reglab/statecodes huggingface dataset:
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-201 "Voluntary act" defined. §702-201 Commentary:

§702-201 "Voluntary act" defined.
"Voluntary act" means a bodily movement performed consciously or habitually as the result of the effort or determination of the defendant. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-201
This section defines "voluntary act" in general terms relying chiefly on the characteristic of voluntariness--the effort and determination of the defendant. The Code's formulation is intended to exclude from the category of voluntary action such bodily movements as (a) reflex or convulsions, (b) bodily movements during unconsciousness and sleep, (c) conduct during hypnosis or resulting from hypnotic suggestion, and (d) any other bodily movement that is not a product of the effort and determination of the defendant, either conscious or habitual.
The exclusion of involuntary action from the scope of penal liability must be viewed in the light of the provisions of chapter 704 on physical disease, disorder, and defect which exclude penal responsibility. In that chapter acquittal is conditioned on submission to treatment or commitment tailored to the condition which excludes responsibility. The Code attempts to provide "therapy or ... custodial commitment"[1] for those dangerous individuals who are unable to conform their conduct to the requirements of the law because of some condition which would be difficult to regard as a "mental disease or defect" under orthodox treatment of penal irresponsibility. At the same time, because treatment is flexible and tailored to the condition in question, it does not bear "harshly on the individual whose condition is nonrecurrent."[2]
No prior Hawaii statutory provision dealt with the issue of voluntariness of acts (other than in its relation to duress or mental disease, disorder, or defect), however, a recent case tends to support the position of the Code.3
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§702-201 Commentary:
1. M.P.C., Tentative Draft No. 4, comments at 119 (1955).
2. Id. at 121.
3. See State v. Matsuda, 50 Haw. 128, 432 P.2d 888 (1967).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-202 Voluntary act includes possession. §702-202 Commentary:

§702-202 Voluntary act includes possession.
Possession is a voluntary act if the defendant knowingly procured or received the thing possessed or if the defendant was aware of the defendant's control of it for a sufficient period to have been able to terminate the defendant's possession. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §702-202
Offenses of possession are pervasive in the law, but possession per se is not a bodily movement or an omission, although the course of conduct leading to or continuing possession might include a voluntary act or omission. Therefore, this section makes it explicit that possession is an act, within the meaning of § §702-200 and 201, if the possessor knowingly procured or received the thing possessed or was aware of control thereof for a sufficient period to have been able to terminate possession. The "thing possessed" refers to the physical object per se, knowledge of particular qualities or properties of the physical object possessed is dealt with as a mens rea problem in subsequent sections.
Hawaii law has had many statutes making various kinds of possession illegal.[1] When considered with the previous statutory requirement that penal liability must be based on "doing what the penal law forbids"2 the logical implication of such statutes was that possession is an act within the penal law. This section merely states that position with greater clarity.
Case Notes
For purposes of §134-6(e), "carry" must be analyzed employing a two-pronged analysis: (1) the voluntary act of "carrying" an object is, by way of this section, established when an individual acts knowingly with respect to that conduct; and (2) the requisite state of mind with respect to the circumstances attendant to "carrying" that object, i.e., the object's particular attributes rendering its carrying a criminal offense--the quality of being a firearm--is, by way of §702-204, established by proof of a reckless state of mind. 93 H. 87, 997 P.2d 13 (2000).
For the purposes of §134-7(b), "possession" must be analyzed using a two-pronged analysis: (1) the voluntary act of "possession" of an object "itself" is, by way of this section, satisfied where an individual acts knowingly with respect to his or her conduct; and (2) the requisite state of mind with respect to the attendant circumstances--i.e., the particular qualities of the object that make it illegal to possess it--is, by way of §702-204, satisfied by a reckless state of mind. 93 H. 87, 997 P.2d 13 (2000).
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§702-202 Commentary:
1. E.g., H.R.S. §134-51 (concealed deadly weapon); H.R.S. §134-52 (switchblade knife).
2. H.R.S. §701-1.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-207 Specified state of mind applies to all elements. §702-207 Commentary:

§702-207 Specified state of mind applies to all elements.
When the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense, unless a contrary purpose plainly appears. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-207
This section makes it clear that the specified state of mind requirement applies to all elements of an offense. This resolves a latent ambiguity found in many penal statutes. If, for example, a statute were to make it an offense to intentionally or knowingly break and enter the dwelling of another, it is probably clear that the specified state of mind applies to entering as well as breaking, however it should also be made clear that it applies to the attendant circumstances "dwelling of another."
The phrase "unless a contrary purpose plainly appears" is intended to allow the courts to avoid an improper result when the language of a statute fails to indicate that the specified state of mind applies to less than all elements and legislative history indicates that this was intended.
Prior Hawaii law did not recognize the principle that culpability must be proven as to each element of an offense. This stems in part from the fact that the concept of "elements of an offense" had not been fully explored. A case involving a charge of contributing to the delinquency of a minor stated by way of dictum that culpability with respect to the age of the victim did not have to be proven.1 To the extent that this section modifies the previous law, it merely rejects those few instances where absolute penal liability was imposed indirectly.
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§702-207 Commentary:
1. Territory v. Delos Santos, 42 Haw. 102 (1957).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-208 Substitutes for negligence, recklessness, and knowledge. §702-208 Commentary:

§702-208 Substitutes for negligence, recklessness, and knowledge.
When the law provides that negligence is sufficient to establish an element of an offense, that element also is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly. When the law provides that recklessness is sufficient to establish an element of an offense, that element also is established if, with respect thereto, a person acts intentionally or knowingly. When the law provides that acting knowingly is sufficient to establish an element of an offense, that element also is established if, with respect thereto, a person acts intentionally. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-208
Since intent, knowledge, recklessness, and negligence are in a descending order of culpability, this section establishes that "it is only necessary to articulate the minimal basis of liability for the more serious bases to be implied."1 The proposition is essentially axiomatic.
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§702-208 Commentary:
1. M.P.C., Tentative Draft No. 4, comments at 129 (1955).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-209 Conditional intent.

§702-209 Conditional intent.
When a particular intent is necessary to establish an element of an offense, it is immaterial that such intent was conditional unless the condition negatives the harm or evil sought to be prevented by the law prohibiting the offense. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-209
This section provides that when the law requires that a particular intent is necessary to establish an element of an offense, that intent is established notwithstanding its conditional nature, unless the condition negatives the harm or evil sought to be prevented. The section provides for a common sense result, and the cases in which the condition negatives the harm or evil sought to be prevented will not be many; nevertheless the distinction should be stated.
The section can best be illustrated by example. A person accused of burglary would not be excused because the person intended to steal only if no one else was in the building, whereas a person charged with attempted rape, predicated on a preliminary assault, would be excused of that offense if the person intended to effect sexual intercourse only if the mature victim consented. In the latter case, however, the person would, most likely, be guilty of an assault.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-211 State of mind as determinant of grade or class of a particular offense. §702-211 Commentary:

§702-211 State of mind as determinant of grade or class of a particular offense.
When the grade or class of a particular offense depends on whether it is committed intentionally, knowingly, recklessly, or negligently, its grade or class shall be the lowest for which the determinative state of mind is established with respect to any element of the offense. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-211
In many statutes the grade (felony, misdemeanor, or violation) or class (e.g., class A or class B felony) of an offense turns on whether the defendant acted intentionally, knowingly, recklessly, or negligently. Since a defendant may have differing states of mind with respect to the defendant's conduct, circumstances attendant thereto, and the result of the defendant's conduct, the Code makes it clear that, in those cases where distinctions are drawn on the basis of the defendant's state of mind, the conviction ought to be the lowest for which the determinative state of mind is established with respect to any element of the offense. As it has been put, "it is the lowest common denominator that indicates the quality of the defendant's conduct."1
The law of homicide provides a ready illustration of the application of the above principle. Intentional killing is usually treated as crime of higher class than reckless killing. If a defendant intentionally killed another, recklessly mistaken that the other's conduct threatened the defendant with serious bodily harm or death, the homicide ought to be viewed as reckless killing because that is all that is established with respect to attendant circumstances negativing the defense of self defense.
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§702-211 Commentary:
1. M.P.C., Tentative Draft No. 4, comments at 131 (1955).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-214 Causal relationship between conduct and result. §702-214 Commentary:

§702-214 Causal relationship between conduct and result.
Conduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-214
This section and the following three sections deal with the problem of causation, which is of critical importance in those offenses in which a particular result of conduct is an element. The difficulty of the problem of causation does not lie in making a determination of actual causation, but rather in setting the appropriate standard for determining those instances in which the defendant will not be held liable for the result of the defendant's conduct because the defendant did not intend or contemplate the result or was unaware of the risk that it would obtain. The law has in some cases, under the inarticulate phrase "proximate cause," divorced the result of the defendant's conduct from the conduct because the defendant's state of mind with respect to the result would not allow the just imposition of liability. The four sections commencing here attempt a rational articulation of the factors which ought properly to be considered.
The section states the definition of actual causation. It is commonly called the "but-for" test. Once it is established that the defendant's conduct was the antecedent but for which the prohibited result would not have occurred, consideration of causality in its strict sense is finished and attention must then shift to § §702-215 and 216 which deal with the defendant's culpability with respect to the result. Section 702-217 deals with causation in offenses of absolute liability.
Hawaii law has previously not dealt directly with the problem of causation in the penal law context. However, in a case of murder, where the defendant claimed lack of intent on the basis that the victim was accidently killed when the victim stepped between the defendant and the intended victim, the court held that the defendant's intent was sufficient culpability.1 A more sound rationale for the decision is supplied by §702-215; actual causation of the result having been established, the defendant will not be relieved of liability for an unintended result merely because another person, rather than the intended victim, was injured.
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§702-214 Commentary:
1. Territory v. Alcantara, 24 Haw. 197 (1918).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-216 Reckless or negligent causation; different result from that within the risk.

§702-216 Reckless or negligent causation; different result from that within the risk.
In the following instances, recklessly or negligently causing a particular result shall be deemed to be established even though the actual result caused by the defendant may not have been within the risk of which the defendant was or, in the case of negligence, should have been aware:
(1) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or
(2) The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence or too dependent on another's volitional conduct to have a bearing on the defendant's liability or on the gravity of the defendant's offense. [L 1972, c 9, pt of §1; am L 1973, c 136, §3(a); am L 1975, c 163, §2; gen ch 1993]
COMMENTARY ON §702-216
Much of what has been said in the commentary on § §702-214 and 215 applies with equal force to this section. The only difference is that this section deals with reckless and negligent causation. Here the Code is concerned with results which differ from those within the risk of which the defendant was aware or of which the defendant should have been aware. However, the factors which are to be considered are the same: whether the actual harm is more extensive or serious than the probable result and whether the actual result is too remote or accidental in its occurrence or too dependent on another's volitional conduct. For a fuller discussion, the reader is referred to the commentary on § §702-214 and 215.
SUPPLEMENTAL COMMENTARY ON §702-216
Act 136, Session Laws 1973, amended paragraph (1) by deleting the words "intended or contemplated" which followed the word "harm" and amended paragraph (2) by substituting the phrase "probable result" for the phrase "intended or contemplated result." References to the words "intended or contemplated" were eliminated since they "connote an intentional act on the part of the accused which is inconsistent with 'reckless' or 'negligent' as defined in §702-206." Senate Standing Committee Report No. 858, House Standing Committee Report No. 726.
Act 163, Session Laws 1975, amended this section in order to phrase the propositions in positive rather than negative language. It was felt that this change would make these propositions clearer when included in jury instructions. This amendment was not intended to change the section in substance but only in form. Conference Committee Report No. 19.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-217 Causation in offenses of absolute liability. §702-217 Commentary:

§702-217 Causation in offenses of absolute liability.
When causing a particular result is an element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the defendant's conduct. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-217
The elimination of mens rea or culpability requirements from a penal offense should not make the accused liable for improbable consequences of the accused's conduct. The specter of such liability would be too precarious and capricious to induce an actor to make rational adjustments in the actor's behavior in order to avoid the sanction. The futility of an attempt to impose penal liability for the improbable consequences of conduct has been succinctly expressed by Hart and Honore:
... [S]urely, the elimination of mens rea as... [a requisite for penal] liability does not mean that the accused is to be liable for harm, even if it only occurred through the conjunction of his act with the deliberate act of some independent person or with some quite extraordinary event. The plain man's protest would be that in such cases the accused 'did not do it', even though the harm would not have occurred without what he did.1
This section is not repetitive of §702-216 (dealing with negligent causation). There will undoubtedly be situations where a person will fail to perceive a risk of a probable consequence although the person's failure of perception did not involve a "gross deviation from the standard of care that a law-abiding person would observe in the same situation."
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§702-217 Commentary:
1. Hart & Honore, Causation in the Law 361 (1959).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-219 Ignorance or mistake; reduction in grade and class of the offense. §702-219 Commentary:

§702-219 Ignorance or mistake; reduction in grade and class of the offense.
Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as the defendant supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and class of the offense of which the defendant may be convicted to those of the offense of which the defendant would be guilty had the situation been as the defendant supposed. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §702-219
This section is addressed to a limited problem. A defendant intending to commit a certain offense, may, because of reasonable ignorance or mistake on the defendant's part, engage in conduct which (if the requisite state of mind were present) would be sufficient for conviction of a graver offense. It would not be fair to convict the defendant of the graver offense (unless some reduction in penalty were made to reflect the defendant's actual culpability) and it would not be fair to allow a complete acquittal because the defendant intended some other offense than the one with which the defendant is charged.
The problem may be stated by borrowing an example from the Model Penal Code commentary:
Burglary of a dwelling house may, for example, reasonably be treated as an offense of greater gravity than burglary of a store; and it is not unreasonable to require knowledge that the structure is a dwelling or at least recklessness that such may be the case. If we conceive of a defendant who had every ground to think that it was a store, although it actually was a dwelling, it may not be right to hold him for the graver crime. The doctrine that when one intends a lesser crime he may be convicted of a graver offense committed inadvertently leads to anomalous results if it is generally applied in the penal law....
If the defendant in the circumstances supposed is exculpated of the graver crime, it seems clear, however, that he should not be acquitted.1
The Code, following the suggestion of the Model Penal Code, resolves the dilemma by authorizing conviction for the graver offense while limiting the sentence (the grade and class) to that authorized for the offense which the defendant would have committed had the situation been as the defendant supposed. This limitation reflects the defendant's limited culpability.
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§702-219 Commentary:
1. M.P.C., Tentative Draft No. 4, comments at 137 (1955).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-223 Liability for conduct of another; complicity with respect to the result.

§702-223 Liability for conduct of another; complicity with respect to the result.
When causing a particular result is an element of an offense, an accomplice in the conduct causing the result is an accomplice in the commission of that offense, if the accomplice acts, with respect to that result, with the state of mind that is sufficient for the commission of the offense. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §702-223
This section is intended to make clear that a defendant charged, on the basis of the defendant's complicity in the conduct of another, with causing a particular result will not be allowed to escape accountability for the result because the defendant solicited or aided, etc., a different or more limited result if the defendant had the requisite state of mind with respect to the actual result.
Thus, for example, one who urges a driver to increase the speed of an automobile, disregarding known risks to pedestrians, would stand in the same position as the driver on a charge of reckless homicide and would not be allowed to defend on the ground that one solicited the violation of the traffic law and not the homicide law.
Case Notes
Instruction on law of principals and accomplices was not erroneous. 59 H. 625, 586 P.2d 250 (1978).
Accomplice in commission of robbery. 62 H. 25, 608 P.2d 855 (1980).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-226 Liability for conduct of another; multiple convictions; different degrees. §702-226 Commentary:

§702-226 Liability for conduct of another; multiple convictions; different degrees.
When, pursuant to any section from section 702-221 through section 702-223, two or more persons are liable for an offense which is divided into degrees, each person is guilty of the degree of the offense which is consistent with the person's own state of mind and with the person's own accountability for an aggravating fact or circumstance. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §702-226
This section provides that when, by reason of accountability for conduct, two or more defendants are liable for the same offense, which is divided into degrees, each defendant shall be convicted of the degree which is consistent with the defendant's own state of mind or mental culpability and the defendant's own accountability for aggravating facts and circumstances.
This section is a sorely-needed correction of Hawaii law which has been interpreted to require, in the case of an accomplice, not only that the defendant stand in the same shoes as the person for whose conduct the defendant is accountable, but that the defendant be held to think the same thoughts.1
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§702-226 Commentary:
1. See State v. Shon, 47 Haw. 158, 385 P.2d 830 (1963), interpreting §252-4 R.L.H. (1955), subsequently H.R.S. §704-4.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-229 Definitions relating to corporations and unincorporated associations.

§702-229 Definitions relating to corporations and unincorporated associations.
As used in sections 702-227 and 702-228:
"Agent" means any director, officer, servant, employee or other person authorized to act in behalf of the corporation or association and, in the case of an unincorporated association, a member of such association.
"Corporation" does not include an entity organized as or by a governmental agency for the execution of a governmental program.
"High managerial agent" means an officer of a corporation or an unincorporated association, or, in the case of a partnership, a partner, or any other agent of a corporation or unincorporated association having duties of such responsibility that his conduct may fairly be assumed to represent the policy of the corporation or the unincorporated association. [L 1972, c 9, pt of §1]
Revision Note
Numeric designations deleted and definitions rearranged pursuant to §23G-15.
COMMENTARY ON §702-229
It seems clear that, in dealing with corporate penal liability, government corporations must be exempt. Penal liability in such a case is pointless.
The phrases "agent" and "high managerial agent" are broadly and inclusively defined. Given the wide variety of employment and other agency relationships, the definitions must present criteria which are very general. Further refinement or elaboration should be left to a case-by-case determination.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-232 Military orders.

§702-232 Military orders.
It is an affirmative defense to a penal charge that the defendant, in engaging in the conduct or causing the result alleged, which the defendant did not know to be unlawful, did no more than execute an order of the defendant's superior in the armed services. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §702-232
This section provides an affirmative defense in the narrow case where a defendant engages in conduct because ordered to do so by the defendant's superior in the armed services. The defense obtains only when the defendant did not know the conduct to be unlawful.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-233 Consent; general. §702-233 Commentary:

§702-233 Consent; general.
In any prosecution, the victim's consent to the conduct alleged, or to the result thereof, is a defense if the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-233
This section states the general view that the victim's consent to the defendant's conduct, or to the result of the defendant's conduct, is a defense if it negatives an element of the offense (e.g., consent to sexual intercourse on charge of rape) or precludes the harm or evil sought to be prevented by the law defining the offense (e.g., consent by the victim to allow the defendant to demonstrate a wrestling hold or maneuver upon the victim). It is obvious that this general principle should not be extended to all types of evils or harms and therefore this section is intended to be read in conjunction with §702-234 (consent to bodily injury) and §702-235 (ineffective consent).
Although this general principle has not been previously codified in Hawaii, it has been impliedly recognized.1
Case Notes
Based on the facts and the charged offenses in the case, the alternative theories of absence of consent and ineffective consent did not represent separate crimes; rather, they were alternative means of proving the attendant circumstance element of a single crime. 96 H. 161, 29 P.3d 351 (2001).
In sexual assault case, jury instruction as to ineffective consent prejudicially affected defendant's rights to due process because (1) jury was instructed that it could convict defendant based on the absence of consent under this section or any of the four grounds of ineffective consent under §702-235, (2) there was a reasonable possibility that the verdict was based on at least one of the four grounds of ineffective consent, and (3) there was legally insufficient evidence to support any of the four grounds of ineffective consent presented to the jury. 96 H. 161, 29 P.3d 351 (2001).
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§702-233 Commentary:
1. Territory v. Lee, 29 Haw. 30 (1926) (where a bank teller mistakenly paid out too much money on a check, it was held that the teller's mistake was not "consent" to the taking which would afford a defense to a charge of larceny).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 702. General Principles of Penal Liability › 702-234 Consent to bodily injury. §702-234 Commentary:

§702-234 Consent to bodily injury.
In any prosecution involving conduct which causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:
(1) The conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic event or competitive sport; or
(2) The consent establishes a justification for the conduct under chapter 703. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-234
This section specifies the types of cases in which consent to conduct which threatens or causes physical injury will constitute a defense.
Where the conduct and injury are the reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, the injury to one participant, whether it be deliberate (boxing) or fortuitous (basketball or football), should not import penal liability to the other party.
Subsection (2) permits effective consent when it is given in the context of a situation which would constitute a defense of justification under chapter 703. For example, a parent may intrust the care of a child to another person, thus, under some circumstances, consenting to the use of corporal punishment, which would be sufficient to establish justification for the use of moderate physical force. Again, an adult might submit to certain medical procedures which necessarily entail severe bodily injury.
Consent to bodily harm has not been dealt with in previous Hawaii penal law.1
SUPPLEMENTAL COMMENTARY ON §702-234
Section 234 in the Proposed Draft of the Code provided for a defense, in addition to the above text, where "the bodily injury consented to or threatened by the conduct consented to is not serious." The legislature, in enacting the Code in 1972, rejected this defense. Conference Committee Report No. 2 (1972) stated: "The Committee finds that the law should not permit the defense of consent to have such a broad application... and that the subsection should not permit, by consent, the type of conduct which would result in bodily injury and disruption of our social fabric."
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§702-234 Commentary:
1. But see Burrows v. Hawaiian Trust Co., 49 Haw. 351, 360, 417 P.2d 816, 821 (1966) ("Consent is a defense to assault and battery cases as well as to others, unless consent is against the policy of the law.").
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 703. General Principles of Justification › 703-300 Definitions relating to justification.

§703-300 Definitions relating to justification.
In this chapter, unless a different meaning is plainly required:
"Believes" means reasonably believes.
"Deadly force" means force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm. Intentionally firing a firearm in the direction of another person or in the direction which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's intent is limited to creating an apprehension that the actor will use deadly force if necessary, does not constitute deadly force.
"Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is for the time being a home or place of lodging.
"Force" means any bodily impact, restraint, or confinement, or the threat thereof.
"Unlawful force" means force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or would constitute an offense except for a defense not amounting to a justification to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious or substantial bodily injury. [L 1972, c 9, pt of §1; am L 1986, c 314, §5; gen ch 1993]
Revision Note
Definitions rearranged pursuant to §23G-15.
COMMENTARY ON §703-300
This section provides statutory definitions of terms used repeatedly in this chapter; a discussion of the definitions, when needed or appropriate, is found in the commentary on the section employing the defined terms.
SUPPLEMENTAL COMMENTARY ON §703-300
Chapter 703 provides for a defense based on the legal concept of justification. An extended definition of justification is provided in § §703-302 through 309. In most instances, the critical factor in determining whether an actor's conduct is justified is the actor's state of mind or belief respecting facts and circumstances. The legislature changed §300 of the Proposed Draft by adding the definition of "believes." The definition adopts "the reasonable man standard with respect to justification for the use of force in self-protection, in the protection of property, and in the protection of others. It is your Committee's finding that the requirement that a person's belief be 'reasonable' for these defenses to be available will provide an objective basis by which to gauge whether or not the use of force was justified." Conference Committee Report No. 2 (1972).
Case Notes
Subsection (1) cited: 9 H. App. 115, 826 P.2d 884 (1992).
Substantial evidence of record supported trial court's finding that defendant's use of the knife constituted deadly force. 77 H. 429 (App.), 886 P.2d 766 (1994).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 703. General Principles of Justification › 703-301 Justification a defense; civil remedies unaffected. §703-301 Commentary:

§703-301 Justification a defense; civil remedies unaffected.
(1) In any prosecution for an offense, justification, as defined in sections 703-302 through 703-309, is a defense.
(2) The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action. [L 1972, c 9, pt of §1]
COMMENTARY ON §703-301
This section does not attempt to define the defense of justification. An extended definition is given in the sections which follow. Subsection (1) merely establishes that justification is a defense. This places the burden of producing some credible evidence of the existence of justification on the defendant. If the defendant produces such evidence, or if it appears as part of the prosecution's case, the defendant is entitled to have the defense considered by the jury. The prosecution, however, must prove beyond a reasonable doubt, facts which negative the defense.
Subsection (2) preserves civil remedies for conduct which may give rise to a defense of justification. Civil standards of conduct are higher than we propose for criminal liability. For example, unreasonable conduct on the part of the defendant might suffice for civil liability whereas criminal liability will turn on the defendant's own subjective mental state. It therefore seems desirable explicitly to preserve civil remedies.
Prior Hawaii statutory and case law recognized some of the defenses which the Code unites in this chapter under the defense of justification. Reference to such recognition will be made in the commentary under the sections which follow. There is some language in old Hawaii case law which indicates that the defense of justification is affirmative in nature;1 to the extent that this language would be followed today, the Code represents a change.
Case Notes
Justification is not an affirmative defense and prosecution has burden of disproving it once evidence of justification has been adduced. 60 H. 259, 588 P.2d 438 (1978).
Defendant's claim of justification, in defense against prosecution for terroristic threatening, was established regardless of whether or not defendant used deadly force. 1 H. App. 167, 616 P.2d 229 (1980).
"Choice of evils" defense applies to violations. 9 H. App. 115, 826 P.2d 884 (1992).
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§703-301 Commentary:
1. King v. Bridges, 5 Haw. 467, 472 (1885); Provisional Government v. Caecires, 9 Haw. 522, 533 (1894).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-401 Evidence of physical or mental disease, disorder, or defect admissible when relevant to state of mind. §704-401 Commentary:

§704-401 Evidence of physical or mental disease, disorder, or defect admissible when relevant to state of mind.
Evidence that the defendant was affected by a physical or mental disease, disorder, or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is required to establish an element of the offense. [L 1972, c 9, pt of §1; am L 2006, c 230, §5]
COMMENTARY ON §704-401
This section accords to evidence of physical or mental disease, disorder, or defect its full evidentiary significance. It assures "admissibility [of such evidence] co-extensive with its relevancy to prove or disprove a material state of mind."[1] While some jurisdictions have refused to admit medical evidence of the defendant's mental state other than on the issue of the complete foreclosure of defendant's responsibility, this all-or-nothing approach is totally inconsistent with the concept which accords certain states of mind legal significance. Any evidence relevant to prove or disprove the requisite state of mind ought to be admissible.
In its most recent case in this area, Hawaii has adopted the approach taken in this section. In a case involving a charge of murder (which under the previous definition requires malice, premeditation, and deliberation), where the defendant had raised the issues of "insanity" and lack of "malice", evidence of a defendant's mental disease, disorder, or defect was held to be admissible on the issue of the defendant's ability to harbor malice, even if the defendant was considered "sane" and responsible.[2] Furthermore, the defendant was entitled to have the jury specifically instructed on this point.3
SUPPLEMENTAL COMMENTARY ON §704-401
Act 230, Session Laws 2006, amended this section by making technical nonsubstantive amendments.
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§704-401 Commentary:
1. M.P.C., Tentative Draft No. 4, comments at 193 (1955).
2. State v. Moeller, 50 Haw. 110, 433 P.2d 136 (1967).
3. Id.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-403 Physical or mental disease, disorder, or defect excluding fitness to proceed. §704-403 Commentary:

§704-403 Physical or mental disease, disorder, or defect excluding fitness to proceed.
No person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against the person or to assist in the person's own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §704-403
The section sets forth the universally accepted position in Anglo-American law that a defendant cannot be proceeded against (with the exception of being charged) unless the defendant has the capacity to understand the proceedings against the defendant and assist in the defendant's own defense. The Code deliberately avoids terms such as "the then present insanity"[1] and focuses on those factors which call for a suspension of the proceedings: (1) lack of capacity to understand the proceedings, or (2) lack of capacity to assist in the defense.
Previous Hawaii law is substantially in accord with this section except that the statutory language used vague, unfocused phrases such as "the then present insanity or mental irresponsibility of the accused," and "the then existing... mental irresponsibility."[2] However, in actual application the trial courts have focused on the capacity of the defendant to understand the proceedings and to assist in the defense.3
Law Journals and Reviews
Fitness to Proceed: Compassion or Prejudice? II HBJ, no. 13, at 135 (1998).
Case Notes
Facts did not support a finding that petitioner was mentally incompetent at relevant times. 79 H. 118 (App.), 899 P.2d 401 (1995).
Cited: 60 H. 17, 586 P.2d 1028 (1978); 134 H. 308, 340 P.3d 440 (2014).
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§704-403 Commentary:
1. See H.R.S. § §711-91 and 711-92.
2. Id.
3. See State v. Wong, 47 Haw. 361, 365, 389 P.2d 439, 442 (1964).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-405 Determination of fitness to proceed. §704-405 Commentary:

§704-405 Determination of fitness to proceed.
When the defendant's fitness to proceed is drawn in question, the issue shall be determined by the court. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed pursuant to section 704-404, the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. When the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to summon and to cross-examine the persons who joined in the report or assisted in the examination and to offer evidence upon the issue. [L 1972, c 9, pt of §1]
COMMENTARY ON §704-405
This section departs from the prior law[1] and provides that the issue of the defendant's fitness to proceed will be determined solely by the court. In this the Code follows the Model Penal Code.[2] The fitness of the defendant to proceed is only tangentially related to the defendant's condition at the time of the conduct alleged and the defendant's responsibility for that conduct. Moreover, there might be several periodic hearings on the question of the defendant's fitness to be proceeded against. It seems unwise to afford the defendant a jury determination in each instance.
The Code also allows the court to make a determination of fitness to proceed on the basis of an uncontested report; which is in accord with prior law in felony cases.3 The last sentence of this section allows a limited exception to the hearsay rule so that the report of an examining expert may be received in evidence without the necessity of calling the expert to the stand. The exception is not inconsistent with the purpose of the hearsay rule because the defendant is assured of the right to summon and to cross-examine the reporting examiner if the defendant wishes.
Law Journals and Reviews
Fitness to Proceed: Compassion or Prejudice? II HBJ, no. 13, at 135 (1998).
Case Notes
Consideration of the sanity commission report is permissible use of hearsay. 63 H. 186, 623 P.2d 881 (1981).
Where defendant's counsel declined to call and cross-examine the doctors who prepared the sanity report, counsel waived defendant's right of confrontation. 63 H. 186, 623 P.2d 881 (1981).
Cited: 60 H. 17, 586 P.2d 1028 (1978).
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§704-405 Commentary:
1. H.R.S. §711-91.
2. M.P.C. §4.06.
3. See H.R.S. §711-91, which reads in part: "If the court deems such report conclusive of the then present insanity... of the accused, the court may allow a nolle prosequi to be entered in the case, and in such case shall forthwith, without other or further proceedings, adjudge the accused to be insane and commit him to the state hospital until discharged as provided by law...."
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-409 Access to defendant by examiners of defendant's choice.

§704-409 Access to defendant by examiners of defendant's choice.
When, notwithstanding the report filed pursuant to section 704-404, the defendant wishes to be examined by one or more qualified physicians or other experts of the defendant's own choice, such examiner or examiners shall be permitted to have reasonable access to the defendant for the purposes of such examination. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §704-409
The section makes it clear that a defendant in custody pending determination of the defendant's fitness to proceed or the defendant's penal responsibility shall be entitled to examination by medical experts of the defendant's own choice notwithstanding rules or regulations of the prison or hospital or other facility in which the defendant is held. Final determination of the question of reasonable access should reside with the court and not with the warden or hospital administrator.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-410.5 Conditional release; duration limited in nonfelony cases.

§704-410.5 Conditional release; duration limited in nonfelony cases.
For any defendant granted conditional release in a nonfelony case pursuant to section 704-411(1)(b), 704-412, 704-414, or 704-415, the period of conditional release shall not exceed one year. [L 2016, c 231, pt of §3]
COMMENTARY ON §704-410.5
Act 231, Session Laws 2016, added this section to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-416.5 Supervision of person on conditional release.

§704-416.5 Supervision of person on conditional release.
(1) Any person hospitalized under this chapter who is subsequently placed on conditional release shall be subject to the supervision of a probation officer until such time as that supervision is terminated by order of the court.
(2) The probation officer shall report, as the court may order, whether the conditionally released person is complying with the conditions of the release. [L 1983, c 69, §1; am L 2006, c 230, §15]
COMMENTARY ON §704-416.5
Act 69, Session Laws 1983, added this section to this chapter so that a defendant who is acquitted and committed pursuant to this chapter shall be supervised by the adult probation division upon that person's conditional release. The legislature felt that supervision is necessary for the safety and welfare of the individual as well as the community. Senate Standing Committee Report No. 719, House Standing Committee Report No. 506.
Act 230, Session Laws 2006, made technical nonsubstantive amendments to this section.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-417 Use of out-of-state institutions.

§704-417 Use of out-of-state institutions.
The term "appropriate institution" includes any institution within or without this State to which the defendant may be eligible for admission and treatment for physical or mental disease, disorder, or defect. [L 1972, c 9, pt of §1]
COMMENTARY ON §704-417
This section is intended to permit the court (acting through the director of health) or the director of health to utilize institutions outside the jurisdiction of the State.
2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-420 Examination reports; provided to director of health.

§704-420 Examination reports; provided to director of health.
Copies of all examination reports made pursuant to sections 704-404, 704-406, 704-411, and 704-414 shall be provided to the director of health. [L 2016, c 231, pt of §3]
COMMENTARY ON §704-420
Act 231, Session Laws 2016, added this section to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).