COMMENTARY
Voters should vote 'No' on all four proposed amendments to our Hawaii Constitution
By Brook Hart and Susan Arnett
The framers of the Hawai'i Constitution in 1950 were well aware of our unique history. They remembered the Massie case of the 1930s, in which an incident involving sex, violence and racism triggered hysteria in Honolulu. They also remembered what happened during World War II, when the civil liberties of Japanese-Americans were violated.
The delegates to the 1950 Constitutional Convention recognized that the U.S. Constitution, formulated more than 150 years earlier, did not necessarily reflect all the concerns of Hawai'i residents. They decided to establish fundamental rights that would supplement the rights in the U.S. Constitution, and provided that the justices of the Hawai'i Supreme Court would interpret those rights independent of the U.S. Supreme Court.
Thus, our state Constitution now provides broadly for due process and equal protection under the law for accused people, including guarantees of:
• Trial by jury, in which jurors must unanimously find guilt for each separate occurrence.
• The accused's right to cross-examine his or her accuser at trial in search of the truth.
• Notice and opportunity to be heard before damage to one's reputation and livelihood can be caused by governmental publication of past crimes.
• A grand jury, or a judge at a preliminary hearing, finding probable cause that a person has committed a felony before that person can be tried.
The four proposed amendments to our state Constitution would seriously curtail or eliminate those basic rights in order to make prosecutors' jobs easier. The first three are an inappropriate attempt by prosecutors to overturn recent decisions of the Hawai'i Supreme Court that ensure fairness for all residents. We urge you to vote no on all four proposed amendments.
No. 1: Nonunanimous jury verdict. This proposed amendment would permit the Legislature to require that an accused person can be convicted of continuous sexual assault of a person younger than 14, even when jurors disagree about what acts were committed.
A unanimous jury verdict is a cornerstone of our criminal justice system, and this offense shouldn't be treated any differently. It's wrong to allow conviction without unanimous juror agreement on all aspects of the alleged offense.
The state still retains the right to charge someone with individual acts of sexual misconduct. The current law prohibits the prosecutor from attaching allegations of sexual misconduct that cannot be proved beyond a reasonable doubt to those that can in order to unjustly enhance a sentence.
No. 2: Public Access to Sex Offender Registration Information. The way this amendment is worded might make you believe that Hawai'i doesn't already have a "Megan's Law." We do. People already can learn extensive information about a convicted sex offender who is subject to public notification, including home address, vehicle license-plate number and photograph.
Convicted sex offenders subject to registration must register with the state for life. Those subject to public notification are entitled to a hearing, where there is a presumption in favor of public notification. This hearing, which the proposed amendment would cancel, simply gives the offender an opportunity to rebut that presumption.
Once a judge orders public notification, it is for a minimum of 10 years. Many offenses have mandatory lifelong public notification. The hearing process already has commenced, and the hearings are averaging about 10 minutes. For current offenders, the hearings are being combined with sentencing. It is not a burden on the court system.
No. 3: Inadmissibility of counselor's privileged communications. This proposed amendment would grant an absolute privilege to communications between an alleged victim and a treating doctor, counselor or mental-health professional. Those privileges currently exist as evidentiary rules, but are not absolute: They can be superseded in limited circumstances if necessary for a fair trial and if authorized by a judge.
Pursuit of the truth is essential to our system of justice. This amendment would keep from a jury relevant evidence such as an accuser's statement to a counselor that he/she lied about the alleged incident. This evidence could be crucial in fairly determining innocence or guilt. At a time when DNA evidence continues to prove the innocence of many previously convicted defendants, our justice system cannot afford to reduce the due-process right to confront accusers with pertinent information.
No. 4: "Direct file" charging. This proposed amendment would authorize a prosecutor to bring felony charges by written information only, eliminating the current requirement to present sworn live testimony before a grand jury, or before a judge at a preliminary hearing, to establish probable cause. A judge would need only to review paperwork submitted by the prosecutor and wouldn't have the opportunity to question live witnesses and make firsthand evaluations of their credibility.
Being charged with a felony results in immediate and irreparable damage to a person's name, employment, financial status and standing in the community. For those who can't afford bail, it also may mean pretrial incarceration for months (sometimes more than a year) before trial.
This shouldn't occur without sworn live testimony before a grand jury (representing a cross-section of our community) or a judge who can weigh whether the accuser and/or other witnesses are being untruthful, or whether the prosecutor engaged in misconduct by excluding evidence of a person's innocence. Without live testimony, there is no way to know whether the charge actually is supported by probable cause.
Hawai'i residents should not lose the protections of the grand jury and preliminary hearing for a deficient charging method that has been rejected by the federal government and all but 11 states. Of those states, only two fail to provide some opportunity for the accused to confront and cross-examine an accuser before trial.
