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A plan to allow tourists who are ripped off during their Hawaii vacations to testify against the suspects by way of videoconferencing was rejected by state lawmakers this week, and it appears the idea is dead for the year.
Maui County Deputy Prosecutor Richard Minatoya said it is often difficult or impossible to prosecute property crimes against tourists because court rules of evidence demand that victims travel back to Hawaii to testify. Prosecutors say visitors usually can’t do that, and law enforcement officials want to use videoconferencing instead.
County prosecutors on Maui, Kauai and Hawaii island all urged lawmakers this year to approve House Bill 792 to amend the rules of evidence to allow testimony via videoconferencing in misdemeanor and petty misdemeanor cases. The maximum penalty for a conviction on those charges is a year in jail or less.
Videoconferencing in criminal cases was also endorsed by the Hawaii State Association of Counties. Hawaii County Council member Dennis "Fresh" Onishi said the bill would show tourists that Hawaii cares about them.
It would also send a message to thieves that "we’re not going to let you guys take advantage of our tourists and nothing’s going to happen to you," Onishi said. "We need to kind of put our foot down."
The state Office of the Public Defender disagrees, warning it would be unconstitutional to rely on videoconference testimony in misdemeanor and petty misdemeanor cases. The public defender cites the "confrontation clause" of the Sixth Amendment to the U.S. Constitution, meaning the right of criminal defendants to confront witnesses against them at trial. A similar right is also part of the state Constitution.
If the state were to allow courts to use a transmission similar to Skype during criminal trials, judges and juries would be prevented from observing body language that could be critical to establishing witness-related credibility, according to written testimony from the public defender.
"It is questionable whether any trial court in the state would approve alternative testimony under this measure," and any conviction using videoconference testimony "will immediately come under constitutional attack," according to the public defender.
Judge Glenn J. Kim, chairman of the Hawaii Supreme Court’s Committee on Rules of Evidence, also rejected the bill as "unnecessary and violative of the Constitution."
Senate Judiciary and Labor Chairman Gil Keith-Agaran refused to approve the bill Tuesday. Lawmakers can reconsider the measure next year, but it is unlikely to advance any further this session.
Keith-Agaran (D, Waihee-Wailuku-Kahului) agrees that victimization of tourists is a problem but said using teleconference testimony in prosecutions "in all likelihood still violates the Sixth Amendment."
"The confrontation clause is a serious issue," Keith-Agaran said. "In the view of the Evidence Committee, the confrontation clause requires physical face-to-face confrontation between the witness and the person accused."
Although some argue that technology has reached a point where teleconferencing should be allowed, "the Judiciary’s committee is still uncomfortable with that notion given the Supreme Court’s decision and federal court’s decisions," Keith-Agaran said.
Still, the idea of using videoconferencing to allow tourists their day in court has its supporters.
Even seemingly "minor" nonviolent crimes against vacationers can have a huge impact, said Jessica Lani Rich, president and executive director of the Visitor Aloha Society of Hawaii.
A common example is a tourist in Waikiki or on the North Shore who leaves the rental car keys on the beach to go snorkeling, only to return to find their car and their belongings — wallet, clothes, identification and cash — are gone, she said.
"They come out and their car is taken, all of their items are taken, and they are in their swimsuit," Rich said. "All they want to do is go home."
The Visitor Aloha Society helps those tourists return home safely, but "most of them say that they don’t have the money to come back to Hawaii to testify, and they don’t have the time," Rich said.
Kauai Prosecutor Justin F. Kollar said in written testimony that many thieves specifically target vehicles or hotel rooms used by tourists because they know the authorities face major logistical challenges in getting the tourists to testify.