Title 38, Procedural And Supplementary Provisions

§806-27 Indictment; defects and omissions. No indictment shall be held invalid or insufficient for want of the averment of any matter unnecessary to be proved; for any defect or omission of any matter of form only; for any miswriting, misspelling, or improper English, or the use …

§806-28 Characterization of the act. The indictment need not allege that the offense was committed or the act done "feloniously", "unlawfully", "wilfully", "knowingly", "maliciously", "with force and arms", or otherwise except where such characterization is used in the statutory …

§806-29 Exceptions need not be negatived. No indictment for any offense created or defined by statute shall be deemed objectionable for the reason that it fails to negative any exception, excuse, or proviso contained in the statute creating or defining the offense. The fact that …

§806-30 Alternative allegations. In an indictment for an offense which is constituted of one or more of several acts or which may be committed by one or more of several means or with one or more of several intents, or which may produce one or more of several results, two or more …

§806-31 Indirect allegations. No indictment or bill of particulars is invalid or insufficient for the reason merely that it alleges indirectly and by inference instead of directly any matters, facts, or circumstances connected with or constituting the offense, provided that the n…

§806-32 Repugnancy. No indictment is invalid by reason of any repugnant allegation contained therein, provided that an offense is indicated under section 806-34. [L 1915, c 215, pt of §2; RL 1925, §4045; RL 1935, §5504; RL 1945, §10806; RL 1955, §258-16; HRS §711-32; ren L 1972, …

§806-33 Surplusage. Any unnecessary allegation contained in an indictment may be rejected as surplusage. [L 1915, c 215, pt of §2; RL 1925, §4046; RL 1935, §5505; RL 1945, §10807; RL 1955, §258-17; HRS §711-33; ren L 1972, c 9, pt of §1]

§806-34 Sufficiency of averments as to offense and transaction. In an indictment the offense may be charged either by name or by reference to the statute defining or making it punishable; and the transaction may be stated with so much detail of time, place, and circumstances and …

§806-35 Property owned by more than one. In any indictment wherein it is requisite to state the ownership of any property whatsoever, whether real or personal, which belongs to or is in the possession of more than one person, whether the persons be partners in trade, joint tenant…

§806-36 Property owned by corporation. All property, real and personal, whereof any body corporate shall by law have the management, control, or custody, shall, for the purpose of any indictment or proceeding against any other person for any offense committed on or in respect the…

§806-37 Money, etc., how described. In every indictment whatsoever in which it is necessary to make any averment as to any money or valuable security, and in every indictment for embezzlement, fraudulent application, or fraudulent disposition where the offense relates to any valu…

§806-38 Instrument, how described. In any indictment for forging, altering, offering, uttering, disposing of, or for stealing, embezzling, extorting, converting, disposing of, destroying, or concealing, or for obtaining by false pretenses any instrument, it shall be sufficient to…

§806-39 Same. In all other cases whenever it is necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print, or figures, it shall be sufficient to describe the instrument by any name or designation by which …

§806-40 Document of title. In any indictment for stealing or for any fraudulent purpose, destroying, canceling, obliterating, or concealing the whole or any part of any document of title to lands, it shall be sufficient to allege the document to be or to contain evidence of the t…

§806-41 Ownership, not necessary to allege when. In any indictment for any of the following offenses it shall not be necessary to allege that the instrument, document, article, or thing in respect of which the offense is committed is the property of any person: the offense of ste…

§806-42 Second offense. In any indictment for any offense committed after a previous conviction or convictions for any felony or misdemeanor, it shall be sufficient after charging the subsequent offense to state that the offender was at a certain time and place, or at certain tim…

ARRAIGNMENT; PLEADINGS AND MOTIONS §806-46 Objections to indictment. Every objection to any indictment for any defect apparent on the face thereof, shall be taken by demurrer or motion to quash the indictment before the accused has pleaded and not afterwards; and every court befo…

§806-47 Bill of particulars. If the court is of the opinion that the accused in any criminal case has been actually misled and prejudiced in the accused's defense upon the merits of any defect, imperfection, or omission in the indictment, insufficient to warrant the quashing of t…

§806-48 Postponement. No person prosecuted shall be entitled as of right to traverse or postpone the trial of any indictment preferred against the person, or to have time to plead or demur to the indictment allowed the person; provided always that if the court before which any pe…

§806-49 Arraignment; plea of not guilty. If any person being arraigned upon any indictment for any offense pleads thereto a plea of "not guilty", the person shall by that plea without any further form, be deemed to have put oneself upon the country for trial, and the court shall …

§806-50 Standing mute. If any person being arraigned upon or charged with any offense, stands mute of malice, or will not answer directly to the indictment, the court (if it shall so think fit) may order the proper officer to enter a plea of "not guilty" on behalf of that person,…

§806-51 Plea of autrefois convict or acquit. In any plea of autrefois convict or autrefois acquit, it shall be sufficient for the defendant to state that the defendant has been lawfully convicted or acquitted (as the case may be) of the offense charged in the indictment. [L 1876,…

DISMISSAL §806-56 Nolle prosequi. No nolle prosequi shall be entered in a criminal case in a court of record except by consent of the court upon written motion of the prosecuting attorney stating the reasons therefor. The court may deny the motion if it deems the reasons insuffic…

INDICTMENT AND INFORMATION, GENERALLY §806-6 Use of; furnishing of copy. In all cases of offenses against the laws of the State brought in the first instance in a court of record, the accused shall be arraigned and prosecuted upon an information, complaint, or indictment as soon …

TRIAL; EVIDENCE AND PRESUMPTIONS; DEPOSITIONS [§806-60] Jury of twelve required. Any defendant charged with a serious crime shall have the right to trial by a jury of twelve members. "Serious crime" means any crime for which the defendant may be imprisoned for six months or more.…

§806-61 Waiver of jury. The defendant in any criminal case may, with the consent of the court, waive the right to a trial by jury either by written consent filed in court or by oral consent in open court entered on the minutes. Any case in which a trial by jury is waived may be t…

§806-62 Trial; order of proof and argument. The prosecuting attorney shall open the case, and first introduce his witnesses and proofs, and after the evidence for the defense has been presented, and the accused or his counsel has summed up and closed his case, the prosecuting att…

§806-63 Defense. All persons tried for any offense shall be admitted after the close of the case for the prosecution to make full answer and defense thereto by counsel or attorney. [L 1876, c 40, §46; RL 1925, §4026; RL 1935, §5527; RL 1945, §10832; RL 1955, §258-42; HRS §711-63;…

§806-65 Depositions, right to inspect. All persons under trial shall be entitled at the time of their trial to inspect without fee or reward all depositions, or copies of the depositions, which have been taken against them, and delivered in manner by law required to the proper of…

§806-7 Preparation of indictment, complaint, or information; true bill by grand jury. Informations, complaints, and indictments shall be duly prepared by a legal prosecuting officer. Every indictment shall be duly found by a grand jury before the arraignment of the accused, and w…

SENTENCE; PROBATION §806-71 Sentence. Except as otherwise provided by law, in all criminal cases, the court or judge before which or whom the conviction is had shall proceed as soon thereafter as may be to pass sentence according to law, which sentence shall be recorded by the cl…

§806-72 Probation officers. Any probation officer assigned to the courts may be placed in any correctional facility to perform the probation officer's assigned duties. [L 1931, c 41, pt of §4; RL 1935, §5538; RL 1945, §10844; RL 1955, §258-54; HRS §711-78; am L 1970, c 10, §1 and…

§806-73 Duties and powers of probation officers; adult probation records. (a) A probation officer shall investigate any case referred to the probation officer for investigation by the court in which the probation officer is serving and report thereon to the court. The probation o…

GENERAL PROVISIONS §806-76 Court proceedings; reports to county clerk. Whenever in any circuit court, family court, or district court any citizen of eighteen years of age or over is: (1) Convicted of any felony and sentenced to a term of imprisonment; or (2) Adjudged insane or fe…

§806-8 Prosecution where indictment not essential. In criminal cases brought in the first instance in a court of record, but in which the accused may be held to answer without an indictment by a grand jury, the legal prosecutor may arraign and prosecute the accused upon an inform…

INFORMATION CHARGING [§806-81] Definitions. In this part, unless a different meaning is plainly required: "Legal prosecuting officer" means the attorney general or a prosecuting attorney, a deputy attorney general or a deputy prosecuting attorney, or a person designated and autho…

[§806-82] Prosecution of felonies by written information. Criminal charges may be instituted by written information signed by a legal prosecuting officer and filed in the court having jurisdiction thereof when the charge is a felony for which charging by written information is pe…

§806-83 Felonies for which criminal charges may be instituted by written information. (a) Criminal charges may be instituted by written information for a felony when the charge is a class C felony, except under: (1) Section 159-28 (bribery related to the Hawaii Meat Inspection Ac…

[§806-84] Exhibits. (a) When an offense is prosecuted by information, the legal prosecuting officer shall attach an exhibit demonstrating the existence of probable cause to believe that the offense charged in the information has been committed and that the defendant committed the…

[§806-85] Probable cause. (a) When an information is filed, the court having jurisdiction shall review the information and its exhibit to determine whether there is probable cause to believe that the offense charged was committed and that the defendant committed the offense charg…

[§806-86] Procedure for motion to dismiss. (a) The defendant may move in circuit court to dismiss the information on the grounds that the information and its exhibit do not establish the existence of probable cause to believe that the offense charged was committed or probable cau…

[§806-87] Evidence at hearing on motion to dismiss. (a) The defendant may introduce evidence at the hearing. The defendant may also subpoena and call witnesses if the motion is accompanied by a declaration stating that counsel for the defendant (or the defendant if appearing with…

[§806-88] Ruling on motion to dismiss. (a) The court shall determine from an examination of the information and its attachments, and in light of any evidence presented at a hearing on a motion to dismiss the information, whether the information and its attachments establish the e…

§806-9 Information, laws applicable. All provisions of law applying to prosecutions upon indictments, to writs and process therein, and the issuing and service thereof, to motions, pleadings, trials, and punishments, or the passing or execution of any sentence, and to all proceed…

§806D-1 Definitions. Whenever used in this chapter, unless otherwise apparent from the context: "Adverse result" includes one or more of the following possible consequences: (1) Danger to the life or physical safety of an individual; (2) A flight from prosecution; (3) The destruc…

[§806D-2] Production of records. (a) This section shall apply to any criminal process allowing for search of or commanding production of records that are in the actual or constructive possession of a recipient who is properly served outside the State, regardless of whether the re…