A measure aimed at resolving issues over how serious felony cases are charged is headed to the House for consideration.
Senate Bill 36 passed a third reading on the full Senate floor Thursday after making its way through the Committee on Judiciary on Jan. 27.
The measure, as currently proposed, seeks to restore the long-standing practice of initiating prosecution of a felony case by complaint upon a finding of probable cause after a preliminary hearing after the Hawaii Supreme Court in September 2022 ruled all serious felony cases — for example murder, robbery, sexual assault, etc. — must be brought via grand jury indictment only.
The court’s decision was based on a single statute, Section 801-1 of the Hawaii Revised Statutes, that remained unchanged since 1905 and was inadvertently not amended, according to the state Senate. That’s despite voters approving an amendment in 1982 that expressly allowed charging via complaint and preliminary hearings and additional amendments thereafter. Further, the Hawaii Supreme Court, in 1983, established its own court rules setting out the requirements for charing felonies via complaint and preliminary hearings.
To resolve these issues, the Senate, led by Judiciary Chair Karl Rhoads (D-Oahu) worked with the four county prosecutors, the state Attorney General’s Office, and the state Public Defenders’ Office during to draft Senate Bill 36.
The bill specifies 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.
It also specifies that multiple attempts to initiate a felony prosecution for the same offense, either through the same initial charging method, or an alternative method, or in different forums, shall not be permitted except in certain circumstances.
“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,” Rhoads said in a prepared 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.”
Hawaii County Prosecuting Attorney Kelden Waltjen in testimony on Senate Bill 36 said the measure “is consistent with the intent of the Hawaii Constitution, restores criminal procedure practices that have been in place for the last 40 years, supports and protects victims and witnesses of crime, affords the criminally accused an opportunity to participate in the initiation of felony criminal proceedings, and provides law enforcement with the resources necessary to ensure public safety.”
Senate Bill 36 now moves to the state House of Representatives for consideration.
A companion bill in the House, HB 810, passed its first reading and has not yet been scheduled for any other hearings. It was introduced by Rep. Scott Saiki.
