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The Honolulu Advertiser
Posted on: Friday, October 4, 2002

Felony-charge proposal debated

By David Waite
Advertiser Courts Writer

City Prosecutor Peter Carlisle has joined forces with other law enforcement officials and state legislators in urging voters to ratify a proposed state constitution amendment that he believes will make it easier to bring people accused of felony crimes to trial in Hawai'i.

But some of Hawai'i's leading criminal defense attorneys, the Hawai'i American Civil Liberties Union chapter, several University of Hawai'i law school professors, the Teamsters, the ILWU and the Japanese American Citizens League contend that adoption of the amendment will lead to a "dangerous erosion" of due process rights for people accused of serious crimes.

The proposed amendment will be on the Nov. 5 general election ballot.

The proposal deals with the way hundreds, if not thousands, of people are ordered to stand trial on felony charges in Hawai'i. At present, those defendants can only be brought to trial in one of two ways: either by a grand jury indictment or as a result of what's called a "preliminary hearing."

The proposed amendment would authorize state lawmakers to permit a third approach — called "information charging" — which prosecutors say is used in some other states. The third approach would permit prosecutors to submit a written statement supported by sworn affidavits of police officers or others, to a judge. The judge would then determine whether there is sufficient evidence to bring someone suspected of a felony crime to trial.

An information sheet distributed by the state Office of Elections says the process is used in 10 other states.

Currently, in preliminary hearings, prosecutors call witnesses, often including crime victims, in open court proceedings to testify before a judge. The criminal defendant is present and his or her lawyers can cross-examine witnesses. The judge then decides whether there is enough evidence or "probable cause" to believe a person charged with crimes likely committed the offenses and must stand trial.

In grand jury proceedings, which are confidential, prosecutors call witnesses to present testimony to a panel of 14 grand jurors who decide whether there is enough evidence to indict someone and send the case to trial. In those proceedings, witnesses are not cross-examined by defense attorneys and defendants are not present.

At a news conference yesterday at the State Capitol, Carlisle joined with state lawmakers who helped pass the ballot issue this year in urging support for the proposed amendment.

House Judiciary and Hawaiian Affairs Committee Chairman Eric Hamakawa D-3rd (S. Hilo, Puna) said allowing prosecutors to use information charging would help streamline the judicial system and would not compromise civil rights.

"It would help keep police officers on the beat rather than waiting around in court," Hamakawa said.

State Rep. Cynthia Thielen R-49th (Kailua, Kane'ohe Bay Dr.) said the effort to put the proposed constitutional amendment before voters drew bipartisan support. Information charging "makes a great deal of sense," Thielen said. "Up till now, victims have had to testify at numerous court hearings and we've had to pull police off the streets," Thielen said.

She said the measure, if adopted, would strike a blow for "victims' rights."

"It can be a tremendously painful experience for sexual assault victims to have to relive and relive and relive" their ordeal by testifying at a preliminary hearing, Thielen said.

Carlisle said all of the county prosecutors in Hawai'i support the measure as do all of the county police chiefs, state Attorney General Earl Anzai and U.S. Attorney Ed Kubo.

But he declined to provide a basic explanation of how the proposed process would work in Hawai'i. "It's something that's done in the Mainland in a whole bunch of states" Carlisle said.

Carlisle could not immediately say what percentage of felony cases his office would likely bring to trial by using charging by information, but he estimated it could save his office $600,000 a year. "It's been done on the Mainland for more than 50 years," he said

At an afternoon news conference, opponents of the measure said it would clearly erode due-process rights. The federal criminal justice system does not permit "information charging" for felony cases and requires an indictment by a federal grand jury to send the cases to trial.

"We are all here to strongly urge the public to vote no," said Howard Luke, a former deputy city prosecutor who now specializes in criminal defense.

Criminal defense lawyer Brook Hart said the preliminary hearing and grand jury processes both require witnesses to swear under oath that their statements are true and serve as a "meaningful screening process" to help determine the strength of a case against a defendant.

In 30 years of practice in Hawai'i, Hart estimated he was successful in having felony charges against his clients dropped more than 100 times at the preliminary hearing stage.

Virginia Hench, UH law school professor, described the proposed constitutional amendment as "ill-conceived and open-end" and urged voters to reject it.

Critics of the measure said a companion bill that would have spelled out the specifics of how the proposed process would work in Hawai'i was killed in the Legislature.

Without those specifics, voters are being asked to buy a "pig in a poke," Hench said.

The proposed constitutional amendment would have to be approved by more than half of those who vote in the Nov. 5 general election. "Blank" ballots will be counted as "no" votes on the issue.

The ratification of the proposed amendment would clear the way for the state Legislature to draft a new section of state law that would allow prosecutors to use the "information charging" approach.