New Hawaii law clarifies procedures for filing criminal complaints

A newly enacted law that clarifies the process for filing criminal complaints will give prosecutors across the state a chance to refile charges in more than 1,000 misdemeanor cases that were dismissed in the wake of a December ruling by the Hawaii Supreme Court.

For decades, established court practices allowed a single prosecutor’s signature to validate complaints notifying defendants of the criminal charges being brought against them. But in a Dec. 10 ruling in the case known as State v. Thompson, the high court made it clear that prosecutors must follow a 130-year-old procedural law requiring a signed affidavit or official declaration from the complaining party.

That decision led to the dismissal of over 1,000 misdemeanor and petty misdemeanor cases in Honolulu and hundreds of others on the neighbor islands, according to Honolulu Prosecuting Attorney Steve Alm. Most of the cases were dismissed without prejudice, meaning prosecutors are able to refile charges and will in the majority of cases on Oahu, he said.

Alm introduced the clarifying legislation as part of the Department of the Prosecuting Attorney’s 2022 package of legislative proposals to state lawmakers. House Bill 1541, which Alm said “gives the courts clear instruction that the signature of the prosecuting attorney is all that is required to file a valid criminal complaint,” quickly passed the state House on March 4 and the Senate on March 21, and was signed into law as Act 2 by Gov. David Ige on Monday.

“The net effect of passing the bill will just take us back to what it was before Thompson, where we were having the prosecutors signing the complaints based on a review of all the evidence, including witness statements, police statements, but it was the prosecutor doing it,” Alm said. “That’s the way it had been done for decades. So we are just going to go back to that — that’s the beauty of this.”

The Dec. 10 court opinion asserted that Hawaii Revised Statutes 805-1 requires prosecutors to ensure that a criminal complaint was supported by either the complainant’s signature or a declaration submitted in lieu of an affidavit.

The court was considering a 2017 misdemeanor domestic abuse case against a Kona man that was dismissed because it lacked a probable cause affidavit and other evidence. That dismissal was set aside by the Intermediate Court of Appeals in June 2020.

The defendant, Corey Thompson, had appealed to a Family Court judge on the basis that before he was charged and summoned to court, the state did not submit a probable-cause affidavit, only a complaint signed by a deputy prosecuting attorney. After the Appeals Court’s decision, Thompson’s attorney made a formal request that the Hawaii Supreme Court review the case.

In reversing the Appeals Court ruling, the high court wrote, “Critically, the complaint was neither signed by a complainant nor supported by a declaration. The State consequently did not comply with its statutory obligation to perfect the complaint. In turn, the family court erred in issuing a penal summons.”

The opinion was issued by Chief Justice Mark Reck­tenwald; Associate Justices Paula Nakayama, Sabrina McKenna and Michael Wilson; and acting Associate Justice Rowena Somerville.

After the Thompson ruling in December, prosecutors were concerned how it would affect sex assault and domestic violence victims, who are often reluctant to pursue charges.

Alm said there are situations in which police get a statement from a victim when the crime occurs, then have to formally write up the complaint and locate the victim to sign it when the suspect may still be near. It could put victims already managing trauma in “real danger,” he said.

“Requiring sexual assault and domestic violence victims to sign a criminal complaint against their attackers would lead to a sharp decrease in reported attacks and would cause victims to relive the trauma they will spend the rest of their lives working to manage,” said Robert Cavaco, president of the State of Hawaii Organization of Police Officers.

“That’s unfair and cruel. The new law ensures those victims do not need to reexperience those nightmares, while allowing law enforcement and prosecutors to proceed with holding those criminals accountable.”

Interim Honolulu Police Chief Rade Vanic said the department is “pleased that the signature of the prosecuting attorney is sufficient for filing a valid criminal complaint in misdemeanor and petty misdemeanor cases.”

“In addition to streamlining the process, Act 2 will ensure that the rights of the accused are protected while sparing victims from having to relive traumatic events,” Vanic said.

Shortly after the Supreme Court decision, HPD added a declaration that is now automatically attached to all police reports, he said. The declaration reads, “I, (officer’s name), police officer, declare under penalty of law that the foregoing is true and correct to the best of my knowledge and belief.”

Kauai County Prosecutor Rebecca Like said that after the Dec. 10 ruling, her office fielded a “multitude” of motions to dismiss charges. Inconsistent rulings caused confusion and created a lack of clarity about what was required in a written complaint, she said.

“The passage of this bill will allow our office to focus on prosecuting offenses without worrying about cases getting dismissed depending on which judge is sitting,” Like said. “This act makes it clear what those requirements are, and we appreciate the governor’s swift signing of this bill.”

Hawaii County Prosecuting Attorney Kelden B.A. Waltjen said Act 2 clarifies the procedures and statutory requirements for initiating criminal complaints, including permitting prosecutors to sign a complaint instead of requiring the signature of the victim or the arresting police officer.

The new law “addresses the inconsistent application of the Hawaii Supreme Court’s decision in State v. Thompson, which has resulted in the dismissal of criminal cases on technicalities across our state,” Waltjen said.

Maui Prosecuting Attorney Andrew H. Martin did not immediately reply Tuesday to a Honolulu Star-Advertiser request for comment.

Alm credited the collaboration among the state Department of the Attorney General, the state Department of Transportation, county prosecutors and police departments, and testimony from the Domestic Violence Action Center, Mothers Against Drunk Driving, Retail Merchants of Hawaii and the Hawaii State Coalition Against Domestic Violence as critical to HB 1541’s swift passage and enactment.

Despite the time-consuming challenge of refiling the cases that were dismissed in the interim, Alm’s office plans to pursue the majority of prosecutions that were thrown out.

“We’ll do our best because we want to try and save as many of these as we can,” he said.

Vanic said HPD is working with Alm’s office on the process for resurrecting the dismissed cases.

“HPD continues to work with prosecutors to review past cases and to complete declarations for the cases that will be refiled,” he said.