STAND. COM. REP. 2617

Honolulu, Hawaii

, 2004

RE: S.B. No. 2851

S.D. 1

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred S.B. No. 2851 entitled:

"A BILL FOR AN ACT PROPOSING AN AMENDMENT TO ARTICLE I OF THE CONSTITUTION OF THE STATE OF HAWAII,"

begs leave to report as follows:

The purpose of this measure is to propose a constitutional amendment to allow the admissibility of evidence derived from consensual conversations between law enforcement officers and other persons.

Your Committee has amended this measure by deleting its contents and inserting a provision for proposing a constitutional amendment to permit the initiation of criminal felony prosecutions upon the filing of a written information by prosecutors or the Attorney General.

Testimony in support of this measure was received from the Office of the Attorney General, Honolulu Prosecuting Attorney, Hawaii County Office of the Prosecuting Attorney, Hawaii County Police Department, Maui Police Department, and Hawaii Law Enforcement Coalition. Testimony in opposition was received from the Office of the Public Defender, Hawaii State AFL-CIO, ACLU of Hawaii, and ILWU Local 142.

This measure, as amended, was originally passed by the Legislature in 2002, was placed on the ballot in the 2002 general election and ratified by the voters. However, your Committee finds that this constitutional amendment may be necessary since the Hawaii Supreme Court struck down the ratification of the direct filing constitutional amendment because of irregularities in the publication of the text of the amendment. Therefore, this measure is an effort to place the proposal on the ballot again, although the Attorney General is of the opinion that this is not necessary.

Current law requires that felony prosecutions be initiated by grand jury indictment or upon finding of probable cause following a preliminary hearing. This measure extends the authority to initiate criminal felony prosecutions to prosecutors and the Attorney General upon the filing of written information in accordance with procedures and conditions provided by the State Legislature.

This measure proposes a constitutional amendment to allow an alternative method of initiating a felony prosecution. This direct filing method of initiating a prosecution, which is used in other states, involves the submission to the court of a document, also known as a written information, that is similar to a complaint and that is supported by affidavits and other documentary evidence. If a judge finds probable cause based upon the written information, a warrant is issued and the case proceeds to trial.

Your Committee finds that the use of this alternative method of prosecuting felonies will result in cost savings to the State and counties and allows for better use of law enforcement personnel and other resources. This measure does not eliminate safeguards for the accused because probable cause is still necessary to support the issuance of a warrant, and a finding of probable cause will be subject to challenge in a hearing. Further, because prosecutions will be initiated in a more timely fashion, cases will proceed more quickly to trial.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2851, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2851, S.D. 1, and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Hawaiian Affairs,

____________________________

COLLEEN HANABUSA, Chair