colloquy requirement in Hawaii

2019In State v. Ui , which involved defense counsel's stipulation to facts that had the effect of establishing an element of the charged offense, we expressly rejected a "trial strategy" exception to the colloquy requirement, reasoning that such an exception would "ultimately swallow the colloquy rule" because "every decision to stipulate to evidence in a case may be considered within the bounds of [a] trial strategy exception." 142 Hawai'i at 295 , 418 P.3d at 636 ; see also Tachibana , 79 Hawai'i at 232 , 900 P.2d at 1299 ("[A] defendant's personal constitutional right to testify truthfully in h

2019In State v. Ui , which involved defense counsel's stipulation to facts that had the effect of establishing an element of the charged offense, we expressly rejected a "trial strategy" exception to the colloquy requirement, reasoning that such an exception would "ultimately swallow the colloquy rule" because "every decision to stipulate to evidence in a case may be considered within the bounds of [a] trial strategy exception." 142 Hawai'i at 295 , 418 P.3d at 636 ; see also Tachibana , 79 Hawai'i at 232 , 900 P.2d at 1299 ("[A] defendant's personal constitutional right to testify truthfully in h

2014As stated in Lewis , "Because we view this prior-to-trial advisement as incidental to the 'ultimate colloquy,’ any claim of prejudice resulting from the failure of the trial court to give it must meet the same 'actual[] prejudice[]’ standard applied to violations of the colloquy requirement.” 94 Hawai'i at 297 , 12 P.3d at 1238 (alterations in original) (quoting Tachibana, 79 Hawai'i at 237 , 900 P.2d at 1304 ).

2014We then noted, “Because we view this prior-to-trial advisement as incidental to the ‘ultimate colloquy,’ any claim of prejudice resulting from the failure of the trial court to give it must meet the same ‘actual[ ] prejudice[ ]’ standard applied to violations of the colloquy requirement.” Id. (citing Tachibana, 79 Hawai'i at 237 , 900 P.2d at 1304 ).

2021In support of his argument, Pelen relies on State v. Murray, 116 Hawai#i 3, 169 P.3d 955 (2007) (requiring an on-the-record colloquy before a trial court accepts a stipulation to an element of a charged offense to ensure defendant's intelligent, knowing, and voluntary waiver of fundamental due process right to have all elements proved beyond a reasonable doubt), and State v. Ui, 142 Hawai#i 287, 418 P.3d 628 (2018) (rejecting a "trial strategy" exception to the colloquy requirement where defense counsel's stipulation to facts that had 11 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFI

2012Murray noted that in Tachibana v. State, this court held “ ‘that in order to protect the right to testify under the Hawai'i Constitution, trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every ease in which the defendant does not testify.’ ” Id. at 11 , 169 P.3d at 963 (quoting Tachibana v. State, 79 Hawai'i 226, 236 , 900 P.2d 1293, 1303 (1995)); cf. State v. Lewis, 94 Hawai'i 292, 294-95 , 12 P.3d 1233, 1235-36 (2000) (explaining that although the colloquy requirement to establish the knowing and voluntary nature

2021Settles, 561 S.E.2d at 107 (“[T]he Federal courts that have addressed the issue have concluded that ‘due process of law does not require a court to elicit a formal waiver from a defendant who has admitted to violating the terms of probation.’” (citation omitted)); United States v. Pelensky, 129 F.3d 63, 68 (2d Cir. 1997) (declining to adopt a colloquy requirement as a matter of federal law).

2021Settles, 561 S.E.2d at 107 (“[T]he Federal courts that have addressed the issue have concluded that ‘due process of law does not require a court to elicit a formal waiver from a defendant who has admitted to violating the terms of probation.’” (citation omitted)); United States v. Pelensky, 129 F.3d 63, 68 (2d Cir. 1997) (declining to adopt a colloquy requirement as a matter of federal law).

2021Settles, 561 S.E.2d at 107 (“[T]he Federal courts that have addressed the issue have concluded that ‘due process of law does not require a court to elicit a formal waiver from a defendant who has admitted to violating the terms of probation.’” (citation omitted)); United States v. Pelensky, 129 F.3d 63, 68 (2d Cir. 1997) (declining to adopt a colloquy requirement as a matter of federal law).

2021Settles, 561 S.E.2d at 107 (“[T]he Federal courts that have addressed the issue have concluded that ‘due process of law does not require a court to elicit a formal waiver from a defendant who has admitted to violating the terms of probation.’” (citation omitted)); United States v. Pelensky, 129 F.3d 63, 68 (2d Cir. 1997) (declining to adopt a colloquy requirement as a matter of federal law).

2020Finally, in adopting this colloquy requirement we exercise this court’s supervisory powers “to adopt [a] new procedural requirement[] to prevent error in the trial courts.” State v. Cabagbag, 127 Hawai‘i 302, 315, 277 P.3d 1027, 1040 (2012).

2013See State v. Cabagbag, 127 Hawai'i 302, 316 , 277 P.3d 1027, 1042 (2012) (applying this court’s holding regarding eyewitness instructions on a prospective basis); see also Tachibana, 79 Hawai'i at 238 , 900 P.2d at 1305 (holding that "the colloquy requirement established ... shall only apply prospectively to cases in which the trial is not completed until after the date of [the] decision.”); Lewis, 94 Hawai'i at 297 , 12 P.3d at 1238 ("we now mandate that, in trials beginning after the date of this opinion,” trial courts give specific information to defendants prior to the start of trial).

2019In State v. Ui , which involved defense counsel's stipulation to facts that had the effect of establishing an element of the charged offense, we expressly rejected a "trial strategy" exception to the colloquy requirement, reasoning that such an exception would "ultimately swallow the colloquy rule" because "every decision to stipulate to evidence in a case may be considered within the bounds of [a] trial strategy exception." 142 Hawai'i at 295 , 418 P.3d at 636 ; see also Tachibana , 79 Hawai'i at 232 , 900 P.2d at 1299 ("[A] defendant's personal constitutional right to testify truthfully in h

2019In State v. Ui , which involved defense counsel's stipulation to facts that had the effect of establishing an element of the charged offense, we expressly rejected a "trial strategy" exception to the colloquy requirement, reasoning that such an exception would "ultimately swallow the colloquy rule" because "every decision to stipulate to evidence in a case may be considered within the bounds of [a] trial strategy exception." 142 Hawai'i at 295 , 418 P.3d at 636 ; see also Tachibana , 79 Hawai'i at 232 , 900 P.2d at 1299 ("[A] defendant's personal constitutional right to testify truthfully in h

2000In light of the foregoing considerations, the colloquy requirement to “advise[ ] [a defendant] that he [or she] has a right not to testify,” Boyd, 586 A.2d at 679 n. 15, does not impose an affirmative duty on the trial courts in all cases to engage the defendant in the colloquy.

1995See Hurn v. State, 872 P.2d 189, 198 (Alaska App.1994) (recognizing holding of LaVigne, supra, 8 that “whenever a criminal defendant does not take the stand at trial, the trial judge is under a duty to inquire, before the defense case closes, whether the defendant knows that the decision to testify or not rests with him or her, and to ascertain that the defendant has personally chosen not to testify”); Sanchez v. State, 841 P.2d 85, 89 (Wyo.1992) (adopting holding of LaVigne, supra); State v. Neuman, 179 W.Va. 580, 584 , 371 S.E.2d 77, 81 (1988) (holding that “procedural safeguards must be emp

2020First, a colloquy is required if defense counsel files a notice that the defendant “inten[ds] to 32 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** rely on the defense of physical or mental disease, disorder, or defect excluding penal responsibility, or [if] there is reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case[.]” HRS § 704-407.5(1); see also Phenis v. United States, 909 A.2d 138, 155 (D.C. 2006) (holding a colloquy is required when there is “a substantial question of the defendant’s

2020First, a colloquy is required if defense counsel files a notice that the defendant “inten[ds] to 32 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** rely on the defense of physical or mental disease, disorder, or defect excluding penal responsibility, or [if] there is reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case[.]” HRS § 704-407.5(1); see also Phenis v. United States, 909 A.2d 138, 155 (D.C. 2006) (holding a colloquy is required when there is “a substantial question of the defendant’s

2018Tachibana , 79 Haw. at 233 , 900 P.2d at 1300 ("There are well-documented benefits to the colloquy procedure."); accord Boykin , 395 U.S. at 244 n.7, 89 S.Ct. 1709 ("A majority of criminal convictions are obtained after a plea of guilty.

2018Tachibana , 79 Haw. at 233 , 900 P.2d at 1300 ("There are well-documented benefits to the colloquy procedure."); accord Boykin , 395 U.S. at 244 n.7, 89 S.Ct. 1709 ("A majority of criminal convictions are obtained after a plea of guilty.

2014See also State v. Han, 130 Hawai'i 83, 89 , 306 P.3d 128, 134 (2013)(“On appeal, the pretrial advisement is reviewed for ‘actual prejudice.’ ”) (citation omitted).

2014See also State v. Han, 130 Hawai'i 83, 89 , 306 P.3d 128, 134 (2013)(“On appeal, the pretrial advisement is reviewed for ‘actual prejudice.’ ”) (citation omitted).

2013State v. Young, 73 Haw. 217 , 830 P.2d 512 (1992), overruled Olivera and Swain, by requiring that “it is the defendant who must make the waiver, upon being well informed of his right to trial by jury.” 73 Haw. at 221 , 830 P.2d at 514 (emphasis added).

2013State v. Young, 73 Haw. 217 , 830 P.2d 512 (1992), overruled Olivera and Swain, by requiring that “it is the defendant who must make the waiver, upon being well informed of his right to trial by jury.” 73 Haw. at 221 , 830 P.2d at 514 (emphasis added).

2008See Jackson v. Commonwealth, 113 S.W.3d 128, 136 (Ky. 2003) (involving waiver of right to jury trial); Commonwealth v. Williams, 312 A.2d 597, 598-600 (Pa. 1973) (same).

2008See Jackson v. Commonwealth, 113 S.W.3d 128, 136 (Ky. 2003) (involving waiver of right to jury trial); Commonwealth v. Williams, 312 A.2d 597, 598-600 (Pa. 1973) (same).

1995See Hurn v. State, 872 P.2d 189, 198 (Alaska App.1994) (recognizing holding of LaVigne, supra, 8 that “whenever a criminal defendant does not take the stand at trial, the trial judge is under a duty to inquire, before the defense case closes, whether the defendant knows that the decision to testify or not rests with him or her, and to ascertain that the defendant has personally chosen not to testify”); Sanchez v. State, 841 P.2d 85, 89 (Wyo.1992) (adopting holding of LaVigne, supra); State v. Neuman, 179 W.Va. 580, 584 , 371 S.E.2d 77, 81 (1988) (holding that “procedural safeguards must be emp

1995See Hurn v. State, 872 P.2d 189, 198 (Alaska App.1994) (recognizing holding of LaVigne, supra, [8] that "whenever a criminal defendant does not take the stand at trial, the trial judge is under a duty to inquire, before the defense case closes, whether the defendant knows that the decision to testify or not rests with him or her, and to ascertain that the defendant has personally chosen not to testify"); Sanchez v. State, 841 P.2d 85, 89 (Wyo.1992) (adopting holding of LaVigne, supra ); State v. Neuman, 179 W.Va. 580, 584 , 371 S.E.2d 77, 81 (1988) (holding that "procedural safeguards must be

1995See Hurn v. State, 872 P.2d 189, 198 (Alaska App.1994) (recognizing holding of LaVigne, supra, 8 that “whenever a criminal defendant does not take the stand at trial, the trial judge is under a duty to inquire, before the defense case closes, whether the defendant knows that the decision to testify or not rests with him or her, and to ascertain that the defendant has personally chosen not to testify”); Sanchez v. State, 841 P.2d 85, 89 (Wyo.1992) (adopting holding of LaVigne, supra); State v. Neuman, 179 W.Va. 580, 584 , 371 S.E.2d 77, 81 (1988) (holding that “procedural safeguards must be emp

1995See Hurn v. State, 872 P.2d 189, 198 (Alaska App.1994) (recognizing holding of LaVigne, supra, [8] that "whenever a criminal defendant does not take the stand at trial, the trial judge is under a duty to inquire, before the defense case closes, whether the defendant knows that the decision to testify or not rests with him or her, and to ascertain that the defendant has personally chosen not to testify"); Sanchez v. State, 841 P.2d 85, 89 (Wyo.1992) (adopting holding of LaVigne, supra ); State v. Neuman, 179 W.Va. 580, 584 , 371 S.E.2d 77, 81 (1988) (holding that "procedural safeguards must be