reglab/statecodes huggingface dataset:
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-30 Alternative allegations.

§806-30 Alternative allegations.
In an indictment for an offense which is constituted of one or more of several acts or which may be committed by one or more of several means or with one or more of several intents, or which may produce one or more of several results, two or more of those acts, means, intents, or results may be charged in the alternative. [L 1915, c 215, pt of §2; RL 1925, §4043; RL 1935, §5502; RL 1945, §10804; RL 1955, §258-14; HRS §711-30; ren L 1972, c 9, pt of §1]
Case Notes
In robbery, the terms "from the person" and "from the custody and in the presence" are synonymous and may be alleged in alternative in an indictment. 26 H. 725 (1923).
Indictment alleging four alternative non-synonymous subjects for inquiry is defective for uncertainty. 37 H. 552 (1947).
Indictment alleging several acts in the alternative not duplicitous. 39 H. 574 (1952).
Cited: 27 H. 65 (1923), 102; 36 H. 550, 552 (1943), aff'd 150 F.2d 545 (1945).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-31 Indirect allegations.

§806-31 Indirect allegations.
No indictment or bill of particulars is invalid or insufficient for the reason merely that it alleges indirectly and by inference instead of directly any matters, facts, or circumstances connected with or constituting the offense, provided that the nature and cause of the accusation can be understood by a person of common understanding. [L 1915, c 215, pt of §2; RL 1925, §4044; RL 1935, §5503; RL 1945, §10805; RL 1955, §258-15; HRS §711-31; ren L 1972, c 9, pt of §1]
Case Notes
Allegation that accused gave bribe to officer with intent to influence officer in discharge of duty, alleges by inference that accused had knowledge of official character of officer and is sufficient. 23 H. 616, 618 (1917); 25 H. 747 (1921).
Leading, conducting, driving a person to place where prostitution is being carried on. 37 H. 586 (1947).
Nature and cause of accusation could not be understood by person of common understanding from a reading of the complaint itself, where generic term "felony" did not, indirectly or by inference, inform defendant that underlying felony was terroristic threatening in first degree. 78 H. 66, 890 P.2d 303 (1995).
Cited: 23 H. 476 (1916), 484, explained 49 H. 160, 185, 413 P.2d 221 (1966); 23 H. 546 (1916), 549.
Referred to: 43 H. 54 (1958), 58.
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-32 Repugnancy.

§806-32 Repugnancy.
No indictment is invalid by reason of any repugnant allegation contained therein, provided that an offense is indicated under section 806-34. [L 1915, c 215, pt of §2; RL 1925, §4045; RL 1935, §5504; RL 1945, §10806; RL 1955, §258-16; HRS §711-32; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-33 Surplusage.

§806-33 Surplusage.
Any unnecessary allegation contained in an indictment may be rejected as surplusage. [L 1915, c 215, pt of §2; RL 1925, §4046; RL 1935, §5505; RL 1945, §10807; RL 1955, §258-17; HRS §711-33; ren L 1972, c 9, pt of §1]
Rules of Court
Surplusage, see HRPP rule 7(e).
Case Notes
Giving a wrong name to the offense charged does not vitiate the charge, it being regarded as surplusage. 11 H. 143 (1897).
Cited: 36 H. 550, 552 (1943), aff'd 150 F.2d 545 (1945).
See 33 H. 686 (1936).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-34 Sufficiency of averments as to offense and transaction.

§806-34 Sufficiency of averments as to offense and transaction.
In an indictment the offense may be charged either by name or by reference to the statute defining or making it punishable; and the transaction may be stated with so much detail of time, place, and circumstances and such particulars as to the person (if any) against whom, and the thing (if any) in respect to which the offense was committed, as are necessary to identify the transaction, to bring it within the statutory definition of the offense charged, to show that the court has jurisdiction, and to give the accused reasonable notice of the facts.
Averments which so charge the offense and the transaction shall be held to be sufficient. [L 1915, c 215, pt of §2; RL 1925, §4048; RL 1935, §5507; RL 1945, §10809; RL 1955, §258-19; HRS §711-34; ren L 1972, c 9, pt of §1]
Rules of Court
Nature and contents of indictment, see HRPP rule 7(d).
Case Notes
Indictment gives reasonable notice to defendant of nature of offense and is not bad for absence of further particulars. 43 H. 54 (1958).
Applied in holding an indictment for forgery under §708-852 to be sufficient. 55 H. 621, 525 P.2d 571 (1974).
Counts in indictment must be dismissed where defendant could not be principal and counts did not allege defendant was accomplice or cite accomplice statute. 67 H. 398, 688 P.2d 1152 (1984).
Cited: 37 H. 625, 643 (1947).
See 33 H. 180 (1934); 34 H. 209 (1937).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-35 Property owned by more than one.

§806-35 Property owned by more than one.
In any indictment wherein it is requisite to state the ownership of any property whatsoever, whether real or personal, which belongs to or is in the possession of more than one person, whether the persons be partners in trade, joint tenants, parceners, or tenants in common, it shall be sufficient to name one of the persons and to state the property to belong to the person so named, and another or others, as the case may be. Whenever in any indictment it is necessary to mention for any purpose whatsoever any partners, joint tenants, parceners, or tenants in common, it shall be sufficient to describe them in the manner aforesaid. This provision shall be construed to extend to all joint stock companies and trustees. [L 1876, c 40, §16; RL 1925, §4050; RL 1935, §5509; RL 1945, §10811; RL 1955, §258-21; HRS §711-35; ren L 1972, c 9, pt of §1]
Case Notes
Does not set out the only sufficient method of stating ownership by partnership. 45 H. 622, 372 P.2d 365 (1962).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-36 Property owned by corporation.

§806-36 Property owned by corporation.
All property, real and personal, whereof any body corporate shall by law have the management, control, or custody, shall, for the purpose of any indictment or proceeding against any other person for any offense committed on or in respect thereof, be deemed to be the property of the body corporate. [L 1876, c 40, §17; RL 1925, §4051; RL 1935, §5510; RL 1945, §10812; RL 1955, §258-22; HRS §711-36; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-37 Money, etc., how described.

§806-37 Money, etc., how described.
In every indictment whatsoever in which it is necessary to make any averment as to any money or valuable security, and in every indictment for embezzlement, fraudulent application, or fraudulent disposition where the offense relates to any valuable security, it shall be sufficient to describe the money or valuable security simply as money, without specifying any particular coin or valuable security. And the allegation so far as regards the description of the property, shall in all cases be sustained by proof of any amount of coin, and in the cases of the offenses hereinbefore in this section specially named of any valuable security, although the particular species of coin of which the amount was composed or the particular nature of the valuable security is not proved, and in the cases of the offenses so specially named and also in the case of obtaining money or other property by false pretenses, by proof that the offender embezzled, fraudulently applied or disposed of any amount or obtained any piece of coin or any valuable security or any portion of the value thereof respectively, although the piece of coin or valuable security (as the case may be) may have been delivered to the offender in order that some part of the value thereof should be returned to the party delivering the same or to any other person, and the part has been returned accordingly. [L 1876, c 40, §21; RL 1925, §4054; RL 1935, §5511; RL 1945, §10813; RL 1955, §258-23; HRS §711-37; ren L 1972, c 9, pt of §1; gen ch 1985]
Case Notes
Cited: 24 H. 349, 352 (1918).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-38 Instrument, how described.

§806-38 Instrument, how described.
In any indictment for forging, altering, offering, uttering, disposing of, or for stealing, embezzling, extorting, converting, disposing of, destroying, or concealing, or for obtaining by false pretenses any instrument, it shall be sufficient to describe the instrument by any name or designation by which the same may be usually known or by the purport thereof, without setting out any copy or facsimile thereof or otherwise describing the same or the value thereof. [L 1876, c 40, §29; RL 1925, §4055; RL 1935, §5512; RL 1945, §10814; RL 1955, §258-24; HRS §711-38; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-39 Same.

§806-39 Same.
In all other cases whenever it is necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print, or figures, it shall be sufficient to describe the instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof. [L 1876, c 40, §30; RL 1925, §4056; RL 1935, §5513; RL 1945, §10815; RL 1955, §258-25; HRS §711-39; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-40 Document of title.

§806-40 Document of title.
In any indictment for stealing or for any fraudulent purpose, destroying, canceling, obliterating, or concealing the whole or any part of any document of title to lands, it shall be sufficient to allege the document to be or to contain evidence of the title or of part of the title of the person or of some one of the persons having an interest whether vested or contingent, legal or equitable, in the real estate to which the same relates, and to mention the real estate or some part thereof. [L 1876, c 40, §23; RL 1925, §4059; RL 1935, §5514; RL 1945, §10816; RL 1955, §258-26; HRS §711-40; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-41 Ownership, not necessary to allege when.

§806-41 Ownership, not necessary to allege when.
In any indictment for any of the following offenses it shall not be necessary to allege that the instrument, document, article, or thing in respect of which the offense is committed is the property of any person: the offense of stealing any testamentary instrument; the offense of stealing any original document of any court; the offense of stealing or of ripping, cutting, severing, or breaking with intent to steal anything made of metal fixed in any square or street, or in any place dedicated to public use or ornament. [L 1876, c 40, §24; RL 1925, §4060; RL 1935, §5515; RL 1945, §10817; RL 1955, §258-27; HRS §711-41; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-42 Second offense.

§806-42 Second offense.
In any indictment for any offense committed after a previous conviction or convictions for any felony or misdemeanor, it shall be sufficient after charging the subsequent offense to state that the offender was at a certain time and place, or at certain times and places, convicted of felony or misdemeanor, and to state the substance and effect only, omitting the formal part of the indictment and conviction for the previous offense, without otherwise describing the previous offense or offenses. [L 1876, c 40, §20; RL 1925, §4065; RL 1935, §5516; RL 1945, §10818; RL 1955, §258-28; HRS §711-42; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-46 Objections to indictment.

§806-46 Objections to indictment.
Every objection to any indictment for any defect apparent on the face thereof, shall be taken by demurrer or motion to quash the indictment before the accused has pleaded and not afterwards; and every court before which any such objection is taken for the defect may, if it is thought necessary, cause the indictment to be forthwith amended in that particular by some officer of the court or other person, and thereupon the trial shall proceed as if no defect had appeared; and no motion in arrest of judgment shall be allowed for any defect in any indictment which might have been taken advantage of by demurrer or motion to quash as aforesaid. [L 1876, c 40, §33; RL 1925, §4068; RL 1935, §5517; RL 1945, §10819; RL 1955, §258-29; HRS §711-46; ren L 1972, c 9, pt of §1]
Cross References
See Const. art. I, § §10, 14.
Rules of Court
Pleadings and motions before trial; defenses and objections, see HRPP rule 12.
Amendment of chaarge, see HRPP rule 7(f).
Arrest of judgment, see HRPP rule 34.
Case Notes
Objections to sufficiency of charge should be made before pleading even in district court. 11 H. 435 (1898).
Defects in indictment apparent on face are waived by plea made. 22 H. 526, 530 (1915); 37 H. 586 (1947); 39 H. 568 (1952); 40 H. 208 (1953).
Defect in indictment. 37 H. 552 (1947).
Applies to complaints. 39 H. 568 (1952).
The following cases prior to annexation: Amendment of indictment allowed. 8 H. 274 (1891); 9 H. 257, 262 (1893).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-47 Bill of particulars.

§806-47 Bill of particulars.
If the court is of the opinion that the accused in any criminal case has been actually misled and prejudiced in the accused's defense upon the merits of any defect, imperfection, or omission in the indictment, insufficient to warrant the quashing of the indictment, or by any variance, not fatal, between the allegations and the proof, the prosecuting officer shall, when so ordered by the court, acting upon its own motion or upon motion of the prosecution or defendant, file in court and serve upon the defendant, upon such terms as the court imposes, a bill of particulars of the matters in regard to which the court finds that the defendant should be informed.
In determining whether further information, and if so what information, is desirable for the defense of the accused upon the merits of the case, the court shall consider the whole record of the case and the entire course of the proceedings against the accused. [L 1915, c 167, §1; RL 1925, §4023; RL 1935, §5353; RL 1945, §10820; RL 1955, §258-30; HRS §711-47; ren L 1972, c 9, pt of §1; gen ch 1985]
Rules of Court
Bill of particulars, see HRPP rule 7(g).
Case Notes
Cannot cure a defective charge. 41 H. 591 (1957).
Where, in accordance with this section, the family court considered the whole record of the case and the entire course of the proceedings against defendant and found that a bill of particulars was unnecessary because defendant was not actually misled or prejudiced as to the charges against defendant, and the court denied defendant's motion to dismiss or for bill of particulars on that basis, the court did not abuse its discretion. 121 H. 451, 220 P.3d 1032 (2009).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-48 Postponement.

§806-48 Postponement.
No person prosecuted shall be entitled as of right to traverse or postpone the trial of any indictment preferred against the person, or to have time to plead or demur to the indictment allowed the person; provided always that if the court before which any person is indicted upon the application of the person or otherwise, is of opinion that the person ought to be allowed a further time to plead, or demur, or to prepare for the person's defense, or otherwise, the court may grant further time to plead, or demur, or may adjourn the receiving or taking of the plea, or demurrer, and the trial (or as the case may be) of the person to the next or any subsequent term of the court, and upon such terms as to bail or otherwise as to the court shall seem meet. [L 1876, c 40, §34; RL 1925, §4069; RL 1935, §5518; RL 1945, §10821; RL 1955, §258-31; HRS §711-48; ren L 1972, c 9, pt of §1; gen ch 1985]
Rules of Court
Time; enlargement, see HRPP rule 45(b).
Motion in lieu of demurrer, see HRPP rule 12(a).
Case Notes
See 3 H. 90 (1869); 33 H. 113 (1934); 40 H. 79 (1953), aff'd 210 F.2d 552 (1954).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-49 Arraignment; plea of not guilty.

§806-49 Arraignment; plea of not guilty.
If any person being arraigned upon any indictment for any offense pleads thereto a plea of "not guilty", the person shall by that plea without any further form, be deemed to have put oneself upon the country for trial, and the court shall in the usual manner order a jury for the trial of the person accordingly. [L 1876, c 40, §36; RL 1925, §4070; RL 1935, §5519; RL 1945, §10822; RL 1955, §258-32; HRS §711-49; ren L 1972, c 9, pt of §1; gen ch 1985]
Rules of Court
Arraignment in circuit court, see HRPP rule 10.
Pleas, see HRPP rule 11.
Case Notes
Plea cures defect in indictment for purpose of trying issue. 5 H. 621 (1886).
Plea of guilty entered before court having jurisdiction of the offense cannot be retracted in appellate court. 8 H. 273 (1891).
Application to withdraw plea of "guilty" and enter "not guilty" is within sound discretion of court. 20 H. 103 (1910); 23 H. 636, 638 (1917).
Plea raises issue of sanity. 37 H. 463 (1947).
Defendant who alleges that defendant pleaded guilty because of a prior coerced confession is not, without more, entitled to hearing on petition for habeas corpus. 53 H. 274, 492 P.2d 953 (1972).
It is within discretion of trial court to permit withdrawal of a guilty plea. 57 H. 46, 549 P.2d 727 (1976).
Defendant does not have an absolute right to withdraw defendant's guilty plea. 58 H. 574, 574 P.2d 521 (1978).
Requirements of acceptance of guilty plea. 59 H. 592, 585 P.2d 1259 (1978).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-50 Standing mute.

§806-50 Standing mute.
If any person being arraigned upon or charged with any offense, stands mute of malice, or will not answer directly to the indictment, the court (if it shall so think fit) may order the proper officer to enter a plea of "not guilty" on behalf of that person, and the plea so entered shall have the same force and effect as if the person had actually pleaded the same. [L 1876, c 40, §37; RL 1925, §4071; RL 1935, §5520; RL 1945, §10823; RL 1955, §258-33; HRS §711-50; ren L 1972, c 9, pt of §1]
Rules of Court
Pleas, see HRPP rule 11.
Case Notes
Proper for court to enter plea of not guilty. 9 H. 181, 187 (1893); 9 H. 641, 653 (1895); 13 H. 413, 419 (1901).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-51 Plea of autrefois convict or acquit.

§806-51 Plea of autrefois convict or acquit.
In any plea of autrefois convict or autrefois acquit, it shall be sufficient for the defendant to state that the defendant has been lawfully convicted or acquitted (as the case may be) of the offense charged in the indictment. [L 1876, c 40, §40; RL 1925, §4072; RL 1935, §5521; RL 1945, §10824; RL 1955, §258-34; HRS §711-51; ren L 1972, c 9, pt of §1; gen ch 1985]
Rules of Court
Pleadings and motions before trial, see HRPP rule 12(a).
Case Notes
Where accused by accused's own action has obtained reversal of whole judgment, new trial may be had against accused as if no trial had previously taken place. 25 H. 581 (1920).
Cited: 27 H. 270, 271 (1923).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-56 Nolle prosequi.

§806-56 Nolle prosequi.
No nolle prosequi shall be entered in a criminal case in a court of record except by consent of the court upon written motion of the prosecuting attorney stating the reasons therefor. The court may deny the motion if it deems the reasons insufficient and if, upon further investigation, it decides that the prosecution should continue, it may, if in its opinion the interests of justice require it, appoint a special prosecutor to conduct the case and allow the special prosecutor a fee. Section 802-5(b) relative to fees allowed counsel assigned by the court for a defendant is made applicable to fees of special prosecutors appointed hereunder. [L 1876, c 40, §5; am L 1903, c 39, §6; RL 1925, §4029; am L 1931, c 73, §1; RL 1935, §5525; RL 1945, §10830; RL 1955, §258-40; HRS §711-56; ren L 1972, c 9, pt of §1; gen ch 1985; am L 1987, c 283, §67]
Rules of Court
Dismissal by prosecutor, see HRPP rule 48(a).
Case Notes
A nolle prosequi of an appeal from a magistrate before trial is no bar to a subsequent trial. 3 H. 339 (1872).
For historical background: 6 H. 718 (1889).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-60 Jury of twelve required.

§806-60 Jury of twelve required.
Any defendant charged with a serious crime shall have the right to trial by a jury of twelve members. "Serious crime" means any crime for which the defendant may be imprisoned for six months or more. [L 1979, c 89, §2]
Cross References
See Const. art. I, §14.
Rules of Court
Jury of less than twelve, see HRPP rule 23(b).
Attorney General Opinions
Proposed amendment to section did not require constitutional amendment because jury comprised of six members in cases involving non-serious crimes tracked language of §14 of article I of the state constitution; however, definition of "serious crimes" as exclusively crimes for which the defendant faces possibility of imprisonment of at least six months, was inconsistent with the principle that crimes that do not carry the possibility of this specific term of imprisonment may nonetheless constitute "serious crimes" which trigger constitutional right to jury trial. Att. Gen. Op. 97-2.
Case Notes
Where the misdemeanor offense charged against defendant of assault in the third degree under §707-712 was not amended to a petty misdemeanor, and defendant had demanded defendant €™s right to a jury trial pursuant to this section prior to leaving the courtroom, the district court lacked jurisdiction to proceed to trial; defendant €™s conviction for third degree assault in the course of a mutual affray thus vacated and remanded for a new trial. 128 H. 479, 291 P.3d 377 (2013).
Family court failed to ensure that defendant's waiver of defendant's right to a jury trial was voluntary, where defendant failed to sign defendant's initials next to the paragraph addressing voluntariness on the written waiver form and none of the family court's questions were directed towards determining the voluntariness of defendant's waiver. 132 H. 1, 319 P.3d 1009 (2014).
Discussed: 76 H. 360, 878 P.2d 699 (1994).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-61 Waiver of jury.

§806-61 Waiver of jury.
The defendant in any criminal case may, with the consent of the court, waive the right to a trial by jury either by written consent filed in court or by oral consent in open court entered on the minutes. Any case in which a trial by jury is waived may be tried by the court without a jury both as to the facts and the law, and when the trial has been had there shall be no further trial upon the facts, except upon the granting of a new trial according to law. [L 1903, c 9, §1; RL 1925, §4028; am L 1931, c 36, §1; RL 1935, §5524; RL 1945, §10825; RL 1955, §258-35; am L 1957, c 282, §10; HRS §711-61; ren L 1972, c 9, pt of §1]
Rules of Court
Waiver of trial by jury, see HRPP rule 23(a).
Case Notes
Facts insufficient to constitute waiver. 38 H. 178 (1948).
Method of waiver exclusive and requires substantial compliance. 39 H. 613 (1952).
Referred to in holding that court has summary jurisdiction over "petty" offenses not constitutionally required to be tried by jury. 51 H. 612, 466 P.2d 422 (1970).
Cited: 82 F. Supp. 65, 83 (1948), 20 H. 71, 95 (1910); 33 H. 113, 125 (1934).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-62 Trial; order of proof and argument.

§806-62 Trial; order of proof and argument.
The prosecuting attorney shall open the case, and first introduce his witnesses and proofs, and after the evidence for the defense has been presented, and the accused or his counsel has summed up and closed his case, the prosecuting attorney may conclude the argument, and in his conclusion shall confine himself to answering any new matter or arguments presented by the defendant or his attorney. [L 1876, c 40, §45; am imp L 1907, c 37, §1; RL 1925, §4025; RL 1935, §5526; RL 1945, §10831; RL 1955, §258-41; HRS §711-62; ren L 1972, c 9, pt of §1]
Cross References
Evidence, generally, see chapters 621 and 626.
Order of proof, argument, see §635-52.
Rules of Court
Testimony, see HRPP rule 26.
Expert witnesses, see HRPP rule 28.
Instructions to jury, see HRPP rule 30.
Motion for judgment of acquittal, see HRPP rule 29.
Case Notes
Prosecution rather than defendant may close the argument. 9 H. 288 (1893).
Opening statement. 31 H. 81 (1929); 32 H. 528 (1932).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-63 Defense.

§806-63 Defense.
All persons tried for any offense shall be admitted after the close of the case for the prosecution to make full answer and defense thereto by counsel or attorney. [L 1876, c 40, §46; RL 1925, §4026; RL 1935, §5527; RL 1945, §10832; RL 1955, §258-42; HRS §711-63; ren L 1972, c 9, pt of §1]
Cross References
See §801-2 and notes.
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-65 Depositions, right to inspect.

§806-65 Depositions, right to inspect.
All persons under trial shall be entitled at the time of their trial to inspect without fee or reward all depositions, or copies of the depositions, which have been taken against them, and delivered in manner by law required to the proper officer of the court before which the trial is had. [L 1876, c 40, §63; RL 1925, §4076; RL 1935, §5530; RL 1945, §10836; RL 1955, §258-46; HRS §711-67; ren L 1972, c 9, pt of §1]
Cross References
See Const. art. I, §14.
Rules of Court
Depositions, see HRPP rule 15.
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-71 Sentence.

§806-71 Sentence.
Except as otherwise provided by law, in all criminal cases, the court or judge before which or whom the conviction is had shall proceed as soon thereafter as may be to pass sentence according to law, which sentence shall be recorded by the clerk, or by the judge if there is no clerk, and certified to the sheriff, superintendent of Hawaii state prison, or other appropriate officer for imprisonment or other punishment, as the case may be; provided that any person convicted of a felony and sentenced to imprisonment in Hawaii state prison shall be delivered, together with the certificate of the person's sentence, to the superintendent of Hawaii state prison at Honolulu. [L 1876, c 40, §73; am L 1903, c 39, §13; RL 1925, §4093; am imp L 1932 1st, c 17, §2; RL 1935, §5542; am L 1939, c 104, §7; am L 1941, c 15, §2; am L 1943, c 62, §21 and c 64, §22; RL 1945, §10849; RL 1955, §258-60; am L 1957, c 282, §11; am L 1963, c 34, § §1, 2 and c 85, §3; HRS §711-84; ren L 1972, c 9, pt of §1; gen ch 1985; am L 1989, c 211, §10; am L 1990, c 281, §11]
Cross References
Stay, see §804-4.
Rules of Court
Arrest of judgment, see HRPP rule 34.
Correction or reduction of sentence, see HRPP rule 35.
Sentence and judgment, see HRPP rule 32.
Attorney General Opinions
Sentences of imprisonment to run concurrently in absence of contrary intent. Att. Gen. Op. 62-40.
Case Notes
Prisoner discharged where sentence not in conformity with law. 3 H. 17 (1866).
Where sentence in mittimus is in alternative in words of statute, it is ground for discharging prisoner. 7 H. 162 (1887). Sentences intended to be cumulative should be so stated, otherwise presumption is that they are concurrent. 7 H. 162 (1887).
Courts cannot suspend sentence indefinitely. 11 H. 287 (1898); 11 H. 293, 313 (1898).
Imposition of sentence, procedure prior to adoption of Hawaii Rules of Criminal Procedure. 37 H. 477 (1947).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-72 Probation officers.

§806-72 Probation officers.
Any probation officer assigned to the courts may be placed in any correctional facility to perform the probation officer's assigned duties. [L 1931, c 41, pt of §4; RL 1935, §5538; RL 1945, §10844; RL 1955, §258-54; HRS §711-78; am L 1970, c 10, §1 and c 188, §39; ren L 1972, c 9, pt of §1; am L 1973, c 179, §25; gen ch 1985]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-76 Court proceedings; reports to county clerk.

§806-76 Court proceedings; reports to county clerk.
Whenever in any circuit court, family court, or district court any citizen of eighteen years of age or over is:
(1) Convicted of any felony and sentenced to a term of imprisonment; or
(2) Adjudged insane or feeble-minded or otherwise legally incompetent,
the clerk of the court, in each case within twenty days thereafter, shall report to the clerk of the county in which the citizen is located the fact of the conviction or adjudication and the citizen's name, any known aliases, date of birth, social security number, and to the extent readily ascertainable by the clerk of the court, the residence address or last known residence address. For a citizen convicted of any felony and sentenced to a term of imprisonment, copies of the judgment of conviction and sentence and mittimus (warrant of commitment) shall be provided to the clerk of the county. [L 1933, c 67, pt of §2; RL 1935, §5535; RL 1945, §10841; am L 1955, c 191, §1(gg); RL 1955, §258-51; HRS §711-96; am L 1970, c 188, §39; ren L 1972, c 9, pt of §1 and am L 1972, c 109, §2; am L 2006, c 253, §2]
Cross References
Paragraph (2), see chapters 333F, 334, and 551.
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-81 Definitions.

§806-81 Definitions.
In this part, unless a different meaning is plainly required:
"Legal prosecuting officer" means the attorney general or a prosecuting attorney, a deputy attorney general or a deputy prosecuting attorney, or a person designated and authorized by the attorney general or prosecuting attorney to act as a deputy attorney general or deputy prosecuting attorney, respectively. [L 2004, c 62, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-82 Prosecution of felonies by written information.

§806-82 Prosecution of felonies by written information.
Criminal charges may be instituted by written information signed by a legal prosecuting officer and filed in the court having jurisdiction thereof when the charge is a felony for which charging by written information is permitted by section 806-83. [L 2004, c 62, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-84 Exhibits.

§806-84 Exhibits.
(a) When an offense is prosecuted by information, the legal prosecuting officer shall attach an exhibit demonstrating the existence of probable cause to believe that the offense charged in the information has been committed and that the defendant committed the offense.
(b) The exhibit shall include an affidavit or a declaration made under penalty of law. In addition, the exhibit may include, but is not limited to, documents, photographs, audio recordings, video recordings, other recordings, and other materials or copies thereof.
(c) The legal prosecuting officer shall include within the exhibit evidence that is clearly exculpatory, but no information shall be dismissed for failure to include such evidence if the court finds that the inclusion of the clearly exculpatory evidence would not have changed the finding of probable cause.
(d) Each signed statement of any person whose name appears as a witness in any affidavit or declaration that is part of the exhibit regarding the charged offense shall be made part of the filing if:
(1) It is in the possession of the legal prosecuting officer, the police, other county or state law enforcement agents; or
(2) It is in the possession of a federal law enforcement officer and:
(A) The legal prosecuting officer is aware of and able to timely obtain the statement; and
(B) The statement is one that the legal prosecuting officer would be required to produce in discovery.
(e) Statements made part of the filing pursuant to subsection (d) may be redacted to remove the social security number, address, or phone number of any person.
(f) An information shall not be dismissed for failure to attach or file any such statement described in subsection (d). Any such statement shall be promptly provided to the defendant, or filed with the court if the location of the defendant is unknown or the defendant is without counsel, upon discovery by the legal prosecuting officer.
(g) The information shall be filed in the circuit court, and may be filed under seal with leave of court on good cause shown. All exhibits in support of the information shall be filed under seal in the circuit court. [L 2004, c 62, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-85 Probable cause.

§806-85 Probable cause.
(a) When an information is filed, the court having jurisdiction shall review the information and its exhibit to determine whether there is probable cause to believe that the offense charged was committed and that the defendant committed the offense charged.
(b) A finding of the existence of probable cause or lack thereof may be based in whole or in part upon hearsay evidence or upon evidence that may ultimately be ruled to be inadmissible at the trial.
(c) If the court finds that there is probable cause to believe that the offense charged was committed and that the defendant committed the offense charged, the court shall set bail and direct the clerk to issue a warrant for the arrest of the defendant.
(d) As used in this section, "court having jurisdiction" and "court" mean the circuit court; provided that the chief justice may by order authorize district court judges to make probable cause determinations, set bail, and direct the issuance of arrest warrants, as provided by this section. [L 2004, c 62, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-86 Procedure for motion to dismiss.

§806-86 Procedure for motion to dismiss.
(a) The defendant may move in circuit court to dismiss the information on the grounds that the information and its exhibit do not establish the existence of probable cause to believe that the offense charged was committed or probable cause to believe that the defendant committed the offense.
(b) Upon the filing of the motion to dismiss, the court shall conduct a hearing within a reasonable time, but no later than thirty days after filing, except as otherwise agreed upon by the parties.
(c) If the defendant is incarcerated the court shall conduct a hearing no later than fifteen days after filing, except as otherwise agreed upon by the parties.
(d) An information shall not be dismissed due to the failure of the court to conduct a hearing within the periods of time stated above; provided, that if the defendant is incarcerated due to an inability to post the previously set bail and a hearing is not held within the specified time period, the court shall immediately hold a hearing to consider whether the defendant should be released upon reasonable conditions set by the court.
(e) The information and all its attachments shall be considered by the court and made a part of the record at a hearing on the motion to dismiss the information. [L 2004, c 62, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-87 Evidence at hearing on motion to dismiss.

§806-87 Evidence at hearing on motion to dismiss.
(a) The defendant may introduce evidence at the hearing. The defendant may also subpoena and call witnesses if the motion is accompanied by a declaration stating that counsel for the defendant (or the defendant if appearing without counsel) has a good faith basis to believe that each witness subpoenaed will provide specific testimony to help demonstrate that the information and its exhibit or exhibits do not establish the existence of probable cause to believe that the offense charged has been committed or probable cause to believe that the defendant committed the offense charged.
(b) The court may, in its discretion, permit the State to call witnesses, introduce evidence, or otherwise supplement the exhibit or exhibits appended to the information. [L 2004, c 62, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806. Criminal Procedure: Circuit Courts › 806-88 Ruling on motion to dismiss.

§806-88 Ruling on motion to dismiss.
(a) The court shall determine from an examination of the information and its attachments, and in light of any evidence presented at a hearing on a motion to dismiss the information, whether the information and its attachments establish the existence of probable cause to believe that the offense charged has been committed and that the defendant committed the offense charged.
(b) A finding of the existence of probable cause or lack thereof may be based in whole or in part upon hearsay evidence or on evidence that may ultimately be ruled to be inadmissible at the trial. [L 2004, c 62, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806D. Criminal Process Records › 806D-1 Definitions.

§806D-1 Definitions.
Whenever used in this chapter, unless otherwise apparent from the context:
"Adverse result" includes one or more of the following possible consequences:
(1) Danger to the life or physical safety of an individual;
(2) A flight from prosecution;
(3) The destruction of, potential loss of, or tampering with evidence;
(4) The intimidation of potential witnesses; or
(5) Jeopardy to an investigation or undue delay of a trial.
"Applicant" means a law enforcement officer, prosecuting attorney or deputy prosecuting attorney, attorney general or deputy attorney general, or defense attorney who is seeking criminal process under section 806D-2.
"Criminal process" means a search warrant or legal process issued pursuant to chapters 28, 621, 622, and 803; the Hawaii rules of penal procedure; and any other legal process signed by a judge or clerk of the district or circuit court and issued in a criminal matter that allows the search for or commands production of records that are in the actual or constructive possession of the recipient, regardless of whether the recipient or the records are physically located within the State.
"Defense attorney" means an attorney of record for a person charged with a crime, when such attorney is seeking the issuance of criminal process for the defense of the criminal case.
"Properly served" means delivery by hand or in a manner reasonably allowing for proof of delivery if delivered by United States mail, overnight delivery service, or facsimile to the recipient addressee of criminal process.
"Recipient" means a person, as defined in section 701-118, or a business, as defined in section 487J-1, that has conducted business or engaged in transactions or activities occurring at least in part in the state from which process was issued upon whom process is properly served. [L 2012, c 325, pt of §2; am L 2014, c 219, §1; am L 2016, c 160, §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806D. Criminal Process Records › 806D-2 Production of records.

§806D-2 Production of records.
(a) This section shall apply to any criminal process allowing for search of or commanding production of records that are in the actual or constructive possession of a recipient who is properly served outside the State, regardless of whether the recipient or the records are physically located within the State.
(b) When properly served with criminal process issued under this section, the recipient shall provide the applicant all records sought pursuant to the criminal process. The records shall be produced within twenty business days of service of the criminal process, unless the process requires earlier production. An applicant may consent to a recipient's request for additional time to comply with the criminal process.
(c) Criminal process issued under this section shall contain the following language in bold type on the first page of the document:
"This [warrant, subpoena, order] is issued pursuant to §806D-2, Hawaii Revised Statutes. Production is due within twenty business days of service, unless a shorter time is stated herein, or the applicant consents to a recipient's request for additional time to comply."
(d) If the issuing court finds reason to suspect that failure to produce records within twenty business days would cause an adverse result, the criminal process may require production of records within less than twenty business days. The court may reasonably extend the time required for production of the records upon finding that the recipient has shown good cause for requesting that extension and that an extension of time would not cause an adverse result.
(e) When properly served with criminal process issued under this section, a recipient who seeks to quash the criminal process may seek relief from the issuing court only within the time originally required for production of records. The issuing court shall hear and decide the motion no later than five court days after the motion is filed. An applicant's consent, under subsection (b), to a recipient's request for additional time to comply with the criminal process shall not extend the date by which a recipient who seeks relief may do so. [L 2012, c 325, pt of §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806D. Criminal Process Records › 806D-4 Service of process issued by or in another state.

§806D-4 Service of process issued by or in another state.
(a) When a Hawaii recipient is properly served with process issued by or in another state that commands the production of records in the actual or constructive possession of that person or business, and such process on its face purports to be a valid process based on a pending criminal investigation or prosecution in that other state, the Hawaii recipient shall comply with that process as if that process had been issued by a Hawaii court; provided that the issuing state has a statute authorizing the production of records held by out-of-state persons or businesses.
(b) The service of process issued by or in another state shall include the following information:
(1) The name, office, business address, telephone number, and electronic mail address of the person applying for the issuance of the service of process;
(2) The statute authorizing the production of records held by out-of-state persons or businesses; and
(3) The relevant criminal statutes upon which the pending investigation or prosecution is based.
(c) As used in this section, "Hawaii recipient" means a recipient who is physically present in the State of Hawaii. [L 2012, c 325, pt of 2; am L 2014, c 219, §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806D. Criminal Process Records › 806D-5 Recipients' immunity from liability.

§806D-5 Recipients' immunity from liability.
A recipient of criminal process under this chapter, and any other person that responds to such process is immune from civil and criminal liability for complying with the process, and for any failure to provide notice of any disclosure to the person who is the subject of or identified in the disclosure. [L 2012, c 325, pt of §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 806D. Criminal Process Records › 806D-6 Issuance of criminal process.

§806D-6 Issuance of criminal process.
A judge of the district or circuit court may issue any criminal process to any recipient at any address within or out of the State, for any matter over which the court has criminal jurisdiction pursuant to section 701-106. This section does not limit a court's authority to issue warrants or legal process under other state law. [L 2012, c 325, pt of §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 831. Uniform Act on Status of Convicted Persons › 831-1 Definition.

§831-1 Definition.
In this chapter, "felony" means an offense that is punishable with imprisonment for a term which is in excess of one year. [L 1969, c 250, pt of §1; HRS §716-1; ren L 1972, c 9, pt of §1; am L 1975, c 14, §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 831. Uniform Act on Status of Convicted Persons › 831-2 Rights lost.

§831-2 Rights lost.
(a) A person sentenced for a felony, from the time of the person's sentence until the person's final discharge, may not:
(1) Vote in an election, but if the defendant is placed on probation or the defendant is paroled after commitment to imprisonment, the defendant may vote during the period of the probation or parole; or
(2) Become a candidate for or hold public office.
(b) A public office held at the time of conviction is forfeited as of the date of the conviction, if the conviction is in this State, or, if the conviction is in another state or in a federal court, as of the date a certification of the conviction from the trial court is filed in the office of the lieutenant governor who shall receive and file it as a public document. An appeal or other proceeding taken to set aside or otherwise nullify the conviction or sentence does not affect the application of this section.
For purposes of this section:
"Public office" means an office held by an elected official, department heads, officers, and members of any board, commission, or other state agency whose appointments are made by the governor, chief justice, office of Hawaiian affairs, or the judicial selection commission, or are required by law to be confirmed by the senate.
"Time of conviction" means the day upon which the person was found guilty of the charges by the trier of fact or determined to be guilty by the court.
(c) Subsections (a) and (b) of this section and any other laws to the contrary notwithstanding, any person convicted of any act, attempt, or conspiracy to overthrow the state or the federal government by force or violence shall not hold any public office or employment. [L 1969, c 250, pt of §1; HRS §716-2; ren L 1972, c 9, pt of §1; am L 1979, c 53, §2; gen ch 1985; am L 2002, c 171, §2; am L 2003, c 150, §3; am L 2006, c 253, §3]
Attorney General Opinions
OHA trustees are holders of "public office". Att. Gen. Op. 84-3.
Case Notes
Cited: 49 F. Supp. 3d 727 (2014).