Felony-charging plan moves to full House

By Gordon Y.K. Pang
Advertiser Capitol Bureau

The state's voters may soon be choosing again whether to approve an amendment to the state Constitution that would allow prosecutors to send felony cases to trial based on written reports to a state judge.

The House Judiciary Committee moved out Senate Bill 2851, Senate Draft 1, which would place a constitutional amendment question on this November's ballot asking voters if they want to "allow a felony prosecution to be initiated by a criminal prosecuting officer through the filing of a signed written information setting forth the charge," known more commonly as "information charging" or "direct filing."

An amendment that included the same language was approved by voters in the 2002 general election, with about 57 percent of the electorate supporting it, but the Hawai'i Supreme Court struck it down on Feb. 24 because of technical flaws. The justices sided with the American Civil Liberties Union argument that the state did not provide a complete text of the proposed amendment to state libraries, and that a voter-education pamphlet mailed to all registered voters also did not contain the text. The opinion also said the state did not print the proposed amendment in any newspaper until less than a week before the general election.

Prosecutors and law-enforcement officials say the measure would save them and crime victims from needing to appear in court for preliminary hearings or grand jury sessions. The ACLU and some criminal-defense attorneys believe the amendment amounts to an erosion of "due process rights" of those charged with serious crimes. A defendant now stands trial on felony charges only when a judge at a preliminary hearing or a grand jury returns an indictment that finds the defendant probably committed a crime.

Several opponents of the amendment argued their points with the Judiciary Committee yesterday, but Judiciary Chairman Eric Hamakawa, D-3rd (Hilo, Kea'au, Mt. View), said he saw no need to debate that issue when it was given an ample discussion two years ago. "This is the same issue we've been talking about over the last three years," he said. "This is not something that's just come before us this year."

Since the Senate has approved Senate Bill 2851 SD1, and because of the House Judiciary Committee vote yesterday, only passage by the full House is required for the question to return on the ballot.

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com or at 525-8070.