Another Side of the Story
Another Side of the Story
Constitutional Amendment Question No. 3
Neither the sky nor
due process is fallingLike Chicken Little panicking and screaming that "the sky is falling, the sky is falling," a number of criminal defense attorneys and an enthusiastic member of the ACLU have written letters to the editor suggesting that a "yes" vote on question No. 3 on Nov. 5's ballot will do irreparable harm to our cherished system of due process.
All question No. 3 will do is allow a felony case to start by a probable cause determination using hearsay evidence. I know of three types of probable cause determinations in the United States: the grand jury, preliminary hearings and information charging. These hearings and procedures are NOT the trial of the case; rather, they start the case. The highest court in our country, the U.S. Supreme Court, has definitively ruled that using exclusively hearsay evidence at a probable cause determination is perfectly permissible and does not violate due process.
In fact, on the mainland, probable cause determinations based exclusively on hearsay are the norm. Thirty-seven states permit exclusively hearsay evidence for a probable cause determination. Five other states permit more hearsay evidence than is allowed in Hawaii's probable cause determinations. The entire federal court system allows hearsay for probable cause determinations. Even the U.S. District Court of Hawaii instructs its grand juries:
"Hearsay testimony may in itself, if deemed by you to be persuasive, provide a basis for returning an indictment against the accused."
Hawaii's current system is costly, cumbersome and often painful for crime victims. We'd rather have police officers on the beat than sitting around in court waiting to be called to the witness stand, and the system could stand to be a lot more friendly to victims and witnesses. But there is concern that because a companion bill that would have spelled out the specifics about how information charging would work in Hawaii was killed in the Legislature, we don't really know how it would work here. The fear is that we might be "buying a pig in a poke."
If you look at the legislation proposed in the companion bill and the progress of that legislation through the session, you can understand the details of how information charging will work in Hawaii. To ensure that due process rights would not be violated, the following details regarding information charging were proposed and supported by prosecutors, police and others:
>> The decision to begin a felony case would be made by a judge, NOT by police or prosecutors.Since the use of information charging has the support of the House and Senate leadership of both parties it is fair to assume that they will, at the very least, provide the preceding procedural safeguards. What is in question is whether the Legislature will provide even more benefits to the criminally accused and their criminal-defense advocates.>> The standard of proof would be probable cause. This is the same as with grand juries and preliminary hearings.
>> The defendant would be able to move in circuit court to dismiss the case due to a lack of probable cause. The defendant has this option now and would still have it.
>> Information charging would NOT eliminate either the grand jury or preliminary hearings but would be another alternative.
>> By the end of the session, I agreed on behalf of law enforcement to limit the use of information charging to level B and C felonies -- crimes such as felony shoplifting, car theft and burglary. Information charging would not be used for crimes such as murder, armed robbery and forcible sexual assault.
The only major difference between information charging and our current system of grand jury or preliminary hearings is the type of evidence presented. Under information charging, evidence would consist of exhibits such as affidavits sworn to before the legal prosecuting officer, documents, photographs, recordings or other materials or copies thereof. Under current practice, live witnesses show up and testify as to matters that almost always have been documented. Usually the live testimony has far fewer details than the written reports.
For example, at the grand jury in the Xerox case two pathologists testified that bullets shot from a gun killed the seven victims. Their autopsy reports provided far more details such as the path of each bullet, what organs were damaged, what bones were broken, which were entry or exit wounds and which wounds were fatal. Now, the TRIAL testimony of the pathologists contained all the details in the autopsy reports, which is appropriate for trial but is NOT necessary for a probable cause determination made by the grand jury.
So here are my responses to some of the complaints of the criminal defense bar and the ACLU member that have appeared in print:
>> "Question No. 3, the proposed constitutional amendment on the November ballot calls for the elimination of grand juries and preliminary hearings." -- Art Ors, criminal defense lawyer.So on Nov. 5 you can join criminal defense lawyers and the ACLU in keeping things the way they are in Hawaii's criminal justice system or, with your YES vote on question No. 3, you can join the growing number of supporters of information charging. These supporters include Hawaii's Democratic legislative leaders; Hawaii's Republican legislative leaders; the nonpartisan Honolulu City Council; AARP; MADD; The Domestic Violence Clearinghouse and Legal Hotline; The Hawaii Banker's Association; The Hawaii Hotel Association; The Retail Merchants of Hawaii; the Hawaii Building and Construction Trades Council; all of Hawaii's police chiefs; the Attorney General of the State of Hawaii; The United States Attorney of the District of Hawaii; many others; and all of Hawaii's prosecuting attorneys, including me.FALSE. Grand juries and preliminary hearings will remain in our Constitution and will be joined, not replaced, by a third alternative -- information charging.
>> "What this proposed amendment will do is give the police a carte blanche to have people locked up for months awaiting trial without there being a neutral and detached magistrate to prevent abuses by the police." -- Earl A. Partington, criminal defense lawyer.
FALSE. A judge will make that decision.
>> "Amending the state Constitution will allow prosecutors to charge based solely on accusations by police officers who have a mission interest in preferring the charge." -- Brook Hart, criminal defense attorney
FALSE. Prosecutors will still have to introduce evidence that there is probable cause to believe that each element of an offense has been committed and that the Defendant is the person who committed that offense.
>> " Question No. 3 on the Nov. 5 ballot may allow prosecutors to determine on their own -- without a judicial hearing or grand jury indictment -- when there is probable cause for proceeding to prosecution and trial." -- Bob Rees, former member of the ACLU.
FALSE. A judge will determine probable cause.
Peter Carlisle is Honolulu's prosecuting attorney.
>> Opponents of ballot question No. 3 give their side on Monday's Commentary page.
