Aloha Big Island Thieves Media,

I am reaching out to you to bring your attention to a Hawai`i Supreme Court decision that came out today and will have a substantial impact on the criminal justice system statewide. Attached, please find the majority opinion and both dissents in State v. Richard OBRERO.

The majority ruled that HRS Section 801-1 (Indictment or information) precludes the State from prosecuting felonies by way of Complaint and Preliminary Hearing. This contradicts settled Hawai`i criminal law practices and procedures. This will jeopardize the commencement of criminal proceedings for arrest and charge situations in serious cases, including but not limited to murder, kidnapping, robbery, domestic violence, drug trafficking, and sexual assault. As a result, offenders may be released until prosecutors are able to proceed via information charging or schedule and coordinate a grand jury proceeding, resulting in significant public safety concerns. This is also problematic because not all charges are eligible for information charging and opportunities for grand jury commencement are limited. Currently on Hawai`i island, we are only afforded grand jury twice per month in Hilo and once per month in Kona.

If the Honolulu Prosecutors’ Office does not succeed via a motion for reconsideration in State v. OBRERO, swift legislative action may be necessary to correct this obsolete statute.

In his dissent Chief Justice Rectenwald stated, “HRS Section 801-1 is directly contrary to the text and purpose of article I, section 10.  It was therefore superseded and rendered inoperative the day that the 1982 amendment went into effect.  The fact that the legislature neglected to take an obsolete statute off the books should not be allowed to defeat the intent of the framers.”

As for possible legislative action, one suggestion would be to amend Section 801-1 (Indictment, complaint, or information) to read as follows, “No person shall be subject to be tried and sentenced to be punished in any court, for an alleged offense, unless upon indictment, complaint following a finding of probable cause after a preliminary hearing, or information, except for offenses within the jurisdiction of a district court or in summary proceedings for contempt” (emphasis added).

All of the County Prosecutors and the Attorney General’s Office are currently discussing among their staff and leadership on proposed courses of action. Please let me know if you have any questions.

Mahalo for your consideration and your ongoing support to join us in working towards making Hawai`i Island a better and safer place.  

Kelden

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