Proposal to speed Hawaii's legal community squared off yesterday on a proposed constitutional amendment that would allow prosecutors an alternative to grand juries and open preliminary hearings when seeking a felony criminal charge.
hearing process
draws legal debate
Constitutional Amendment No. 3
By Debra Barayuga
dbarayuga@starbulletin.comIf approved by voters on Nov. 5, constitutional Amendment No. 3 would pave the way for a process called direct file, or information charging, which allows a prosecutor to file a signed written document detailing the criminal charge and eliminates direct witness testimony. A judge would then review the written information and determine whether there is probable cause to go forward with a criminal trial.
Under the grand jury and preliminary hearings processes, witnesses are brought in, sworn under oath and questioned, and the jurors or the judge determine whether there is probable cause to proceed to trial.
Prosecutors say direct filing gives fairer treatment to victims and witnesses, gets defendants to trial faster and increases public safety by freeing up police officers from having to testify.
But opponents contend that if the amendment passes, there are no safeguards to ensure a defendant's rights are protected.
About 10,000 victims and witnesses testify annually at grand jury and preliminary hearings in Hawaii, the prosecutor's office estimates. They include police officers, property owners and paid experts such as doctors. They must juggle schedules and take time off from work to testify and repeat statements they already gave to police.
Direct file would require victims and witnesses to show up only once, at trial, said City Prosecutor Peter Carlisle yesterday after a press conference touting the amendment. "It treats victims fairer," he said. "It's not only criminal defendants who have rights, other people do, too."
Lawmakers who supported the measure said it would ease the burden on victims and witnesses of having to make court appearances and would save police and prosecutors manpower worth millions of dollars a year. The amendment has the support of the city, state and federal law enforcement community.
Defense attorneys and other opponents responded with their own press conference yesterday, decrying direct file for taking away the defendant's opportunity to hear the testimony of the complaining witness or victim or to review grand jury transcripts and videotapes in advance.
"In order to have a fair trial, all parties have to look at the evidence in advance and be able to evaluate them," said Jon Van Dyke, professor of constitutional law at the University of Hawaii.
The Legislature failed to reach an agreement on how direct file will work last session. Defense attorney Brook Hart said voters are now being asked to sign a blank check without knowing how direct file will work or what procedures and protections will be in place. "Until we know what they are, you can't, as an informed citizen, make a judgment about whether to amend your Constitution," he said.
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The Legislature passed a bill last session putting constitutional Amendment No. 3 on the Nov. 5 general election ballot. It reads: Constitutional Amendment No. 3
"Shall Hawaii's constitutional provision regarding the initiation of criminal charges be amended to permit criminal charges for felonies to be initiated by a legal prosecuting officer through the filing of a signed, written information setting forth the charge in accordance with procedures and conditions to be provided by the Legislature?"
To be approved, the "yes" votes have to outnumber both the "no" votes and blank votes.
State of Hawaii
