confrontation clause in Hawaii

2022The State, citing State v. Fields, 115 Hawai#i 503, 168 P.3d 955 (2007), responds that the fact Heather appeared at trial and testified was sufficient to satisfy the requirements of the confrontation clause.

2021See Crawford v. Washington, 541 U.S. 36, 42 (2004) (holding that the confrontation clause barred the "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had a prior opportunity for cross- examination."); State v. Fields, 115 Hawai#i 503, 168 P.3d 955 (2007) (applying Crawford to testimonial hearsay statements).

2010Fields was not inconsistent with this court’s acknowledgment in other Hawaii confrontation clause eases that “chief among the interests secured by the confrontation clause is the right to cross-examine one’s accuser.” McGriff, 76 Hawaii at 155 , 871 P.2d at 789 (citing Roberts, 448 U.S. at 63 , 100 S.Ct. 2531 ); accord Sua II, 92 Hawai'i at 70, 987 P.2d at 968.

2010Fields was not inconsistent with this court’s acknowledgment in other Hawaii confrontation clause eases that “chief among the interests secured by the confrontation clause is the right to cross-examine one’s accuser.” McGriff, 76 Hawaii at 155 , 871 P.2d at 789 (citing Roberts, 448 U.S. at 63 , 100 S.Ct. 2531 ); accord Sua II, 92 Hawai'i at 70, 987 P.2d at 968.

2010In Sua II, this court explained that “[w]e have recognized that the hearsay rule and the confrontation clause are ‘generally designed to avoid similar evils; however, it is not correct to surmise that the overlap of the two doctrines of law is so complete that the confrontation clause is nothing more than a codification of the hearsay mies of evidence.’ ” 92 Hawai'i at 70-71, 987 P.2d at 968-69 (quoting Apilando, 79 Hawai'i at 131-32 , 900 P.2d at 138 -39 (quoting State v. Faafiti, 54 Haw. 637, 639 , 513 P.2d 697, 700 (1973))).

2010In Sua II, this court explained that “[w]e have recognized that the hearsay rule and the confrontation clause are ‘generally designed to avoid similar evils; however, it is not correct to surmise that the overlap of the two doctrines of law is so complete that the confrontation clause is nothing more than a codification of the hearsay mies of evidence.’ ” 92 Hawai'i at 70-71, 987 P.2d at 968-69 (quoting Apilando, 79 Hawai'i at 131-32 , 900 P.2d at 138 -39 (quoting State v. Faafiti, 54 Haw. 637, 639 , 513 P.2d 697, 700 (1973))).

2010I would hold that (1) the confrontation clause of the Hawai'i Constitution, article I, sections 5 and 14, is implicated where a witness appears at trial for cross-examination, but is unable to remember the subject matter of his or her out-of-court statement; (2) in this case, the statement, “My boyfriend beat me up,” is non-testimonial hearsay, and, thus, the confrontation clause of the Hawai'i Constitution requires a showing of the “unavailability” of the declarant 1 and that the statement “ ‘bear[s] adequate indicia of reliability[,]’ ” Sua II, 92 Hawai'i at 71, 987 P.2d at 969 (quoting Stat

2010Prior to the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the determination of whether the admission of a hearsay statement of an unavailable declarant violated the confrontation clause of the Hawaii Constitution was governed by a two-prong test set forth in Roberts, 448 U.S. at 65 , 100 S.Ct. 2531 .

2010I would hold that (1) the confrontation clause of the Hawai'i Constitution, article I, sections 5 and 14, is implicated where a witness appears at trial for cross-examination, but is unable to remember the subject matter of his or her out-of-court statement; (2) in this case, the statement, “My boyfriend beat me up,” is non-testimonial hearsay, and, thus, the confrontation clause of the Hawai'i Constitution requires a showing of the “unavailability” of the declarant 1 and that the statement “ ‘bear[s] adequate indicia of reliability[,]’ ” Sua II, 92 Hawai'i at 71, 987 P.2d at 969 (quoting Stat

2010I would hold that (1) the confrontation clause of the Hawai'i Constitution, article I, sections 5 and 14, is implicated where a witness appears at trial for cross-examination, but is unable to remember the subject matter of his or her out-of-court statement; (2) in this case, the statement, “My boyfriend beat me up,” is non-testimonial hearsay, and, thus, the confrontation clause of the Hawai'i Constitution requires a showing of the “unavailability” of the declarant 1 and that the statement “ ‘bear[s] adequate indicia of reliability[,]’ ” Sua II, 92 Hawai'i at 71, 987 P.2d at 969 (quoting Stat

2022With regard to the confrontation clause, the Hawai#i Supreme Court noted that "this court has not adopted HRE Rule 802.1 as its test for whether a witness appears at trial for cross-examination." See State v. Delos Santos, 124 Hawai#i 130, 149-50, 238 P.3d 162, 181-82 (2010) (declining to interpret Fields to require cross-examination regarding the subject matter of the statement to satisfy the confrontation clause). 28 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996) (citation and internal quotation marks o

2012Under the constitution, the confrontation clause protects “[a]n accused’s right to demonstrate the bias or motive of prosecution witnesses[,]” and “‘the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross examination.’ ” Balisbisana, 83 Hawai'i at 115 , 924 P.2d at 1221 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986)).

2010In Sua II, this court explained that “[w]e have recognized that the hearsay rule and the confrontation clause are ‘generally designed to avoid similar evils; however, it is not correct to surmise that the overlap of the two doctrines of law is so complete that the confrontation clause is nothing more than a codification of the hearsay mies of evidence.’ ” 92 Hawai'i at 70-71, 987 P.2d at 968-69 (quoting Apilando, 79 Hawai'i at 131-32 , 900 P.2d at 138 -39 (quoting State v. Faafiti, 54 Haw. 637, 639 , 513 P.2d 697, 700 (1973))).

2010In Sua II, this court explained that “[w]e have recognized that the hearsay rule and the confrontation clause are ‘generally designed to avoid similar evils; however, it is not correct to surmise that the overlap of the two doctrines of law is so complete that the confrontation clause is nothing more than a codification of the hearsay mies of evidence.’ ” 92 Hawai'i at 70-71, 987 P.2d at 968-69 (quoting Apilando, 79 Hawai'i at 131-32 , 900 P.2d at 138 -39 (quoting State v. Faafiti, 54 Haw. 637, 639 , 513 P.2d 697, 700 (1973))).

2010However, Fields established that a "fair reading of Sua indicates that this court rejected Sua's confrontation clause argument on two independent and dispositive, but coequal grounds: (1) both prongs of the Roberts test were met; and (2) Sua had a sufficient opportunity for cross-examination.” Fields, 115 Hawai'i at 526 , 168 P.3d at 978 (citing Sua, 92 Hawai'i at 75 , 987 P.2d at 973 ).

2010However, Fields established that a "fair reading of Sua indicates that this court rejected Sua's confrontation clause argument on two independent and dispositive, but coequal grounds: (1) both prongs of the Roberts test were met; and (2) Sua had a sufficient opportunity for cross-examination.” Fields, 115 Hawai'i at 526 , 168 P.3d at 978 (citing Sua, 92 Hawai'i at 75 , 987 P.2d at 973 ).

2010I would hold that (1) the confrontation clause of the Hawai'i Constitution, article I, sections 5 and 14, is implicated where a witness appears at trial for cross-examination, but is unable to remember the subject matter of his or her out-of-court statement; (2) in this case, the statement, “My boyfriend beat me up,” is non-testimonial hearsay, and, thus, the confrontation clause of the Hawai'i Constitution requires a showing of the “unavailability” of the declarant 1 and that the statement “ ‘bear[s] adequate indicia of reliability[,]’ ” Sua II, 92 Hawai'i at 71, 987 P.2d at 969 (quoting Stat

2010I would hold that (1) the confrontation clause of the Hawai'i Constitution, article I, sections 5 and 14, is implicated where a witness appears at trial for cross-examination, but is unable to remember the subject matter of his or her out-of-court statement; (2) in this case, the statement, “My boyfriend beat me up,” is non-testimonial hearsay, and, thus, the confrontation clause of the Hawai'i Constitution requires a showing of the “unavailability” of the declarant 1 and that the statement “ ‘bear[s] adequate indicia of reliability[,]’ ” Sua II, 92 Hawai'i at 71, 987 P.2d at 969 (quoting Stat

2005Justice Harlan, in a scholarly concurrence, stated that he would have reached the issue of the out-of-court statement, and would have held that a witness’ inability to “recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence.” Id., at 188 , 90 S.Ct., at 1951 . *84 In Delaware v. Fensterer, 474 U.S. 15 , 106 S.Ct. 292 , 88 L.Ed.2d 15 (1985)(per curiam), we determined that there was no Confrontation Clause violation when an expert wit

2005Justice Harlan, in a scholarly concurrence, stated that he would have reached the issue of the out-of-court statement, and would have held that a witness’ inability to “recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence.” Id., at 188 , 90 S.Ct., at 1951 . *84 In Delaware v. Fensterer, 474 U.S. 15 , 106 S.Ct. 292 , 88 L.Ed.2d 15 (1985)(per curiam), we determined that there was no Confrontation Clause violation when an expert wit

2007The right of confrontation as understood at the time of Fields' trial The confrontation clause of article I, section 14 of the Hawai`i Constitution states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused[.]" [7] The right of confrontation "affords the accused both the opportunity to challenge the credibility and veracity of the prosecution's witnesses and an occasion for the jury to weigh the demeanor of those witnesses." State v. Ortiz, 74 Haw. 343, 360 , 845 P.2d 547, 555 (1993) (citing State v. Rodrigues, 7 Haw.A

2007The right of confrontation as understood at the time of Fields' trial The confrontation clause of article I, section 14 of the Hawai`i Constitution states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused[.]" [7] The right of confrontation "affords the accused both the opportunity to challenge the credibility and veracity of the prosecution's witnesses and an occasion for the jury to weigh the demeanor of those witnesses." State v. Ortiz, 74 Haw. 343, 360 , 845 P.2d 547, 555 (1993) (citing State v. Rodrigues, 7 Haw.A

2004See State v. Adrian, 51 Haw. 125, 131 , 453 P.2d 221, 225 (1969) (holding that the confrontation clause of the Sixth Amendment is applicable to the states and therefore the U.S. Supreme Court's interpretation of the provision is binding upon this court).

2004See State v. Adrian, 51 Haw. 125, 131 , 453 P.2d 221, 225 (1969) (holding that the confrontation clause of the Sixth Amendment is applicable to the states and therefore the U.S. Supreme Court's interpretation of the provision is binding upon this court).

2010See State v. Peseti, 101 Hawai'i 172, 180 , 65 P.3d 119, 127 (2003) (stating that the confrontation clause “provides two types of protections for a criminal defendant: the right physically to face those who testify against him [or her], and the right to conduct cross-examination” (brackets in original)); see also Apilando, 79 Hawai'i at 131 , 900 P.2d at 138 (stating that “[t]he confrontation right provides the criminal defendant with the opportunity to defend himself [or herself] through our adversary system by prohibiting ex parte trials, granting the defendant an opportunity to test the evi

2010See State v. Peseti, 101 Hawai'i 172, 180 , 65 P.3d 119, 127 (2003) (stating that the confrontation clause “provides two types of protections for a criminal defendant: the right physically to face those who testify against him [or her], and the right to conduct cross-examination” (brackets in original)); see also Apilando, 79 Hawai'i at 131 , 900 P.2d at 138 (stating that “[t]he confrontation right provides the criminal defendant with the opportunity to defend himself [or herself] through our adversary system by prohibiting ex parte trials, granting the defendant an opportunity to test the evi

2021See Crawford v. Washington, 541 U.S. 36, 42 (2004) (holding that the confrontation clause barred the "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had a prior opportunity for cross- examination."); State v. Fields, 115 Hawai#i 503, 168 P.3d 955 (2007) (applying Crawford to testimonial hearsay statements).

2018For testimonial hearsay to be admissible, the confrontation clause demands a showing that the declarant is unavailable. 41 State v. Fields , 115 Hawai'i 503 , 513, 168 P.3d 955 , 965 (2007) (citing Crawford v. Washington , 541 U.S. 36 , 59, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) ).

2007The ICA reasoned that the witness's "grand jury testimony closely resembled a deposition or ex parte affidavit of the sort condemned in Mattox[ v. United States], 156 U.S. [237,] 242-43, 15 S.Ct. 337 [ 39 L.Ed. 409 (1895)]." Id. at 89, 987 P.2d at 987. [21] It *998 was explained that the confrontation clause was intended to exclude some hearsay altogether and that cross-examination was central to the right of confrontation.

2007The ICA reasoned that the witness's "grand jury testimony closely resembled a deposition or ex parte affidavit of the sort condemned in Mattox[ v. United States], 156 U.S. [237,] 242-43, 15 S.Ct. 337 [ 39 L.Ed. 409 (1895)]." Id. at 89, 987 P.2d at 987. [21] It *998 was explained that the confrontation clause was intended to exclude some hearsay altogether and that cross-examination was central to the right of confrontation.

2005In other eases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. [[Image here]] The basic litmus of Sixth Amendment unavailability is established: “[A] witness is not ‘unavailable’ for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S., [719,] 724-725, 88 S.Ct., [1318,] 1322 [ 20 L.Ed.2d 255 ] [ (1968) ] (emphasis added).

2005The basic litmus of Sixth Amendment unavailability is established: "[A] witness is not 'unavailable’ for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber v. Page, 390 U.S. [719,] 724-725, 88 S.Ct.[1318,] 1322[, 20 L.Ed.2d 255 (1968)] (emphasis added).

1999Instead, our supreme court has "remained resolute that under the confrontation clause of the Hawaii Constitution, ‘[a] showing of the declarant’s unavailability is necessary[.]' ” Id. (quoting State v. Ortiz, 74 Haw. 343, 362 , 845 P.2d 547, 556 , reconsideration denied, 74 Haw. 650 , 849 P.2d 81 (1993), abrogated on other grounds, State v. Moore, 82 Hawai'i 202 , 921 P.2d 122 (1996)).

1994Indeed, in White , the Supreme Court stated that an “unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding.” Id. — U.S. at —, 112 S.Ct. at 741 .

2022With regard to the confrontation clause, the Hawai#i Supreme Court noted that "this court has not adopted HRE Rule 802.1 as its test for whether a witness appears at trial for cross-examination." See State v. Delos Santos, 124 Hawai#i 130, 149-50, 238 P.3d 162, 181-82 (2010) (declining to interpret Fields to require cross-examination regarding the subject matter of the statement to satisfy the confrontation clause). 28 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996) (citation and internal quotation marks o

2019The ICA also held that Officer Ostachuk's testimony did not violate Abrigo's right to confrontation or cross-examination because "a witness who appears at trial and testifies satisfies the confrontation clause, even though the witness claims a lack of memory that precludes them from testifying about the subject matter of their out-of-court statement." (Quoting State v. Delos Santos , 124 Hawai'i 130 , 145, 238 P.3d 162 , 177 (2010).) Thus, the ICA affirmed the judgment of conviction.

1996In State v. White, 65 Haw. 286, 288 , 651 P.2d 470, 472 (1982), we held that the unavailability requirement was satisfied, for purposes of the confrontation clause, where the prosecution confirmed on the record that it had assigned an investigator to locate a witness with no known job, address, or telephone number, and the investigator contacted the witness’s mother and had other officers check locations where the witness was thought to have once resided.

1996In State v. White, 65 Haw. 286, 288 , 651 P.2d 470, 472 (1982), we held that the unavailability requirement was satisfied, for purposes of the confrontation clause, where the prosecution confirmed on the record that it had assigned an investigator to locate a witness with no known job, address, or telephone number, and the investigator contacted the witness’s mother and had other officers check locations where the witness was thought to have once resided.

2025“It is well-settled that upholding a defendant’s rights under the confrontation clause is essential to providing a defendant with a fair trial.” Birano v. State, 143 Hawaiʻi 163, 183, 426 P.3d 387, 407 (2018) (citation omitted); State v. Miranda, 147 Hawaiʻi 171, 179-82, 465 P.3d 618, 626-29 (2020) (precluding cross-examination of an adverse witness regarding a motive to lie violated defendant’s right to confrontation, and therefore, his right to a fair trial).

2025“It is well-settled that upholding a defendant’s rights under the confrontation clause is essential to providing a defendant with a fair trial.” Birano v. State, 143 Hawaiʻi 163, 183, 426 P.3d 387, 407 (2018) (citation omitted); State v. Miranda, 147 Hawaiʻi 171, 179-82, 465 P.3d 618, 626-29 (2020) (precluding cross-examination of an adverse witness regarding a motive to lie violated defendant’s right to confrontation, and therefore, his right to a fair trial).

2010Additionally, the majority's assertion that the mere presence of the hearsay declarant in Sua II satisfied the confrontation clause of the Hawai`i Constitution ignores Sua II 's express acknowledgment that although a witness may be physically present, "`[u]navailability[, under our version of Roberts , ] may be demonstrated by a showing of loss of memory.'" Sua II, 92 Hawai`i at 73, 987 P.2d at 971 (quoting Apilando , 79 Hawai`i at 137, 900 P.2d at 144 (citing Tsuruda, 18 Haw. at 438 (ellipsis and brackets omitted) (emphasis in original))).

2010Additionally, the majority’s assertion that the mere presence of the hearsay declarant in Sua II satisfied the confrontation clause of the Hawaii Constitution ignores Sua II’s express acknowledgment that although a witness may be physically present, “ ‘[ujnavaila-bility[, under our version of Roberts,] may be demonstrated by a showing of loss of memory.’ ” Sua II, 92 Hawai'i at 73, 987 P.2d at 971 (quoting Apilando, 79 Hawai'i at 137 , 900 P.2d at 144 (citing Tsuruda, 18 Haw. at 438 (ellipsis and brackets omitted) (emphasis in original))).

2010Ironically, notwithstanding the fact that this jurisdiction has rejected Owens’ conclusion that “cross-examination” requires only that the declarant be “ ‘placed on the stand, under oath, and respond! ] willingly to questions’ ” for purposes of HRE Rule 802.1, see Canady, 80 Hawai'i at 478 , 911 P.2d at 113 (quoting Owens, 484 U.S. at 561 , 108 S.Ct. 838 ), the majority adopts that very definition of “cross-examination” for purposes of the confrontation clause.

2010Ironically, notwithstanding the fact that this jurisdiction has rejected Owens’ conclusion that “cross-examination” requires only that the declarant be “ ‘placed on the stand, under oath, and respond! ] willingly to questions’ ” for purposes of HRE Rule 802.1, see Canady, 80 Hawai'i at 478 , 911 P.2d at 113 (quoting Owens, 484 U.S. at 561 , 108 S.Ct. 838 ), the majority adopts that very definition of “cross-examination” for purposes of the confrontation clause.

1999See also Faafiti, 54 Haw. at 639 , 513 P.2d at 700 (holding that “there is no question that a defendant in a criminal case has a fundamental or constitutional right to be confronted with and to cross-examine witnesses against him”); State v. Adrian, 51 Haw. 125, 131 , 453 P.2d 221, 225 (1969) (holding that the “primary right secured by the confrontation clause is the right of cross-examination, ... a right which this court has recognized is basic to our judicial system”) (citation omitted); State v. Balisbisana, 83 Hawai'i 109, 115 , 924 P.2d 1215, 1221 (1996) (holding that “ ‘the exposure of

1999See also Faafiti, 54 Haw. at 639 , 513 P.2d at 700 (holding that “there is no question that a defendant in a criminal case has a fundamental or constitutional right to be confronted with and to cross-examine witnesses against him”); State v. Adrian, 51 Haw. 125, 131 , 453 P.2d 221, 225 (1969) (holding that the “primary right secured by the confrontation clause is the right of cross-examination, ... a right which this court has recognized is basic to our judicial system”) (citation omitted); State v. Balisbisana, 83 Hawai'i 109, 115 , 924 P.2d 1215, 1221 (1996) (holding that “ ‘the exposure of

2017See Levell, 128 Hawai'i at 40 , 282 P.3d at 582 (“[E]vidence of witness bias is relevant, and ... the trial court’s discretion to exclude evidence under HRE Rule 403 only becomes operative after the threshold level of inquiry under the confrontation clause has been afforded.”).

2017See Levell, 128 Hawai'i at 40 , 282 P.3d at 582 ("[T]he trial court's discretion to exclude evidence under HRE Rule 403 only becomes operative after the threshold level of inquiry under the confrontation clause has been afforded.").

2020Acacio, 140 Hawaii at 101 n.3, 398 P.3d at 690 n.3 (noting that this step in the analysis is not necessary when the threshold level of inquiry under the confrontation clause is not met). 27 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** applying the harmless beyond a reasonable doubt standard the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction.” Id. (quoting State v. Pond, 118 Hawaii 452, 461, 193 P.3d 368, 377 (2008)).

2020Acacio, 140 Hawaii at 101 n.3, 398 P.3d at 690 n.3 (noting that this step in the analysis is not necessary when the threshold level of inquiry under the confrontation clause is not met). 27 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** applying the harmless beyond a reasonable doubt standard the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction.” Id. (quoting State v. Pond, 118 Hawaii 452, 461, 193 P.3d 368, 377 (2008)).