A bill to codify how charges are filed in serious felony cases passed the state Senate Judiciary Committee on Friday.
Senate Bill 36 seeks to allow the long-standing practice of initiating prosecution of a felony case by complaint upon a finding of probable cause after a preliminary hearing after the Hawaii Supreme Court in September 2022 ruled all serious felony cases — for example murder, robbery, sexual assault, etc. — must be brought via grand jury indictment only.
Prior to the September ruling, it had been “settled practice and procedure” that probable cause to support felony criminal charges could be initiated via grand jury indictment, information charging, or complaint and preliminary hearing. Since the ruling was handed down, prosecutors have only been able to charge the serious felony cases via grand jury.
At the time of the decision, the Kona grand jury met only once a month. Since the ruling, that has been changed to once a week.
While the court’s decision was final, the opinion did say the state Legislature could still change the law.
The majority ruling, in part, read, “If the Legislature wants to strip people of the grand jury protections afforded by HRS § 801-1, it is free to do so. It may expressly repeal HRS § 801-1.”
Senate Bill 36 will do just that and clarify that felony prosecutions may be initiated by one of the three methods used for decades by prosecutors. The measure was introduced by Sens. Karl Rhoads, Stanley Chang, Gilbert Keith-Aragan, Angus McKelvey, Michelle Kidani, Donna Mercado Kim and Maile Shimabukuro.
The act states “those methods would be complaint through the preliminary hearing process, indictment by grand jury or if the felony charge is eligible under section 806-83, Hawaii Revised Statutes, written information pursuant to the Hawaii State Constitution and chapter 806, Hawaii Revised Statutes.”
The bill also stipulates that multiple attempts to initiate prosecution of the same felony offense by presenting the same evidence to a grand jury or judge, or both, either through the same initial charging method or an alternative method, or in different forums, shall not be permitted, except in certain circumstances.
The Department of the Attorney General and prosecuting attorneys from Honolulu, Maui, Kauai and Hawaii counties all submitted testimony supporting the bill.
Hawaii County Prosecuting Attorney Kelden Waltjen testified that Senate Bill 36 was drafted with the intent to reinstate prosecutors’ authority to initiate felony prosecutions by way of complaint and preliminary hearing. It is also establishes limitations on the initiation of a subsequent felony prosecution, based on the same evidence, after a prior denial of a probable cause finding.
“S.B. 36 is consistent with the intent of the Hawaii Constitution, restores criminal procedure practices that have been in place for the last 40 years, supports and protects victims and witnesses of crime, affords the criminally accused an opportunity to participate in the initiation of felony criminal proceedings, and provides law enforcement with the resources necessary to ensure public safety,” he said.
The state Office of the Public Defender offered testimony both in support and in opposition, and offered an amendment that would require prosecutors inform to a defendant of any prior attempt to seek a true bill or a finding of probable cause on the same matter.
“Right now, that’s not in the law and that’s not required,” said William Bento with the Office of the Public Defender. “And that becomes even more important if the bill passes with the two exceptions that is has that allows it to go back before the grand jury.”
The Judicial Committee unanimously passed the bill without amendments. A companion bill in the House, HB 810, passed its first reading and has not yet been scheduled for any other hearings. It was introduced by Rep. Scott Saiki.
“I spent about two months this summer going back and forth with prosecutors and the public defenders. It’s a compromise. I think it’s considerably better from the defense point-of-view than the current situation is, but I understand their concerns. On the flip side, the prosecutors aren’t totally thrilled with it, so, my recommendation is to leave it alone and just pass it out,” Rhoads said before the Senate Judiciary Committee’s vote Friday.