HomeMy WebLinkAboutRES 150 Draft 01 2000-2002 COUNTY O~ I~AWAI`I STATE O~ I~AWAI `I
RESOLUTION NO. ~
RELATING TO A LEGISLATIVE PROPOSAL FOR INCLUSION IN THE 2002 HAWAII
STATE ASSOCIATION OF COUNTIES (HSAC) LEGISLATIVE PACKAGE THAT WOULD
AMEND THE HAWAII CONSTITUTION TO ALLOW DIRECT FILING OF FELONY
CHARGES AND MAKE IMPLEMENTING AMENDMENTS TO THE HAWAII REVISED
STATUTES.
WHEREAS, a person accused of a felony offense must be formally charged before being
taken to trial; and
WHEREAS, in Hawaii, this formal charge takes the form of either an indictment
returned by the grand jury or a complaint after a preliminary hearing before a district court judge;
and
WHEREAS, the annual estimated cost of work by the Prosecuting Attorney's Office,
County of Hawaii, associated with grand jury and preliminary hearing proceedings is $122,880;
and
WHEREAS, ten states have allowed, as a substitute for preliminary hearing and grand
jury proceedings, a more streamlined and less costly system of direct filing of felony charges;
and
WHEREAS, the direct file method usually involves the following steps:
(1) An enforcement officer provides an affidavit of probable cause to the prosecutor,
(2) The prosecutor reviews the police reports, including any exculpatory evidence, as
well as the affidavit,
(3) If satisfied there is sufficient evidence to support probable cause, the prosecutor
prepares a charging information and the affidavit and information are submitted to
a judge for review,
(4) The defense is allowed to challenge the probable cause determination by motion
to the judge, and
(5) If satisfied there is probable cause, the judge signs off on the information and the
case is ready for trial; and
WHEREAS, the direct file method requires amendment of the Hawaii Constitution to
authorize such use; and
WHEREAS, approval by all the counties is required to include a legislative proposal in
the HSAC legislative package; now, therefore,
BE IT RESOLVED by the Council of the County of Hawaii that it approves for
inclusion in the 2002 Hawaii State Association of Counties' Legislative Package: (1) a proposal
to amend the Hawaii Constitution to permit prosecutors and the attorney general to initiate
felony charges by filing a written information signed by the prosecutor or the attorney general
setting forth the charge in accordance with procedures and conditions to be provided by the state
legislature and (2) a proposal to make implementing amendments to the Hawaii Revised
Statutes should the constitutional amendment be ratified; and
BE IT FURTHER RESOLVED that the proposals are attached as Exhibits A and B; and
BE IT FINALLY RESOLVED that a copy of this Resolution be transmitted to the
President of the Hawaii State Association of Counties.
Dated at , Hawaii, this day of
Introduced by: _
~ ;
(BR)
COUNCIL ME ER COUN Y OF HA ' AI`I
LE/rf
COUNTY COUNCIL ROLL CALL VOTE
County of Hawaii AYES NOES ABS EX
Hilo, Hawaii ARAKAKI
CHUNG
I hereby certify that the foregoing RESOLUTION was by ELARIONOFF
the vote indicated to the right hereof adopted by the COUNCIL JACOBSQN
of the County of Hawaii on LEITHEAD-TODD
PISICCHIO
ATTEST:
TYLER
YAGONG
COUNTY CLERK CHAIRMAN & PRESIDING
OFFICER Reference: C-434
RESOLUTION NO. ® C~~
EXklIBIT A
JAN 2 31001
PROPOSING P_*~ND*~ENTS TO ARTICLE ~I, SECTION 10, Off' T::E e~TCA_ I
CONSTITUTION.
BE II° Er1ACI'ED ~Y T~ LEGISLATURE OF° 1~ ST'AT'E ®F }3A~'4'Ar1:
] SECTION 1. The purpose of this Act is to propose a:
2 amendment to article I, section 10, of the Constitu~ion of the
3 State of Hawaii to per~?it prosecutors and the attorney general
a to .initiate felony criminal charges by filing a writter_
informs*_ion signed by the prosecutor ~r the attorney genera'
~ setting forth the charge in accordance with procedures and
7 concitions to be provides by the state legislature.
~ SECTION 2. Article I, section 10, of the Constitution of
y she State of Hawaii is amended to read as follows:
]0 "INDICTMENT; PRELIMINARY BEARING; INFORMATION;
li ~ DOUBLE JEOPP.RDY; SEL~`°~INCRIMINATION
iz Section 10. No person shall be held to answer for a
l3 capital or otherwise infaanous crime, unless on a presentment or
indictment of a grand jury or upon a finding of probable cause
15 after a preliminary hearing held as provided by .law[,) or upon
l6 information in writing signed b,~ a legal prosecuting officer
ATCi-S(01)
Page 2 ~ ~
•
1 under conditions and in accordance with rocedures that the
2 leg~is_lature may provide, except in cases arising in the armed
3~ forces when in actual service in time of war or public danger;
a nor shall any person be subject for the same offense to be twice
5 put in jeopardy; nor shall any person be compelled in any
6 criminal case to be a witness against oneself."
7 SECTION 3. The question to be printed on the ballot shall
8. be as follows:
9 "Shall Hawaii's constitutional provision regarding the
~o initiation of criminal charges be arended to permit criminal
11 charges for felonies to be initiated by a legal prosecuting
12 officer through the filing of a signed, written information
13 setting-forth the charge in accordance with procedures and
~a conditions to be provided by the state legislature?"
15 SECTION 4. Constitutional material to be repealed is
16 bracketed. New constitutional material is underscored.
17 SECTION 5. This amendment shall take effect upon
18 compliance with article XVII, section 3, of the Constitution of
19 the State of Hawaii.
INTRODUCED BY•
Bx ~4
AT°G-8 (10)
' EXHIBIT. B '
. JAN 2 31001
RI"~ATING TO CRIMIN~ OF~15ES .
BE IT' ENAG~D ~Y T~ I~GiSIIsAATLJ~ OF ST'A`I`F OF FiA«'AII:
1 SvC°:ION 1. Chapter 806, Hawaii Revised Statutes, s
2 amended by adding a new section to be appropriately desocaated
3 ana to read as follows:
~ "§3 felonies - prosecution by information. (a?
s Exceut for murder in the first degree and attesnuted gnurder in
G the first decree, an offense designated as a felony o: which pnav
7 be ~unishable_by a term of ixaprisonment exceeding one veer or a
8 =ire exceeding 52,000, or both, gnu be arosecuted b~ written
y i:~forrriation signed by a legal prosecuting officer.
io (b) When offenses are urosecuted by infor~iation, the legal
. 1l prosecuting officer shall attach exhibits such as, but not
iZ limited to, affidavits sworn to before the legal prosecuting
13 officer, to the information. In addition, the exhibits gray
include, but are not limited to documents, photogras~hs,
i~ recordings, or other materials or copies thereof. Said exhibits
shall demonstrate the existence of probable cause to believe
that the offense or offenses charged in the infoi°ffiation have
LTG- 9 (01)
Page 2
i been comra~it~ed and that the defendant committed the offense or
2 offenses. The information and all exhibits shall be filed in
3 the circuit court.
a (c) When an information is filed, the court shall review
5 the infox~znation and its exhibits to determine whether there is
6 prcbable cause to believe that the defendant committed the
7 offense or offenses charged. If the court deteranines that there
.8 is probable cause to believe that the defendant committed the
9 offense or offenses charmed, the court shall set bail and direct
1o the clerk to issue a warrant for the arrest of the defendant.
11 (d) The defendant may move in circuit court to dismiss the
12 information on the grounds that the information and its
I3 attachments do not demonstrate the existenc-a~-cf probable cause
la to believe that the offense or offenses charged have been
15 committed or that the defendant committed the offense or '
IG offenses. Upon the filing of the motion to dismiss, the court
17 shall schedule a hearing to be held within a reasonable time.
IS (e) Rt the hearing on the motion to dismiss the
l9 information, the information and all its attachments shall be
20 before the court. The defendant may call witnesses and may
21 introduce evidence bearing on the question of the existence of
22 probable cause to charge the defendant. The court may, in its
ATC~-9 (O1)
Wage 3
1 discretion, perTnit the State to call witnesses, introduce
2 evidence, or otherwise supplement the exhibits appended to the
3 information.
4 (f) After conducting the hearing on the motion to dismiss
5 the information, the court shall determine from an examination
6 of the information and its attachments, and in licrht of any
~ evidence presented at the hearing, whether there exists probable
8 cause to h~plieve th:.t the off?rxse or offenses charged have been
9 committed and that the defendant committed the offense or
10 offenses A finding of the existence of probable cause may be
it based in whoi2 or in dart u~o: hearsay evidence or on evidence
12 that may ultimately be ruled to be inadmissible at the trial.
13 For the purposes of this section, "legal prosecuting
la officer" means the attorney ~ceneral or a prosecuting attorney,
15 deputy attorney general, depu ~ ,prosecuting attorney or a person
16 designated and authorized by the attorney general or prosecuting
17 attorney to act as a depot attorney general or deputy
18 prosecuting attorney."
19 SECTION 2. Section 641-13, Hawaii Revised Statutes, is
20 amended ~to read as follows
21 ^641-13 ~y State in cx~i~nal cases. An appeal may be
22 taken. by and on behalf of the State frOYg the district or circuit
Page 4
1 courts to the supreme court, subject to chapter 602, in all
s criminal ~ cases, . in the following instances
3 (1) From an order or judgment quashing, setting aside, or
a sustaining a motion to dismiss, any indictment,
5 information or complaint or any count thereof;
6 ;2) rrom an order or judgment, sustaining a special plea
~ in bar, or dismissing the case where the defendant has
8 not been put in jeopardy;
.9 ( 3 ) r ragn an order granting a new trial;
io (4) From an order arresting judgment;
11 (5) Frolti a ruling on a question of law adverse to the
12 State where the defendant was convicted and appeals
13 from the j udgment;
~a (6) Frogn the sentence,. on the ground that it is illegal;
is {7) From a pretrial order granting a motion for the
iG suppression of evidence, including a confession or
]7 admission, or the return of property in which case the
18 intermediate appellate court or the supreme court, as
19 the case may be, shall give priority to such an appeal
20 and the order shall be stayed pending the outcogne of
21 the appeal; ~ ~ -
ATG- 9 (01)
Pages ~V.
1 (8) From an order denying a request by the State for
2 protective order for nondisclosure of witness for
3 ~ their personal safety under Rule 16(e)(4) of the
A Hawaii Rules of Penal Procedure, in which case the
5 intermediate appellate. court or the supreme court, as
6 the case may be, shall give priority to such appeal
~ and the order shall be stayed pending outcome of such
g appeal;
9 (g) E`rom a judgment of acquittal following a jury verdict
10 of guilty."
li SECTION 3. Section 806-6, Hawaii Remised Statutes, is
12 amended to read as follows:
13 "806-6 Use of; furnishing of copy. In all cases of
14 offenses against the laws of the State brought in the first
1~ instance in a court of record, the accused shall be arraigned
16 and prosecuted upon an infoxznation, complaint, or indictment as
17 soon after the commitment of the offense of which he is accused
1s as may be expedient.
19 In all cases of felony the defendant shall be.furnished
20 before arraignment with a copy of the information and all
~i attachments appended to it, the complaint, or the indictment
22 found against hire. "
T vn ~ / /1 1 ~
Page6
i SECTION 4. New statutory material is underscored.
Z SECTION S. This Act shall take effect ninety days after
3 the ratification of a constitutional amendment permitting
' a initiation of criminal charges by the filing of a written
s information signed by legal prosecuting officer.
INTRODUCED EY:
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ATG-9(01)
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