EDITORIAL
On the constitutional amendments, vote no
On Nov. 2, voters in the general election will be asked whether they want to rewrite the Hawai'i Constitution in four areas of great concern to the law enforcement community.
Our recommendation is that you cast a "no" vote on each of the amendments.
Three of the four proposed changes react to decisions by the Hawai'i Supreme Court, interpreting this state's Constitution.
The fourth creates a new way in which a person could be brought to criminal trial (aside from today's grand jury and preliminary hearing process).
The changes address legitimate problems of concern to the justice and law enforcement system. However, it is our belief that those problems can be addressed statutorily.
And indeed, all four of the amendments require the Legislature to come up with specific laws to implement the constitutional change.
The Hawai'i Constitution has a strong emphasis on civil rights and an individual's right to privacy. In small but significant ways, these four amendments would erode those traditions.
The four changes are being strongly pushed by Honolulu Prosecutor Peter Carlisle and state Attorney General Mark Bennett. Opponents generally credit Carlisle and Bennett as being men of goodwill who have no intention of riding roughshod over the rights of criminal defendants.
We agree. But Bennett and Carlisle will not be in office forever. Nor is it certain that the Legislature will always be as careful and conscientious as it is today.
That's where the Constitution comes in.
Briefly, here is our reasoning in each of the four amendments and why we recommend a "no" vote.
Sexual assault cases
Question One would let the Legislature decide what behavior constitutes a "continuing" course of conduct in sexual assault cases. This primarily relates to cases of sexual assault against minors.
Today, based on a ruling by the Supreme Court, the prosecution must prove at least three specific cases of assault to win a conviction in the more serious "continuing course of conduct" crime.
Under the proposal, if jurors concluded there were at least three instances (even if they could not agree on which three instances) of sexual assault, they could convict on the more serious charge.
In effect, this would allow a jury to convict without unanimous agreement, a step back from a well-established procedures in criminal cases.
Internet criminal data
Question Two would give the public access on the Internet to information (including car license, home address and work information) about persons convicted of certain sexual offenses. This reacts to a Supreme Court decision that individuals must be given a due-process hearing before their names and other information are posted.
A task force is working on legislation that would guide judges in deciding whose name automatically goes up on the posting and for how long, and who would qualify for a hearing. At a minimum, it would be premature to approve this amendment before we know, with specifics, how it would work.
Confidentiality
Question Three essentially says conversations between a crime victim and his or her physician, counselor, psychologist or mental health professional are inadmissible in court.
This would embed in the Constitution a right to confidentiality already found in the law. Today, there is a delicate balance between the need to protect privileged information and the right of a defendant to have access to information that might prove his or her innocence.
If this amendment passes, it would tip the scales in favor of the inviolability of the privilege and set up a conflict with the constitutional rights of the defendant.
Information charging
Question Four is, in many ways, the trickiest. It would allow law enforcement to bring charges against a defendant by simply filing paperwork with a judge that, to the judge's satisfaction, demonstrates probable cause that a crime has been committed.
Today, it takes a grand jury or a preliminary judicial hearing, with witnesses, to bring a charge.
Law enforcement officials say the new procedure would be efficient and would save crime victims and police officers from the time, trouble and, in the case of victims, trauma of going through the preliminary hearing or grand jury process.
A law to implement this change is already in place, the result of a lot of hard work and compromise by a task force led by Bennett. The compromise was that the paper filing process would not be used in serious felony and sex assault cases.
Rather, it would only apply in the more "routine" sort of cases, such as burglary and car theft, that make up more than 70 percent of the work for prosecutors and the courts.
This sounds reasonable for routine cases.
The problem, however, is that once information charging is in the Constitution, there is nothing to prevent the Legislature from upping the ante. Would it be right, for instance, to bring charges of sexual assault or rape against an individual without the alleged victim appearing in person before a judge or a grand jury?
There is an alternative, which is already in use in Hawai'i in rare cases in which the victim (a tourist, for instance) cannot appear. This procedure allows investigating officers to summarize the case for the court, which then decides whether or not to bind the case over for trial.
Rather than rewrite our Constitution, our suggestion is that the Legislature broaden the applicability of summary testimony for "routine" cases.
These four amendments are brought before the voters by well-meaning law enforcement officers who, understandably, have the interests of the victims at heart.
There are ways to achieve their goals without wholesale changes to a liberal, progressive state Constitution that has stood the test of time.
