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State Senate passes fix for felony charging rules

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The State Senate passed a measure today intended to address the Hawaii Supreme Court ruling that preliminary hearings are not a lawful method for charging major felonies including murder.

Senate Committee on the Judiciary Chair Karl Rhoads worked with the four county prosecutors, the State Attorney General’s Office, and the State Public Defenders’ Office during the interim to draft S.B. 36., according to a Senate news release.

The bill makes clear that a person may be tried and sentenced for certain alleged felony offenses through the complaint and preliminary hearing process, indictment by a grand jury, or by written information, just as it had been done for four decades before the Sept. 8 Hawaii high court ruling.

It also specifies that repeated attempts to start a felony prosecution for the same offense, either through the same initial charging method, or an alternative method, or in different forums, is not allowed except in certain circumstances, according to the news release.

“Leading up to this legislative session, the Senate worked diligently with the relevant stakeholders to find a solution to the concerns expressed in the State v. Obrero decision,” said Rhoads, in a statement. “We believe S.B. 36 adequately addresses the issues raised by county prosecutors, and we look forward to advancing this bill to the State House for further consideration and approval.”

The bill now moves to the state House of Representatives for further consideration.

In the Sept. 8 Obrero decision, the Supreme Court justices ruled that prosecutors who fail to obtain a grand jury indictment against a suspect cannot rely on alternatives such as information charging or a preliminary hearing to file felony charges.

The Hawaii Supreme Court’s ruling was based on Section 801-1 of the Hawaii Revised Statutes that was “inadvertently” not amended since 1905, according to the release.

Prior to 1982 the Hawaii Constitution was identical to the U.S. Constitution in requiring grand jury presentments or indictments for felony prosecutions. But a 1982 amendment to the state Constitution rolled back the requirement for a grand jury indictment in felony prosecutions.

The ruling triggered dismissals of ongoing prosecutions throughout the state, forcing prosecutors to re-charge cases.

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