Video testimony can bring justice

Thieves know that Hawaii tourists can be easy marks for property crimes. Rules of evidence require that a victim return to Hawaii to testify in person against the alleged offender, assuming that a suspect is arrested in the first place. Many victims are unwilling to make this costly, time-consuming return trip, meaning that they leave Hawaii with unhappy memories and little legal recourse — and without the wallets, laptops and other valuables lost in car break-ins and other crimes.

The current system tilts in favor of the alleged criminals, and arguably increases the likelihood that tourists will be targeted for property crimes — given that they are far less likely than residents to show up in court to testify against the accused. Hawaii’s dependency on tourism makes this an important public safety issue, as well as an economic one. State lawmakers must keep trying to devise a solution that makes it easier for visitors to testify in court after they are victimized, while protecting due process rights of the accused.

Prosecutors have advocated for the use of two-way video conferencing as a means of obtaining testimony from far-away victims in limited cases, an idea that has merit and should be explored further — despite being shot down in the Legislature last week.

Technological advances that make high-definition video and audio connections continuously, crisply reliable and vivid increase the viability of this method, which already is approved in some cases where the testimony comes from a child who may be traumatized by confronting the accused in person.

County prosecutors on Maui, Kauai and Hawaii island all urged state lawmakers to approve House Bill 792, which would have amended Hawaii Rules of Evidence to authorize nonresident victims to testify in misdemeanor or petty-misdemeanor property criminal proceedings by a live two-way video connection. The Hawaii State Association of Counties also endorsed the measure.

Testimony in favor rightly noted that tourists are the victims in a substantial percentage of the property crimes committed in Hawaii, that they are targeted specifically due to the logistical barriers to prosecution, and that Hawaii Revised Statutes Section 801D-7 already gives victims and witnesses the right to testify at trial via closed-circuit video — but that right has never been enabled by the necessary amendment to the Hawaii Rules of Evidence that passage of House Bill 792 would have accomplished.

The state Office of the Public Defender opposed the measure as an encroachment on the constitutional right of defendants to confront their accusers in court. The chairman of the Hawaii Supreme Court’s Committee on Rules of Evidence agreed, citing case law to assert that a two-way video feed was not an acceptable substitute for a face-to-face court encounter. "The Sixth Amendment’s guarantee of the right to confront one’s accuser is most certainly compromised when the confrontation occurs through an electronic medium," that influential opposition testimony concluded.

These are serious concerns that understandably gave lawmakers pause. However, not all the issues seem well-settled, given divergent legal precedents cited by supporters and opponents of the bill.

Given the importance of this issue in Hawaii, lawmakers should be willing to test this means of obtaining testimony in limited cases, as outlined in the failed bill.

This problem is not going away. Alternative approaches are overdue to ensure that justice is done in theft cases where tourists are ripped off precisely because they are tourists — and the thieves know they are unlikely to return to Hawaii for a court date.

A justice system so skewed against the victim could use some high-tech refinement.