Understanding Criminal Defense in Hawaii: case posture, evidence timing, and next steps

Hawaii criminal law operates under the Hawaii Penal Code (HRS §§ 701-712 et seq.) within a four-circuit court system with a unique numerical gap: Hawaii's judicial circuits are numbered 1 (O'ahu/Honolulu), 2 (Maui County), 3 (Hawai'i County/Big Island), and 5 (Kaua'i County) — with no 4th Circuit, a historical artifact of how the circuit courts were established. The circuit courts handle felony prosecutions; district courts handle misdemeanors and petty misdemeanors. The Hawaii Intermediate Court of Appeals (ICA) hears criminal appeals as of right from the circuit courts; the Hawaii Supreme Court provides discretionary review. Hawaii's criminal defense practice has a distinctive character shaped by three realities: the parallel jurisdiction of military courts (the UCMJ) for crimes involving active-duty service members; the federal prosecution of crimes on the extensive federal land in Hawaii (Hawaii Volcanoes National Park; Haleakalā National Park; the military installations covering roughly 5% of O'ahu's land area); and the state's unique "right to testify" doctrine from Tachibana v. State, 79 Haw. 226 (1995).

The Tachibana colloquy — developed by the Hawaii Supreme Court in 1995 — requires trial courts to personally advise defendants of their constitutional right to testify before the close of evidence in any criminal trial, and to conduct an on-the-record colloquy with the defendant at that time to confirm that any waiver of the right to testify is knowing, intelligent, and voluntary. The Tachibana requirement is unique to Hawaii and more protective than federal constitutional requirements — the US Supreme Court has not mandated such a colloquy under the Fifth Amendment, but Hawaii courts have imposed it as a matter of Hawaii constitutional criminal procedure. Failure to conduct the Tachibana colloquy is grounds for reversal of a conviction — it has generated a significant body of Hawaii appellate precedent and is a routine feature of criminal defense practice in all four circuits.