Haw. R. Penal P. (front matter)

HAWAIʻI RULES

OF PENAL PROCEDURE

(SCRU-11-0000083)

Adopted and Promulgated by

the Supreme Court

of the State of Hawaiʻi

With Amendments as Noted

Comments and commentary are provided by the rules committee

for interpretation assistance. The comments and commentary express

the view of the committee and are not binding on the courts.

The Judiciary

State of Hawaiʻi

HAWAIʻI RULES OF PENAL PROCEDURE

I. SCOPE, PURPOSE AND CONSTRUCTION

AUTOMATION

(a) Scope of rules

(b) Interpretation and enforcement of rules

(c) Effect of Hawaiʻi Electronic Filing and Service Rules

(d) Effect of automation on processes and procedures

(a) General

(b) General requirements

(1) Quality and size of paper, and style of type

(2) Margins

(3) Spacing

(4) Two-sided copies

(5) Pagination

(6) Signature

(7) Exhibits

(c) No flyleaf shall be attached

(d) Form of first page of a document

(e) Contents of first paragraph

(f) Two or more documents filed together

(g) Signing of pleadings and other documents

(h) Forms furnished by the court

II. INITIATION OF THE CASE

(a) Form

(b) To Whom Present

(c) Warrant issuance on oral statement

(d) Duplicate warrants on oral authorization

(a) In general

(1) Upon arrest

(2) Probable cause determination upon arrest without a warrant

(3) Consolidation with other proceedings

(b) Offenses other than felony

(1) Arraignment

(2) Plea

(3) Jury trial election

(4) Trial

(5) Sentence

(c) Felonies

(1) Initial appearance; scheduling of preliminary hearing

(2) Waiver of preliminary hearing

(3) Time for preliminary hearing; release upon failure of timely

disposition

(4) Evidence

(5) Duration of hearing; continuance

(6) Disposition

(7) Time for commitment to circuit court

(8) Bail

(a) Summoning grand juries

(b) Objections to grand jury and grand jurors

(1) Challenges

(2) Motion to dismiss

(c) Foreperson and deputy foreperson

(d) Who may be present

(e) Secrecy of proceedings and disclosure

(f) Finding and return of indictment

(g) Discharge and excuse

(h) Oath or affirmation

III. THE CHARGE

(a) Use of indictment, information, or complaint

(b) When felony may be prosecuted by complaint

(c) Waiver of indictment

(d) Nature and contents

(e) Surplusage

(f) Amendment

(g) Bill of particulars

(h) Court in which charge filed

(a) Joinder of offenses

(b) Joinder of defendants

(c) Failure to join related offenses

IV. ARRAIGNMENT AND PREPARATION FOR TRIAL

(a) Methods

(1) Summons

(2) Warrant

(3) Delivery for service

(i) Warrant

(ii) Summons

(4) Number of copies

(5) Failure to appear

(b) Form

(1) Warrant

(2) Summons

(c) Execution or service and return

(1) By whom

(2) Territorial limits

(3) Manner

(i) Warrant

(ii) Summons

(4) Return

(i) Warrant

(ii) Summons

(a) Alternatives

(1) In General

(2) Conditional Pleas

(b) No contest

(c) Advice to defendant

(d) Advisement Concerning Alien Status

(e) Insuring that the plea is voluntary

(f) Plea agreement

(1) In general

(2) Notice of plea agreement

(3) Warning to defendant

(4) Inadmissibility of plea discussions

(g) Determining accuracy of plea

OBJECTIONS

(a) Pleadings and motions

(b) Pretrial motions

(c) Motion date

(d) Notice by the prosecution of the intention to use evidence

(1) At the discretion of the prosecution

(2) At the request of the defendant

(e) Ruling on motion

(f) Effect of failure to raise defenses or objections

(g) Effect of determination

(a) Notice by defendant

(b) Disclosure of information and witnesses

(c) Time of giving information

(d) Continuing duty to disclose

(e) Failure to comply

(f) Exceptions

(a) Motion for firm trial setting

(b) Motion for advancement or continuance of trial

(c) Application of term

(a) Generally

(b) Related offenses

(a) When taken

(b) Notice of taking

(c) Payment of expenses

(d) How taken

(e) Use

(f) Objections to deposition testimony

(g) Unavailability

(h) Deposition by agreement not precluded

(a) Applicability

(b) Disclosure by the prosecution

(1) Disclosure of matters within prosecution’s possession

(2) Disclosure of matters not within prosecution’s possession

(3) Definition

(c) Disclosure by the defendant

(1) Submission to tests, examinations or inspections

(2) Disclosure of materials and information

(3) Disclosure of defenses

(d) Discretionary disclosure

(e) Regulation of discovery

(1) Performance of obligations

(2) Continuing duty to disclose

(3) Custody of materials

(4) Protective orders

(5) Matters not subject to disclosure

(i) Work product

(ii) Informants

(6) In camera proceedings

(7) Impeding investigations

(8) Duty to confer and requirement for filing of written stipulation

(9) Sanctions

AND CRIMINAL TRAFFIC CASES

(a) Applicability

(b) Request for discovery

(c) Motion to compel discovery

(a) For attendance of witnesses; form; issuance

(b) For production of documentary evidence and of objects

(c) Service

(d) Service by facsimile transmission

(e) Place of service

(f) For taking deposition; place of examination

(1) Issuance

(2) Place

(g) Contempt

V. VENUE

(a) For prejudice in the circuit

(b) Transfer in other cases

(c) Proceedings on transfer

VI. TRIAL

(a) Trial by jury

(b) Jury of less than twelve

(c) Trial without a jury

(a) Conduct of jury selection

(b) Peremptory challenges

(c) Alternate jurors

(d) Sequence for challenging of jurors

(e) Note taking by jurors

(a) Sequence of presentation

(b) Fair argument

(c) Presence of counsel at verdict

(d) Limitations on number of counsel

(a) During trial

(b) After verdict or finding of guilt

(a) Expert witnesses

(b) Interpreters

(a) Motion before submission to jury

(b) Reservation of decision on motion

(c) Motion after discharge of jury

(a) Pre-instruction

(b) Requests

(c) Settlement

(d) Court’s instruction

(e) Oral comment

(f) Instructions and objections

(g) Copy of instructions for jurors

(a) Return

(b) Several defendants

(c) Poll of jury

VII. JUDGMENT

(a) Sentence

(b) Notification of right to appeal

(c) Judgments

(1) In the Circuit Court

(2) In the District Court

(d) Withdrawal of Plea

(a) Correction of Illegal Sentence

(b) Reduction of Sentence

VIII. ORDERS

(a) Forms of stipulations and orders

(b) Stipulations extending time

IX. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

(a) Proceedings and grounds

(1) From judgment

(2) From custody

(3) Inapplicability

(b) Institution of proceedings

(c) Form and content of petition

(1) In General

(2) Nonconforming Petition

(3) Separate Cause of Action

(d) Response

(e) Amendment and withdrawal of petition

(f) Hearings

(g) Disposition

(1) In favor of the Petitioner

(2) Against the Petitioner

(3) The Judgment

(h) Review

(i) Indigents

(a) Authority to issue warrant

(b) Property which may be seized with a warrant

(c) Issuance and contents

(d) Execution and return with inventory

(e) Motion to return property

(f) Motion to suppress

(g) Return of documents to clerk

(h) Warrant issuance on oral statements

(i) Duplicate warrants on oral authorization

(j) Scope

(a) Classification

(b) Stamp by clerk

(c) Docket entry and filing

(d) Original kept on file

(e) No rejection of documents for filing

(f) Receipt or filing of proposed orders

(1) Paper record

(2) JIMS record

DOCUMENTS

(a) Processing post-conviction documents

(b) Disposition

X. GENERAL PROVISIONS

(a) Presence required

(b) Continued presence not required

(c) Presence not required

(d) Presence may be waived for non-felony offenses

(e) Presence may be by video conference

(a) Itemized Bill; Copies

(b) Filing and Service

(1) Criminal Cases

(2) Special Proceedings

(c) Requests under seal

(d) Untimely requests

(e) Objections and Reply

(f) Multiple Cases

LAW, AND ORDER; ENTRY OF ORDER

(a) In the circuit court

(1) Preparation of findings of fact, conclusions of law and order

(2) Securing approval from opposing party

(3) Objection as to form

(4) Settlement

(5) No effect on right to appeal

(6) Entry

(b) In the District Court

(a) Computation

(b) Enlargement

(c) For motions; affidavits or declarations

(d) Additional time after service by mail

(a) Bail

(b) Bond

(a) Form

(b) Required notice of no opposition

(c) Filings in opposition

(d) Declaration in lieu of affidavit

(a) By prosecutor

(b) By court

(c) Excluded periods

(d) Per se excludable and includable periods of time for purposes of

subsection (c)(1) of this rule

THEREOF; NOTICE OF ENTRY OF ORDERS AND

JUDGMENTS; FILING OF DOCUMENTS

(a) Service: When required

(b) Service: How made

(1) Service of complaint, indictment, bench warrant, summons,

or subpoena

(2) Service of other documents

(3) Service of orders and judgment in District Court JIMS

criminal cases

(4) Delivery and facsimile transmission: how made

(5) Service: when completed

(c) Proof of service

(d) Relief upon failure to receive due notice

(e) Notice of entry of orders and judgments

(f) Filing

LISTS; WITHDRAWAL OF EXHIBITS

(a) Minutes

(b) Exhibits

(1) Circuit court

(2) District court

(a) Harmless error

(b) Plain error

(a) Required notice

(b) Effect of failure to appear or prepare

(a) Courts

(b) Proceedings

(c) Application of terms

(d) Conflict

Form A Petition for Post-Conviction Relief (Rule 40, HRPP)

Petition to Vacate, Set Aside, or Correct Judgment

or to Release Petitioner from Custody

Form B Request to Proceed Without Paying Filing Fees

Form C Waiver of Physical Presence; Submission of Plea

Form D Waiver of Physical Presence; Submission of Plea

Pro Se Defendant

Form E Waiver of Physical Presence; Submission of Plea;

Pro Se Defendant; Attachment “A”

Form F Request for Attorney’s Fees

Request for Attorney’s Costs

Form G Billing Recap

Form H Hourly Worksheet

Form I Other Expense Worksheet

Form J Bail/Bond Receipt, Acknowledgment, and Notice to Appear

Form K Change of Plea

Form L Waiver of Trial by Jury

Form M Waiver of Indictment

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HAWAIʻI RULES OF PENAL PROCEDURE

I. SCOPE, PURPOSE

AND CONSTRUCTION