

“guilty” or “not guilty,” the law subjects defendants to be 

either tried or sentenced at arraignment. So under HRS § 801-1, 

the State may initiate a felony prosecution via complaint, but 

it should secure an indictment or information (if applicable) 
15

before arraignment.13,14

C. HRS § 801-1 has not been repealed by implication 

There are only two ways that a law may repeal an earlier 

statute “by implication.” The first is if the two laws are 

plainly irreconcilable; the second is “if the later act covers 

the whole subject of the earlier one and is clearly intended as 

a substitute.” See Gardens at W. Maui Vacation Club v. Cty. of 

Maui, 90 Hawai‘i 334, 341, 978 P.2d 772, 779 (1999) (cleaned up); 

see also Fasi v. City & Cty. of Honolulu, 50 Haw. 277, 285, 439 

P.2d 206, 211 (1968) (explaining that repeal by implication 

occurs when a latter act “is exclusive, that is, when it covers 

the whole subject to which it relates, and is manifestly 

designed by the legislature to embrace the entire law on the 

subject” (emphasis added)). We have never recognized implicit 

repeal by implication absent direct conflict between statutes or 

 

13 Federal cases concerning the use of informations to initiate federal 

felony prosecutions provide support for this approach. Unlike article I, 

section 10, the Fifth Amendment prohibits holding defendants to answer 

without a grand jury indictment. But several courts have held that the 

government may still initiate federal prosecutions — and satisfy statutes of 

limitations — with an information; the Fifth Amendment just means that there 

needs to be a grand jury indictment before the defendant can be required to 

plead or be subjected to trial. See United States v. Burdix-Dana, 149 F.3d 

741, 742 (7th Cir. 1998) (recognizing that “absence of a valid waiver of

prosecution by indictment bars the acceptance of a guilty plea or a trial on

the relevant charges” but also holding that filing of information satisfies 

statute of limitations even where indictment is necessary for further 

prosecution); United States v. Rothenberg, 554 F.Supp.3d 1039, 1041 (N.D. 

Cal. 2021) (concluding that information “tolled the statute of limitations” 

even though defendant had not waived right to grand jury indictment).

14 HRS § 806-7 also dictates that “[e]very indictment shall be duly found 

by a grand jury before the arraignment of the accused.” HRS § 806-7 

(emphasis added).
16

evidence that a statute is “manifestly designed” to “cover the 

field” and displace all other law on a subject. 

Repeal by implication is disfavored. Gardens at W. Maui 

Vacation Club, 90 Hawaiʻi at 340, 978 P.2d at 778.15 And “if 

effect can reasonably be given to two statutes, it is proper to 

presume that the earlier statute is intended to remain in force 

and that the later statute did not repeal it.” State v. 

Pacariem, 67 Haw. 46, 47, 677 P.2d 463, 465 (1984). 

Here, the State has not shown that article I, section 10 or 

any of the other authorities it cites are either “plainly 

irreconcilable” with HRS § 801-1 or manifestly designed by the 

legislature to “cover the field” and embrace the entire law on 

the initiation of felony prosecutions. 

The State is right that HRPP Rules 5 and 7 — which 

authorize the use of the complaint-and-preliminary-hearing 

process to initiate felony prosecutions — flatly contradict HRS 

§ 801-1. But these are rules made by the Supreme Court, not 

laws enacted by the legislature. These rules may have the force 

of law, but they may never “abridge, enlarge, or modify the 

substantive rights of any litigant.” HRS § 602-11. As we 

explained in Cox v. Cox, “[w]here a court-made rule affecting 

 

15 See also Mahiai v. Suwa, 69 Haw. 349, 357, 742 P.2d 359, 366 (1987) 

(“[R]epeal by implication is disfavored.”); Furukawa v. Honolulu Zoological 

Soc’y, 85 Hawai‘i 7, 19, 936 P.2d 643, 655 (1997) (“Repeals by implication are 

disfavored.”).
17

litigants’ substantive rights contravenes the dictates of a 

parallel statute, the rule must give way.” 138 Hawai‘i 476, 482, 

382 P.3d 288, 294 (2016).16,17

None of the constitutional or statutory authorities the 

State cites directly conflict with HRS § 801-1. Not article I, 

 

16 See also Hernandez, 143 Hawai‘i at 510 n.14, 431 P.3d at 1283 n.14 (“It 

is self-evident that while a court rule may provide an exception to another 

court rule, this exception would have no effect upon [a] statutory or 

constitutional right . . . .”).

17 Caselaw interpreting HRS § 602-11 makes clear that a right need not 

come from the constitution to be “substantive.” See In re Doe Children, 94 

Hawai‘i 485, 487, 17 P.3d 217, 219 (2001) (holding that statute setting filing 

deadlines conferred substantive right); Cox v. Cox, 138 Hawai‘i 476, 481, 382 

P.3d 288, 293 (2016) (holding that statute directing the family court to 

consider certain factors in awarding attorney fees conferred substantive 

right). HRS § 801-1 confers a substantive right in being tried only upon a 

determination of probable cause from a group of ordinary citizens who are “at 

arm’s length” from the judiciary and can serve as a “buffer or referee 

between the Government and the people.” See United States v. Williams, 504 

U.S. 36, 47 (1992). 
18

section 10 as amended in 1982.18 Not HRS § 805-719 (last amended 

in 1998). Not HRS § 806-6 or -8 (last amended in 1991).20 In 

fact, HRS §§ 805-7, and 806-8 refer to cases that “can be tried 

 

18 Article I, section 10 places limits on the government’s power to 

subject a criminal defendant to the stigma, uncertainty, and expense of 

criminal prosecution. Cf. Monongahela Navigation Co. v. U.S., 148 U.S. 312, 

325 (1893) (describing the Fifth Amendment as “a series of negations, denials 

of right or power in the government”). Because of article I, section 10, the 

government could not, for example, force someone to plead “guilty” or “not 

guilty” to criminal charges based on the results of a social media poll. But 

the section does not limit the legislature’s ability to place checks on the 

government’s power to prosecute beyond those imposed by the constitution. 

Cf. State v. Maldonado, 108 Hawai‘i 436, 444, 121 P.3d 901, 909 (2005)

(“[W]here the legislature has enacted a valid statute that provides greater 

protection than the constitution, conformance to the statutory mandate, and 

not the lower reasonableness standard set forth by the state or federal 

constitution, is required.”). HRS § 801-1 places restrictions on the 

government’s power to prosecute beyond those found in the constitution. But 

that does not mean it “conflicts” with the constitution. The legislature is 

free to augment or duplicate the rights afforded by the constitution with 

statutory entitlements. And it has done just that with HRS § 801-1. The 

statute reflects clear legislative intent that — in addition to whatever 

constitutional rights they may have under article I, section 10 — certain 

defendants also have a discrete statutory entitlement to face trial and 

sentencing only upon an indictment.

19 HRS § 805-7 identifies the circumstances in which a district court must 

hold probable cause hearings, but nothing in the statute suggests that the 

State may try and sentence a defendant based solely on a district court’s 

probable cause determination. To the contrary, the statute explicitly 

recognizes that there are certain crimes that “can be tried only on 

indictment by a grand jury”: 

In all cases of arrest for offenses that must be tried in 

the first instance before a jury, or that can be tried only 

on indictment by a grand jury, the judge in whose 

jurisdiction or on whose warrant the accused was arrested, 

upon the appearance of the accused, shall proceed to 

consider whether there is probable cause to believe that the 

accused is guilty of the offense with which the accused is 

charged.

HRS § 805-7 (emphasis added). 

20 The HRPP recognize that felonies may be charged with complaints where 

the defendant has waived the right to an indictment. See, e.g. HRPP Rule 

7(b)(3). The references in HRS §§ 806- 6, -7, and -8 to the charging of 

felonies by complaint do not conflict with HRS § 801-1 when they are read as 

referring to felonies charged by complaint pursuant to HRPP Rule 7(b)(3).
19

only on indictment by a grand jury” (HRS § 805-7) or “in which 

the accused may be held to answer without an indictment by a 

grand jury” (HRS § 806-8). HRS § 806-8 is even titled 

“[p]rosecution where indictment not essential.” The State does 

not explain how a statute with a title that contemplates the 

possibility that indictments are, in some circumstances, 

essential for prosecution could directly conflict with a statute 

providing that indictments are, in some circumstances, essential 

for prosecution. 

 The State’s claim that article I, section 10, HRS § 805-7, 

or HRS § 806-6 or -8 implicitly repeal HRS § 801-1 by “covering 

the field” is similarly without merit. 

 Article I, section 10 cannot “cover the field” because it 

is manifestly not intended to embrace the entire law on the 

initiation of criminal prosecutions in our state. It is a 

single sentence. It establishes a constitutional floor for 

prosecutions, and “indicates” the general principle that 

defendants should not be prosecuted without a probable cause 

determination from an independent factfinder; but it does not 

“lay[] down rules by means of which those principles may be 

given the force of law.” See DW Aina Le‘a Dev., LLC v. State 

Land Use Comm’n, 148 Hawai‘i 396, 403, 477 P.3d 836, 843 (2020). 

A single sentence is no substitute for the tangle of laws 

that came before it concerning the initiation of felony 
20

prosecutions. The 1982 amendment of article I, section 10, 

then, made the repeal of HRS § 801-1 possible, but did not 

effectuate that repeal by “covering the field” and providing a 

comprehensive new procedural framework for charging felonies 

through the complaint and preliminary hearing process. 

 None of the other one-off statutes the State cites as 

“implicitly repealing” HRS § 801-1 constitute such a framework 

either. These are standalone statutes that deal with piecemeal 

aspects of prosecution. They concern “Commitment; form of 

mittimus” (HRS § 805-7’s title) and oblige the State to furnish 

defendants with a copy of a complaint or indictment before 

arraignment (HRS § 806-6). They do not embrace the entire law 

on the initiation of a felony prosecution. 

HRS § 801-1’s history can be traced to 1869, when the 

Kingdom of Hawai‘i adopted a law requiring grand jury indictments 

for most prosecutions.21 And America’s “[f]ounders thought the 

grand jury so essential to basic liberties that they provided in 

the Fifth Amendment that federal prosecution for serious crimes 

can only be instituted by a presentment or indictment of a Grand 

 

21 The 1869 version of this law enacted in the Hawaiian Kingdom’s penal 

code was nearly identical to HRS § 801-1: it exempted offenses within the 

jurisdiction of a “police court or district justice” from the indictment 

requirement whereas HRS § 801-1 exempts offenses within the “jurisdiction of 

a district court.” Haw. Kingdom Penal Code 1869, Chapter 2 § 2.
21

Jury.” United States v. Calandra, 414 U.S. 338, 343 (1974) 

(cleaned up)). 

The grand jury “infuses our system of justice with a 

democratic ethos because ordinary citizens serve as grand 

jurors.” State v. Vega-Larregui, 248 A.3d 1224, 1239 (N.J. 

2021) (cleaned up)). It “functions as a barrier to reckless or 

unfounded charges.” State v. Kahlbaun, 64 Haw. 197, 203, 638 

P.2d 309, 315 (1981). And it serves as a “shield against 

arbitrary or oppressive action” by ensuring “that serious 

criminal accusations will be brought only upon the considered 

judgment of a representative body of citizens acting under oath 

and under judicial instruction and guidance.” Id. (quoting 

United States v. Mandujano, 425 U.S. 564, 571 (1976)). Put 

plainly, HRS § 801-1 guarantees that the State may only 

prosecute someone for one of Hawai‘i’s most serious offenses if 

it has an indictment from “ordinary citizens” and not just a 

determination of probable cause from a single judge.

If the Legislature wants to strip people of the grand jury 

protections afforded by HRS § 801-1, it is free to do so. It 

may expressly repeal HRS § 801-1. It may pass a law in direct 

conflict with HRS § 801-1. It may develop a new comprehensive 

statutory framework controlling initiation of felony 

prosecutions and indicate that its framework applies “any law to 

the contrary notwithstanding.” See Fasi, 50 Haw. at 285, 439 
22

P.2d at 211 (holding that statute which used the introductory 

clause “[a]ny law to the contrary notwithstanding” was 

“manifest[ly]” designed to “cover the entire field” on its 

topic.) But it cannot undo the substantive right to a grand 

jury indictment conferred by HRS § 801-1 with a “housekeeping 

measure” that sprinkles the word “complaint” throughout a few 

statutes.22

D. The State’s prosecution of Obrero is unlawful under HRS 

§ 801-1 

The felonies Obrero is charged with are not within the 

jurisdiction of the district court and may not be charged by 

information. So under HRS § 801-1, Obrero cannot be arraigned 

on the charges absent a grand jury indictment. Because the 

State’s prosecution of Obrero proceeded beyond arraignment based 

on a complaint and probable cause hearing alone, it is unlawful 

under HRS § 801-1. The charges against Obrero should be 

dismissed without prejudice.23

 

22 Especially not where, as discussed above, those statutes explicitly 

contemplate that some cases may only be tried on an indictment. See, e.g., 

HRS § 806-8 (referring to cases “in which the accused may be held to answer 

without an indictment by a grand jury”).

 

23 This conclusion is justified for the reasons set forth in this opinion. 

But it is hardly the only conclusion that a competent lawyer could arrive at 

after reading HRS § 801-1 and considering other related authorities 

concerning the initiation of felony prosecutions. Some of the sharpest legal 

minds disagree with our holding in this case. See dissent. So our 

conclusion that the plain language of HRS § 801-1 obliged the State to secure 

an indictment before subjecting Obrero to trial and sentencing does not mean 

that a defense lawyer who declined to move for the dismissal of charges for 

failure to comply with HRS § 801-1 fell below the “range of competence 

demanded of attorneys in criminal cases.” See State v. Salavea, 147 Hawai‘i 

564, 576, 465 P.3d 1011, 1023 (2020).
23

IV. CONCLUSION 

The State cannot subject Obrero to trial and sentencing 

without a grand jury indictment. See HRS § 801-1. 

We reverse the circuit court’s denial of Obrero’s motion to 

dismiss and remand this case to the circuit court for 

proceedings consistent with this opinion. 

Thomas M. Otake

for appellant 

Donn Fudo 

for appellee

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson 

/s/ Todd W. Eddins