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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-SEP-2025
12:34 PM
Dkt. 53 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
CHARLES ZUFFANTE,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 3CPC-XX-XXXXXXX)
SEPTEMBER 17, 2025
McKENNA, EDDINS, AND DEVENS, JJ.; WITH RECKTENWALD, C.J.,
CONCURRING IN PART AND DISSENTING IN PART;
AND GINOZA, J., DISSENTING
OPINION OF THE COURT BY EDDINS, J.
Today, police stations are equipped to record custodial
interrogations. Outside the station, police officers record
interactions with suspects through cameras attached to their
bodies. And throughout society, recording devices are modern
appendages, attached to most hands.
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Unrecorded interrogations frustrate the judiciary’s truthdetecting mission and mute rights promised by the Hawaiʻi
Constitution.
We conclude that recording is a necessary procedural
safeguard that protects the right against self-incrimination,
right to confrontation, and right to a fair trial.
We hold that the Hawaiʻi Constitution’s due process clause
requires law enforcement to record in-station custodial
interrogations. We also hold that article I, section 5 of the
Hawaiʻi Constitution requires the recording of outside-thestation custodial interrogations when feasible.
Thus, we recognize a new constitutional rule and overrule
State v. Kekona, 77 Hawaiʻi 403, 886 P.2d 740 (1994).
I.
On October 20, 2021, in Kona, Hawaiʻi, two police officers
stopped a car with an expired registration. Charles Zuffante
sat in the passenger seat. His girlfriend was the driver and
owned the car.
During the stop, the officers noticed a glass pipe in the
front center cupholder. The officers arrested Zuffante and his
girlfriend. After the arrest, they searched Zuffante and found
3.5 grams of methamphetamine in his pocket. The officers
recorded the event with their body-worn cameras. Later, after
obtaining a search warrant for the car, the police recovered 130
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grams of methamphetamine stored in four places: a Bebe handbag,
black and white polka dot coin purse, sunglasses case, and fanny
pack.
The next day, a detective interrogated Zuffante. Zuffante
signed an “Advice of Rights” form. He waived his right to
counsel and right against self-incrimination. The Miranda
advisements and questioning occurred in the Kona police
station’s interrogation room. Zuffante does not contend that
the warnings were deficient or that he unknowingly or
involuntarily waived his rights.
Only Zuffante and the detective were in that room. Though
the police equipped the interrogation site with video recording
equipment, no video or audio preserved the interrogation. “The
audio/video recording equipment was inoperable,” the detective
claimed. Zuffante figured the detective had recorded the
interrogation. “I mean they have the camera right there[,]” he
later testified.
The detective did not note-take. One week later, he wrote
a report that purportedly paraphrased and quoted Zuffante.
Zuffante moved in limine to preclude the State from
presenting the detective’s testimony about Zuffante’s statements
during his interrogation. Allowing the jury to hear the
detective’s uncorroborated testimony as to what he had
supposedly said during the interrogation violated his right to a
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fair trial, Zuffante argued. He urged the circuit court to
adopt Stephan v. State, 711 P.2d 1156 (Alaska 1985), a case
rejected by State v. Kekona.
Stephan held that Alaska’s due process clause requires law
enforcement to record custodial interrogations. 711 P.2d at
1158. Though both Kekona’s majority and dissenting opinions
voiced support for recording in-station custodial
interrogations, the majority declined to follow Stephan and
mandate recording as a due process requirement. Kekona, 77
Hawaiʻi at 409, 886 P.2d at 746 (“[W]e do not agree that the due
process clause of our State Constitution requires such a
practice.”).
The circuit court denied Zuffante’s motion.
At trial, the detective claimed that Zuffante confessed to
possessing all the methamphetamine recovered from his
girlfriend’s car. According to the detective, Zuffante
confessed that “everything” belonged to him, and “all the meth
was his.” Zuffante also admitted “that he sells the crystal
methamphetamine.” Defense counsel’s cross-examination did not
budge the detective.
The detective repeated his account during redirect. As
Zuffante sat next to his lawyer during this testimony, he
interrupted. “That’s a lie,” he insisted.
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Q. . . . [D]id you clarify what he meant by “everything”?
A. Yes, ma’am.
Q. And did he say a particular substance?
A. Yes.
Q. And what did he say?
THE DEFENDANT: That’s a lie.
A. All the meth was his.
Q. (By [Deputy Prosecuting Attorney]) And did he use “meth”?
THE DEFENDANT: That’s a lie.
Q. Did he use the exact term “meth”?
A. Yes, ma’am.
After the detective testified, the State rested. The
defense offered no witnesses. Before it rested, the court
advised Zuffante of his right to testify and right not to
testify. See Tachibana v. State, 79 Hawaiʻi 226, 236, 900 P.2d
1293, 1303 (1995); State v. Torres, 144 Hawaiʻi 282, 285, 439
P.3d 234, 237 (2019). Zuffante informed the court that he
wanted to testify. “My decision is to testify and tell the
Court what happened.”
Zuffante contradicted the detective. He denied confessing
that “all the meth” in the car was his. He told the jury he
didn’t know what was in his girlfriend’s car. He explained that
there were no questions about the contents of the Bebe handbag,
polka dot coin purse, sunglasses case, or fanny pack:
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Q. Did Officer Gaspar ask you about your knowledge of the
contents of any of the items that were found to contain
illegal drugs?
A. Only the vehicle.
Q. [D]id he ask you about . . . your knowledge of the contents
of anything in any of the five items that contained . . .
illegal drugs?
A. No, ma’am.
Zuffante also related that he only told the detective that
he had sold methamphetamine because he wanted to protect his
girlfriend.
The jury found Zuffante guilty as charged of promoting a
dangerous drug in the first degree, Hawaiʻi Revised Statutes
(HRS) § 712-1241(1)(a) (Supp. 2016); attempted promotion of a
dangerous drug in the first degree, HRS §§ 705-500 (2014), 712-1241(1)(b)(ii); and promoting a dangerous drug in the second
degree, HRS § 712-1242(1)(b) (Supp. 2016). The court sentenced
Zuffante to a twenty-year prison term.
Zuffante appealed. He challenged the admission of the
detective’s testimony regarding his statements, and argued that
the failure to record undermined his right against selfincrimination. And like his motion in limine, he urged this
court to revisit Kekona and adopt Stephan’s recording
requirement.
The ICA affirmed the circuit court. Zuffante appealed. We
accepted cert.
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II.
We hold that the Hawaiʻi Constitution’s due process clause
requires law enforcement to record all in-station custodial
interrogations and to record, when feasible, all outside-thestation custodial interrogations.
The Hawaiʻi Constitution’s imperative: “[n]o person shall be
deprived of life, liberty or property without due process of
law,” reads like the United States Constitution’s Fifth and
Fourteenth Amendments. Haw. Const. art. I, § 5. Like the
Fourteenth Amendment, our constitution demands equal protection
of the laws. U.S. Const. amend. XIV, § 1. Article I, section 5
does more, though, than its federal counterpart. It protects
against denial of a person’s civil rights and discrimination
based on race, religion, sex, or ancestry. Haw. Const. art. I,
§ 5.
Hawaiʻi’s due process clause also operates differently.
Article I, section 5 of the Hawaiʻi Constitution offers safety to
Hawaiʻi’s people that exceeds the federal constitution’s suddenly
fluid protections. State v. Bowe, 77 Hawaiʻi 51, 58, 881 P.2d
538, 545 (1994) (“Although the due process clause of the Hawaiʻi
Constitution is modeled after the fourteenth amendment to the
United States Constitution, the due process protection under our
state constitution is not necessarily limited to that provided
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by the United States Constitution.”); State v. Matafeo, 71 Haw.
183, 185-87, 787 P.2d 671, 672-73 (1990) (no bad faith
requirement for due process violation when State fails to
preserve material evidence; contra Arizona v. Youngblood, 488
U.S. 51 (1988)); see generally Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215 (2022) (erasing a generations-long
constitutional right, stripping autonomy from half the
population, and empowering states to force birth).
No United States Supreme Court opinion has tackled the
recording of custodial interrogations. If a case did though, we
would still look to our state constitution first. State v.
Wilson, 154 Hawaiʻi 8, 13, 543 P.3d 440, 445 (2024).
We believe that requiring law enforcement to record
custodial interrogations animates the right to confrontation and
the right against self-incrimination.
First, requiring police to record interrogations safeguards
the right against self-incrimination. Here, the lack of a
recording undermined Zuffante’s ability to freely and
voluntarily choose between testifying and not testifying.
Zuffante had no true choice but to testify, or remain silent and
allow the police officer’s testimony to go unchallenged by
evidence other than the officer’s own testimony. We add to the
safeguards this court has developed to advance article I,
section 10’s right against self-incrimination.
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Second, the article I, section 14 right to confrontation
allows defendants to challenge the prosecution’s evidence. But
when the only evidence of an alleged statement’s content,
context, and backdrop is a police officer’s recall, crossexamination gets much harder. Recording custodial
interrogations provides an objective account and complete
information to enhance meaningful cross-examination. It
furthers the right to confrontation.
Beyond supporting Hawaiʻi’s constitutional provisions,
requiring police to record interrogations promotes accurate and
sound decision-making. Because recordings offer judges and
juries better evidence compared to human memory, they improve
reliability in fact-finding – advancing the Judiciary’s core
truth-detecting mission. See-and-hear-for-yourself evidence
also streamlines voluntariness hearings and trials, thereby
increasing judicial efficiency.
We believe that a defendant’s article I, section 5 right to
a fair trial is undermined unless police record an accused’s
custodial interrogation.
Thus, we hold that due process requires that all in-station
custodial interrogations be recorded, and that all outside-thestation custodial interrogations be recorded when feasible.
For purposes of this opinion, “recording” means a
simultaneous video and audio recording of the interaction. We
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note that the term “videorecording,” like the older “videotape
recording” may soon become outdated – and may already be. Our
decision thus accounts for technological advances, and requires
video and audio recordings consistent with prevalent recording
practices.
We begin with the right against self-incrimination.
A. The lack of an interrogation recording undermined
Zuffante’s article I, section 10 right against selfincrimination
Video and audio evidence unburdens the defendant’s decision
to testify or not testify at trial.
Absent recording, the only evidence the jury hears about
the interrogation comes from law enforcement – unless the
defendant testifies. With a recording, there is little need for
a defendant to waive the right against self-incrimination just
to counter police testimony about an interrogation.
We stop to address the dissent’s procedural concerns.
1. Appellate review of constitutional issues
The dissent feels that Zuffante didn’t sufficiently raise
or preserve arguments based on the right against selfincrimination and the right to confrontation. It believes the
State had no chance to address these constitutional arguments in
their briefing. So Zuffante is out of luck.
The dissent seems to conflate our plain error holding with
our reasoning and holding that recording custodial
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interrogations furthers the right to confrontation. We find
plain error based on the violation of Zuffante’s right against
self-incrimination. Because the dissent argues that “no party
had the opportunity to brief the court on whether these separate
constitutional grounds support a mandate of recording custodial
interrogations,” though, we address the dissent’s concern both
in the plain error context and as a whole.
First, plain error. The appellate court may not dispose of
“an issue of plain error not raised by the parties through
briefing.” See Hawaiʻi Rules of Appellate Procedure (HRAP) Rule
28(b)(4). Here, Zuffante repeatedly raised the right to a fair
trial, and the right against self-incrimination in his briefing.
The State had ample opportunity to respond to or inform the
court about these issues.
Before trial, Zuffante unsuccessfully moved in limine to
exclude the detective’s testimony relating to the unrecorded
interrogation at the Kona station. He quoted Justice Levinson’s
dissent in Kekona, and urged adoption of Alaska’s Stephan rule.
Recording was essential to the protection of his right to
counsel, right against self-incrimination, and right to a fair
trial, Zuffante argued. The State responded that Kekona applied
and that “[n]either this case, nor the current times, warrant a
reverse of [Kekona’s rejection of the Stephan rule.]”
Zuffante’s reply memorandum asked that the court adopt the
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Stephan rule because “[Zuffante] has a constitutional
right . . . to not be compelled to be a witness against
himself.”
On appeal, Zuffante again raised his self-incrimination and
fair trial arguments. The State acknowledged his position, but
did not directly engage. The ICA took a narrow approach,
refusing to consider Zuffante’s motion in limine arguments that
advocated for adoption of Stephan’s recording requirement.
Zuffante also raised his self-incrimination argument before this
court. The State chose not to file a response to Zuffante’s
cert application.
Two amicus briefs, one filed by the Hawaiʻi Innocence
Project and the Innocence Project, and the other by the ACLU of
Hawaiʻi Foundation and the American Civil Liberties Union
Foundation, also discussed the self-incrimination issue. The
State filed briefs in response to the amici. It had another
chance to brief these constitutional issues as it saw fit.
Last, at oral argument, both parties were questioned at length
about the impact of a lack of recording on the right against
self-incrimination. No. SCWC-XX-XXXXXXX, Thursday, April 17,
2025, 10 a.m., State v. Zuffante, YouTube, Oral Argument,
https://www.youtube.com/live/f06KVmJGC98 [https://perma.cc/RZ9LSDGB]. The parties have had full and fair opportunity to argue
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and brief this issue for the purposes of plain error review.
See HRAP Rule 28(b)(4).
Second, the right to confrontation. The dissent seems to
say that we should not examine the right to confrontation
because Zuffante did not specifically raise article I, section
14 in relation to his Stephan rule arguments, and the parties
did not have the opportunity to brief this issue. (Because we
do not find plain error based on this constitutional provision,
HRAP Rule 28(b)(4) does not apply here.)
We see no issue with considering closely-related
constitutional provisions in our analysis of the defendant’s
right to a fair trial. While the ICA did not consider
Zuffante’s circuit court recording arguments preserved, Zuffante
continued to argue on appeal that recording (and the Stephan
rule) furthers the right to a fair trial. This court “will
consider new arguments on appeal where justice so requires.”
State v. Moses, 102 Hawaiʻi 449, 456-57, 77 P.3d 940, 947-48
(2003). “[I]n the exercise of this discretion[,] an appellate
court should determine whether the consideration of the issue
requires additional facts, whether the resolution of the
question will affect the integrity of the findings of fact of
the trial court[,] and whether the question is of great public
import.” State v. Hicks, 113 Hawai‘i 60, 74, 148 P.3d 493, 507
(2006) (citing State v. Kapela, 82 Hawai‘i 381, 392 n.4, 922 P.2d
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994, 1005 n.4 (App. 1996) (brackets in original)). Here, we
require no further facts to decide how recording protects
constitutional rights, nor does our holding impact the integrity
of the trial court’s findings. See id.
Issues involving article I, section 5 (due process),
article I, section 14 (right to confrontation), and article I,
section 10 (right against self-incrimination) of the Hawaiʻi
Constitution and how police departments record custodial
interrogations have great public importance. See id. The
defendant, sentenced to twenty years, fairly presented legal
arguments worthy of appellate consideration.
Zuffante’s argument that recording custodial interogations
protects the right to a fair trial subsumes an article I,
section 14 right to confrontation argument. If the right to
confrontation is violated, then the right to a fair trial is
typically violated. Confrontation is an essential component of
due process. “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). We see no reason to
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procedurally sever these complementary rights. In interpreting
the constitution, this court may consider related constitutional
provisions. See, e.g., City & Cnty. of Honolulu v. State, 143
Hawaiʻi 455, 469 n.21, 431 P.3d 1228, 1242 n.21 (2018) (“[T]his
court interprets a constitutional provision in harmony with
other constitutional provisions and ‘in the light of the
circumstances under which it was adopted.’”).
2. Violation of Zuffante’s right against selfincrimination constitutes plain error
“We apply the plain error standard of review ‘to correct
errors which seriously affect the fairness, integrity, or public
reputation of judicial proceedings, to serve the ends of
justice, and to prevent the denial of fundamental rights.’”
State v. Hirata, 152 Hawaiʻi 27, 30, 520 P.3d 225, 228 (2022)
(quoting State v. Williams, 146 Hawaiʻi 62, 72, 456 P.3d 135, 145
(2020)); Hawaiʻi Rules of Penal Procedure Rule 52(b) (“Plain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.”).
The detective’s testimony retelling the interrogation
affected Zuffante’s substantial rights. We hold that the lack
of recording undermined Zuffante’s ability to freely and
voluntarily choose between testifying and not testifying.
“The choice to testify, or not, is the biggest decision a
defendant makes at trial.” Hirata, 152 Hawaiʻi at 34, 520 P.3d
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at 232. Given its importance, “[o]ur courts do a lot to ensure
this crucial call is made knowingly, intelligently, and
voluntarily,” such as requiring trial courts to advise the
defendant of the right to testify, or not, and requiring courts
to obtain on-the-record waivers of these rights. Id.;
Tachibana, 79 Hawaiʻi at 236, 900 P.2d at 1303; State v. Pomroy,
132 Hawaiʻi 85, 92-93, 319 P.3d 1093, 1100-01 (2014).
An accused’s words matter. Confessions have more impact on
verdicts than other evidence. See Arizona v. Fulminante, 499
U.S. 279, 296 (1991) (“A confession is like no other evidence.
Indeed, the defendant’s own confession is probably the most
probative and damaging evidence that can be admitted against
[them].”) (cleaned up); Sara C. Appleby & Saul M. Kassin, When
Self-Report Trumps Science: Effects of Confessions, DNA, and
Prosecutorial Theories on Perceptions of Guilt, 22 Psych. Pub.
Pol’y & L., 127, 127 (2016).
A defendant’s words before trial, and live, testifying at
trial, have a lopsided effect. See State v. Robinson, 79 Hawaiʻi
468, 472, 903 P.2d 1289, 1293 (1995) (“A confession which has
been shown by the state to be free from coercive conditions is
among the strongest kind of physical evidence the prosecution
may produce.”) (quoting People v. Miller, 829 P.2d 443, 446
(Colo. App. 1991)); State v. Pauline, 100 Hawaiʻi 356, 373, 60
P.3d 306, 323 (2002) (“A witness’s countenance, tone of voice,
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mode and manner of expression, and general demeanor on the stand
oftentimes influence the jury as much in estimating the weight
they give and attach to his testimony as the words he utters.”)
(citation omitted).
The failure to record placed Zuffante in a constitutional
bind. Let the detective’s unverified testimony go uncontested,
or waive his article I, section 10 right not to testify. Once
the detective testified to his alleged confession, Zuffante had
no real choice but to testify himself. This illusory choice —
either remain silent and let decisive evidence go unchallenged,
or testify to refute the testimony — dents the right against
self-incrimination. When there’s no recording to capture a
custodial interrogation, an accused’s right to make a free
choice to testify or not is unfairly burdened. See Stephan, 711
P.2d at 1159-60; State v. Scales, 518 N.W.2d 587, 592 (Minn.
1994).
This court has protected the freedom of choice to testify
at trial. In State v. Santiago, the defendant was accused of
murdering a police officer. 53 Haw. 254, 255-56, 492 P.2d 657,
658-59 (1971). At trial, Santiago chose to testify. Id. at
256, 492 P.2d at 659. To impeach his credibility, on cross the
prosecution asked him about priors. Id. Santiago answered that
a “long time ago,” at age twenty, he was convicted of burglary.
Id.
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Santiago held that admitting prior convictions burdens a
defendant’s right to testify:
Admission of prior convictions to impeach credibility puts
the criminal defendant who has prior convictions in a
tremendous dilemma. [The defendant] knows that the jury
will learn of [their] prior convictions only if [they]
take[] the stand to testify in [their] own defense. [They]
know[] that the jury may use [their] prior convictions in
its determination of whether or not [they are] guilty. Any
defendant who has prior convictions will therefore feel
constrained not to take the stand.
Id. at 258, 492 P.2d at 660.
This court rejected that burden on a defendant’s right to
testify in their own defense. Id. at 260, 492 P.2d at 661.
Santiago held that “[s]ince there is no compelling reason to
impose that burden[] . . . to convict a criminal defendant where
prior crimes have been introduced to impeach [their] credibility
as a witness violates the accused’s constitutional right to
testify in [their] own defense.” Id.
This court has often crafted constitutional rules to
advance article I, section 10’s right against selfincrimination. See, e.g., State v. Kelekolio, 74 Haw. 479, 849
P.2d 58 (1993) (extrinsic falsehoods per se coercive, so
confession generated from that tactic involuntary); Bowe, 77
Hawaiʻi 51, 881 P.2d 538 (the state participates in a private
person’s coercive acts to obtain an accused’s confession by
presenting those statements as evidence); Tachibana, 79 Hawaiʻi
226, 900 P.2d 1293 (mandatory colloquy and on-the-record waiver
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to protect right to testify); Pomroy, 132 Hawaiʻi 85, 319 P.3d
1093 (mandatory colloquy and on-the-record waiver to protect
right not to testify); State v. Matsumoto, 145 Hawaiʻi 313, 452
P.3d 310 (2019) (deliberately falsifying results of a polygraph
test per se coercive, so statements excluded); State v. Baker,
147 Hawaiʻi 413, 465 P.3d 860 (2020) (when interrogation shifts
from investigatory to accusatory, coercive techniques may not
induce a confession); State v. Hewitt, 153 Hawaiʻi 33, 526 P.3d
558 (2023) (reaffirming State v. Ketchum, 97 Hawaiʻi 107, 34 P.3d
1006 (2001), that Miranda warnings required when probable cause
arises or there was a “de facto” arrest without probable cause).
Because the absence of a recording undermines article I,
section 10’s right against self-incrimination, we hold that law
enforcement is required to record all in-station custodial
interrogations, and all outside-the-station custodial
interrogations when feasible.
The article I, section 10 constitutional safeguards
complement article I, section 5’s right to a fair trial.
We hold that the trial court’s admission of the detective’s
testimony constituted plain error. The error seriously affected
the fairness of Zuffante’s trial.
B. Recorded interrogations further the right to confrontation
through meaningful cross-examination
The right to confrontation is all about the right to
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challenge evidence presented by the prosecution. Testimony
relating to an unrecorded confession may involve a statement
touching facts of consequence, or assertions that undermine the
defendant’s credibility. When the State presents testimony
about an alleged confession, the accused is forced to confront
not only an officer’s recall of the defendant’s words, but the
circumstances under which those words were obtained.
Recording advances article I, section 14’s promise to
permit meaningful and potent cross-examination. See State v.
Nofoa, 135 Hawaiʻi 220, 349 P.3d 327 (2015) (only a meaningful
right to cross-examination satisfies the right to
confrontation). Recording preserves the words, context, and
tone of the interrogation for cross-examination. A complete and
exact account of an interrogation allows the defense to
effectively and meaningfully challenge otherwise uncorroborated
or unknown evidence.
Neutral, unfiltered evidence enhances the truth-detecting
aim of cross-examination, and in turn, the right to
confrontation. “[I]ncreasing the evidence available to both
parties[] enhances the fairness of the adversary system.” State
v. Tetu, 139 Hawaiʻi 207, 220, 386 P.3d 844, 857 (2016) (quoting
State v. Pond, 118 Hawaiʻi 452, 464, 193 P.3d 368, 380 (2008)).
Recording objectively preserves and authenticates an
interrogation. It creates an accurate account of the event.
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Not only the words the participants speak, but the context and
setting that frame those words. Recording offers the factfinder the “best evidence available.” State v. Jones, 49 P.3d
273, 279 (Ariz. 2002). Rather than listen to one-sided or
competing views about what was said, how, and under what
circumstances, judges and jurors may evaluate the
interrogation’s “precise contents.” Commonwealth v.
DiGiambattista, 813 N.E.2d 516, 532 (Mass. 2004).
Without recording, there is very little an accused may do
to ably counter an officer’s testimony. Elementary omission
impeachment and other defense 101 techniques are largely
ineffectual. Lisa Kern Griffin, False Accuracy in Criminal
Trials: The Limits and Costs of Cross-Examination, 102 Tex. L.
Rev. 1011, 1057 (2024) (“[O]ver-reliance on [crossexamination’s] capacity to test credibility can lead to the
exclusion of some valuable evidence, introduce misinformation
via witness demeanor, diminish other procedural protections, and
insulate errors from later review.”). Cross-examination built
upon a less-than-ideal evidentiary foundation is a poor
substitute for start-to-finish, word-for-word evidence.
Because a recording captures the exact content and context
of the interrogation, the factual information is known before an
officer testifies. Thus, defense counsel does not have to
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confront the mostly unknown. Recording furthers article I,
section 14’s right to confrontation.
C. Requiring police to record interrogations improves
transparency and reliability, and protects the integrity of
the criminal justice system
Recording supports the integrity of the criminal justice
system. Requiring law enforcement to record interrogations
improves the reliability of evidence presented to judges and
juries. And outside the courtroom, it promotes transparency and
accountability in law enforcement practices.
Today it’s easy to know what defendants and police officers
say to each other. So if the prosecution uses a defendant’s
words against them, then our courts must ensure that the
defendant really spoke those words. Recorded interrogations
protect the integrity of the judicial system. Stephan, 711 P.2d
at 1163-64.
Human memory is a suboptimal backup to video evidence. Id.
at 1161 (“Human memory is often faulty – people forget specific
facts, or reconstruct and interpret past events differently.”).
Recordings reliably authenticate the events that take place
during custodial interrogation. They verify whether police
properly recited Miranda warnings. And they validate whether a
suspect knowingly, intelligently, and voluntarily waived the
right against self-incrimination and the right to counsel.
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Recordings are “obviously material in determining the
voluntariness of a confession.” Id.
Recording creates a reliable and objective record of what
was said, and the circumstances in which those words were
spoken. It limits credibility disputes between a police officer
and defendant. Kekona expressed that sentiment.
Undeniably, recording a custodial interrogation is
important in many contexts. A recording would be helpful
to both the suspect and the police by obviating the
“swearing contest” which too often arises when an accused
maintains that [they] asserted [their] constitutional right
to remain silent or requested an attorney and the police
testify to the contrary.
77 Hawaiʻi at 409, 886 P.2d at 746.
The County of Hawaiʻi Police Department’s policy on bodyworn cameras accurately observes that recording “provide[s] an
objective record” and “may depict events differently than what
is recalled by the officer”:
While recordings obtained from a [body-worn camera] provide
an objective record of these events, video recordings . . .
may depict events differently than what is recalled by the
officer. Specifically, it is understood the [body-worn
camera] may capture information that may not have been
heard and/or observed by the involved officer(s) and/or may
not capture information observed by the officer(s).
Hawaiʻi Police Dep’t General Order 818 (Mar. 29, 2022) at § 1.
Because recording provides a neutral record, it quickens
judicial processes. When a defendant challenges the
voluntariness of their statements or the validity of their
waiver of rights, courts are better suited to assess the
totality of the circumstances after watching and hearing the
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interrogation - from the Miranda rights reading to the
encounter’s end. See Baker, 147 Hawaiʻi at 416, 420, 424-32, 465
P.3d at 863, 867, 871-79 (reviewing the context of the
defendant’s statements under the totality of the circumstances
based on a recording and transcript of the interrogation);
Kekona, 77 Hawaiʻi at 409, 886 P.2d at 746 (recording “help[s] to
demonstrate the voluntariness of the confession, the context in
which a particular statement was made and of course, the actual
content of the statement”).
A recorded interrogation is helpful to resolve disputes
about the defendant’s invocation or waiver of the right to
counsel. See State v. McKnight, 131 Hawaiʻi 379, 383, 319 P.3d
298, 302 (2013) (tape recorded interrogation showed that
defendant agreed to continue the interview and waive his right
to counsel after initially requesting an attorney); People v.
Henderson, 470 P.3d 71, 77-79 (Cal. 2020) (a transcript of
defendant’s post-arrest interrogation recording showed that
defendant properly invoked his right to counsel after initially
waiving his Miranda rights).
Recordings reduce litigation over what happened during
custodial interrogations; they streamline voluntariness hearings
and trials. Stephan, 711 P.2d at 1162. And they largely
eliminate “swearing contests” between police officers and
defendants before and during trial. Defendants, who by status
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alone tend to lose those stacked contests, compete on a less
slanted field. Scales, 518 N.W.2d at 591.
The lack of recording creates an informational dead spot
that weakens the reliability of fact-finding. It makes it
harder for courts to decide voluntariness and waiver issues.
And it needlessly complicates jury decisions regarding proof of
an element. Kekona’s dissent reasoned that lack of a verbatim
record “substantially diminishes the reliability” of judicial
review relating to voluntariness and waiver. Kekona, 77 Hawaiʻi
at 410, 886 P.2d at 747 (Levinson, J., concurring and
dissenting). The simple act of pressing “record” would
accurately reflect the content and context of the interrogation,
thereby enhancing public confidence in the justice system. See
id.
Without an objective record, fact-finders often have to
resolve case-changing disputes based on incomplete, hazy, or
self-serving recollections. In a legal system intrinsically
oriented toward truth, fairness, and accuracy (see, e.g., Hawaiʻi
Rules of Evidence, HRS chapter 626), unrecorded interrogations
undercut the reliability of fact-finding and create intolerable
risks of wrongful conviction.
Thus, requiring recordings of custodial interrogations
advances the integrity of the criminal justice system.
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Last, recorded interrogations promote transparency and
accountability in law enforcement practices. See Santiago, 53
Haw. at 264, 492 P.2d at 663 (“The objective of deterring
improper police conduct is only part of the larger objective of
safeguarding the integrity of our adversary system.”) (quoting
Harris v. New York, 401 U.S. 222, 231 (1971) (Brennan, J.,
dissenting).
Recordings provide a reliable record to evaluate the acts
and words of police officers and suspects. And because
recording provides a fair account of that interaction, it
protects law enforcement from false accusations of coercion,
misconduct, and unprofessional behavior.
The dangers of self-serving and inaccurate officer
testimony recede with video and audio evidence. Preserving an
interrogation may reveal coercive or manipulative tactics.
Without an objective record, it is more difficult to challenge
involuntary confessions. Recordings thus serve both as a
deterrent to unlawful practices and a way to challenge them.
D. Constitutional due process requires police to record all
custodial interrogations, regardless of location
1. In the decades since Kekona, in-station and “field”
recording has become routine
Decades ago, recording equipment was “readily available.”
Kekona, 77 Hawaiʻi at 405, 886 P.2d at 742. Today recording is
routine. Now, well into the twenty-first century, we believe it
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is always feasible to record in-station custodial
interrogations. No longer just a best practice, recording
custodial interrogations is a constitutional imperative.
Modern police departments commonly use recording technology
for investigative and administrative purposes. Just like other
evidentiary items police gather, it’s not hard to safekeep and
reproduce recorded evidence. No technical or operational
barriers to recording interrogations were suggested to us.
Advances in digital storage have met concerns about the costs
and methods of storing recordings.
Broad jurisdictional support reflects awareness that
recording is achievable and vital to the integrity of the
criminal justice system. Federal law enforcement agencies,
thirty states, and the District of Columbia require recordings
as standard police protocol. See Brandon Garrett, Jurisdictions
that Record Police Interrogations, Wilson Center for Science and
Justice at Duke Law 2 (Aug. 2024) https://wcsj.law.duke.edu/wpcontent/uploads/2024/08/Jurisdictions-that-Record-PoliceInterrogations.pdf [https://perma.cc/Z5YQ-VNA6].
Recording custodial interrogations advances the Hawaiʻi
Constitution’s right against self-incrimination, right to
confrontation, and right to a fair trial.
We hold that article I, section 5’s constitutional range
covers a procedural rule that requires law enforcement to record
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constitutional rights warnings, waivers, and the entire
custodial interrogation.
2. We expand Hawaiʻi’s due process protections to keep
pace with technological advancements
Due process is agile. Norms, values, and experiences
change over time. A constitution adapts. See Emps.’ Ret. Sys.
of Hawaii v. Ho, 44 Haw. 154, 170-71, 352 P.2d 861, 870 (1960)
(discussing United States v. Classic, 313 U.S. 299, 316 (1941)).
See also Matter of Haw. Elec. Light Co., Inc., 152 Hawai‘i 352,
359, 526 P.3d 329, 336 (2023) (right to a stable climate system
conferred by broad purpose of constitutional provision, adapted
to contemporary times).
Due process matures with technological advancements to
protect constitutional rights. See In re JH, 152 Hawaiʻi 373,
381, 526 P.3d 350, 358 (2023) (“Context shapes the process that
is due.”); Stephan, 711 P.2d at 1161 (“The concept of due
process is not static; among other things, it must change to
keep pace with new technological developments.”).
In Hawaiʻi, “due process is flexible and calls for such
procedural protections as the particular situation demands.”
State v. Bani, 97 Hawaiʻi 285, 296, 36 P.3d 1255, 1266 (2001)
(cleaned up). “[W]e have not hesitated to exclude statements or
evidence from being used at trial when necessary to preserve the
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integrity of the judicial process.” Baker, 147 Hawaiʻi at 427,
465 P.3d at 874.
Today, law enforcement agencies routinely use recording
equipment for many situations. For instance, documenting crime
scenes, filming sobriety tests, and monitoring detainees. And
nowadays most police-public encounters are preserved through
body-worn camera footage.
Modern technology has made video and audio recording
feasible in virtually all settings. Officers wear high-quality
cameras. The widespread use of recording devices checks any
claim that recording is unworkable outside police stations.
Barriers that may have existed years ago are no longer present.
Any administrative or operational burden is slight compared
to the constitutional stakes that arise from a custodial
interrogation. If children can record everyday events with
ease, law enforcement cannot claim hardship to record perhaps
its most consequential investigative act – an interrogation, one
that often affects a person’s liberty.
Because every county police department in Hawaiʻi uses bodyworn cameras, recording field interrogations is doable. See,
e.g., Hawaiʻi Police Dep’t, General Order 818, Body-Worn Cameras
(Mar. 29, 2022), https://www.hawaiipolice.gov/wpcontent/uploads/GO-818-PV-Body-Worn-Cameras.pdf
[https://perma.cc/F3MG-6AEL]; see also Allan Parachini, Kauai:
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Body Cameras are Police Officers’ New Best Friends, Honolulu
Civil Beat (Aug. 15, 2018),
https://www.civilbeat.org/2018/08/kauai-body-cameras-are-policeofficers-new-bestfriends/#:~:text=Garden%20Isle%20cops%20have%20been,it’s%20part%
20of%20our%20uniform.%E2%80%9D (“It’s part of our uniform.”)
[https://perma.cc/7AC9-DNG7]; Body Worn Cameras, Honolulu Police
Dep’t, https://www.honolulupd.org/policy/policy-body-worncameras/ [https://perma.cc/9APR-9K88]; Lila Fujimoto, “MPD to
implement body camera program,” The Maui News (July 22, 2017),
https://www.mauinews.com/news/local-news/2017/07/mpd-toimplement-body-camera-program/ [https://perma.cc/5PDH-ZYGH].
Our state’s police departments generally instruct officers
to record their activities in the field. As the Hawaiʻi Police
Department explained:
The Hawaiʻi Police Department uses [body-worn cameras] as a
means by which real time evidence and activity can be
captured in an environment that cannot be duplicated again.
It is vital to the law enforcement objective that real time
video evidence be captured and utilized in police
activities and [body-worn cameras] are an acceptable means
to attain this goal.
Hawaiʻi Police Dep’t General Order 818 (Mar. 29, 2022) at § 1.
Hawaiʻi County police officers are required to activate
body-worn cameras “to record all enforcement related events.”
Id. at § 6.3.1. “Enforcement related events” are “calls for
service,” “law enforcement actions,” “public interactions,”
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“subject/traffic stops,” “all use of force incidents,” “any
self-initiated police services,” “Motor Vehicle Pursuits,” and
“transporting [people] to and entering a department detention or
temporary detention facility.” Id. at § 6.3.2. According to
the Honolulu Police Department’s website, “Officers shall
immediately activate the [body-worn cameras] in event mode: (a)
[b]efore arriving at a scene to which they are responding or
were dispatched; (b) [w]hen initiating a law enforcement or
investigative encounter; (c) [w]hen activating their blue lights
and/or siren; or (d) [w]hen providing cover and/or possible
assistance for types of situations described in a and b above.”
Body Worn Cameras, Honolulu Police Dep’t,
https://www.honolulupd.org/policy/policy-body-worn-cameras/
[https://perma.cc/9APR-9K88].
In our case, when officers stopped Zuffante and his
girlfriend, they recorded the “law enforcement action” with
their body cameras per department policy. See Hawaiʻi Police
Dep’t General Order 818 (Mar. 29, 2022) at § 1; § 6.2.2. The
dissent pushes for committees and “stakeholder input.” But it
is unclear what more is needed. County police departments
already adopted policies requiring recordings to preserve
evidence and advance the constitutional rights contemplated in
this opinion.
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The due process rights stakes are high. Custodial
interrogations are inherently coercive. State v. Amorin, 61
Haw. 356, 362, 604 P.2d 45, 49 (1979) (custodial interrogations
contain “inherently compelling pressures which work to undermine
the individual’s will to resist and to compel [them] to speak
where [they] would not otherwise do so freely.”).
The natural pressures and the need for objective evidence
are present wherever a suspect ends up in custody and faces
interrogation. It doesn’t matter whether an interrogation
occurs in a police station, home, park, patrol car, or on a
sidewalk. The risks of unreliable confessions, problems with
“swearing contests,” and the difficulties courts and juries have
in reconstructing what really happened, are not limited to the
station house. So we see no reason to exempt custodial
interrogations outside a station from article I, section 5’s new
constitutional rule.
Limiting the recording requirement to police stations may
also create a perverse incentive for law enforcement to conduct
interrogations elsewhere. Kekona worried that if in-station
custodial interrogations required recording, then officers would
choose to conduct interrogations elsewhere. 77 Hawaiʻi at 409,
886 P.2d at 746. We believe Hawaiʻi’s modern police departments
would not engage in such subterfuge, but recording eliminates
any temptation.
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We hold that article I, section 5 of the Hawaiʻi
Constitution requires not only that all custodial interrogations
in police stations be recorded, but that all custodial
interrogations no matter the place, be recorded.
This rule is a reasonable and necessary safeguard,
essential to the protection of the accused’s right to
confrontation, right against self-incrimination, and right to a
fair trial. See Stephan, 711 P.2d at 1159-60; Scales, 518
N.W.2d at 592.
We hold that unless the State establishes by a
preponderance of the evidence that recording a custodial
interrogation outside the station is infeasible under the
circumstances, the failure to record results in the exclusion of
the unrecorded statement. Stephan, 711 P.2d at 1162-64.
Feasibility quells worries that evidence of otherwise
constitutional interactions will be inadmissible at trial. If
outside-the-station recording is not feasible, the statements
obtained are admissible.
Exclusion is justified by the need to deter noncompliance,
protect constitutional rights, and preserve the integrity of the
justice system. State v. Torres, 125 Hawaiʻi 382, 394, 262 P.3d
1006, 1018 (2011); State v. Manion, 151 Hawaiʻi 267, 272, 511
P.3d 766, 771 (2022). An exclusionary rule provides clear
guidance to law enforcement and the courts, ensures uniform
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application, and reduces litigation over the admissibility of
statements.
We limit the remedy for unrecorded custodial interrogations
to the unrecorded statement itself – not to derivative evidence.
The failure to record is a violation of a procedural safeguard,
not a direct constitutional violation like a coerced confession.
Inadmissibility does not extend to “fruit of the poisonous tree”
evidence unless the underlying statement was itself obtained in
violation of a constitutional right. The fruits doctrine does
not automatically require suppression of derivative evidence
uncovered from an unrecorded statement.
3. Kekona’s reasoning lacks practical relevance in light
of recent scientific research on false confessions and
modern access to recording technology
What about Kekona?
Thirty years ago, this court endorsed preserving a complete
account of a station house interrogation through technology.
Kekona, 77 Hawaiʻi at 409, 886 P.2d at 746 (“Undeniably,
recording a custodial interrogation is important in many
contexts.”).
Yet the Kekona majority held that recording an
interrogation only had an aspirational quality. Id. No law or
constitutional provision required recording. Id. (“[A]lthough
we decline to interpret the due process clause of the Hawaiʻi
Constitution as requiring that all custodial interrogations be
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recorded, we nevertheless stress the importance of utilizing
tape recordings during custodial interrogations when
feasible.”). Failure to record custodial interrogations, the
majority ruled, did not make a criminal trial unfair. Id.
In our case, the dissent believes that State v. Eli’s
reliance on Kekona precludes overturning Kekona. Absent clear
rejection of the bases for our holding today, we do not see how
Eli prevents this court from overturning Kekona.
Eli seemed to think that Kekona had a different holding.
He argued “that Detective was required by (a) [Kekona] . . . and
(b) HPD policy, to record the encounter with Defendant.” State
v. Eli, 126 Hawai‘i 510, 519, 273 P.3d 1196, 1205 (2012).
Eli wanted to suppress his unrecorded statements before the
waiver of his Miranda rights. Id. at 518-19, 273 P.3d at 1204-05. He alleged (and the detective agreed) that he had agreed to
give a statement before any Miranda warning was administered.
Id. at 514-16, 273 P.3d at 1200-02. (The detective then
recorded the reading of the Miranda warnings and his postMiranda statement.) Id. at 515, 273 P.3d at 1201.
The court relied on Kekona to reject Eli’s arguments that
the recorded statements obtained after his unrecorded preMiranda statements should be suppressed. Id. at 519, 273 P.3d
at 1205. He did not argue that the court should adopt the
Stephan rule or overturn Kekona. He argued that violation of
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HPD policy rendered the statement inadmissible, and that “as a
matter of public policy, [the court should] exclude statements
obtained after an unrecorded waiver.” Id.
Eli relied on Kekona, but at no point revisited its
reasoning. It repeated Kekona’s holding that defendants “have
the opportunity to cross-examine the police officers who
conducted their interrogations, and to set forth their own
account of events through testimony.” Eli, 126 Hawaiʻi at 519,
273 P.3d at 1205. But Eli did not examine the impact of this
purported “safeguard” on the right against self-incrimination.
Nor did it weigh the technological feasibility of recording with
the constitutional and practical impacts on defendants. Thus,
Eli does not preclude this court from interpreting the Hawai‘i
Constitution as times and technologies change, and new
constitutional concerns emerge.
DNA evidence has proved many things. For one, it has
revealed how false confessions have led to wrongful convictions.
See Richard A. Leo et al., Promoting Accuracy in the Use of
Confession Evidence: An Argument for Pretrial Reliability
Assessments to Prevent Wrongful Convictions, 85 Temple L. Rev.
759, 777 (2013); James R. Acker, The Flipside Injustice of
Wrongful Convictions: When the Guilty Go Free, 76 Alb. L. Rev.
1629, 1629, 1660 (2013). About one-third of the 375 DNA
exonerations between 1989 and 2020 involved false confessions.
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DNA Exonerations in the United States (1989 – 2020), Innocence
Project, https://innocenceproject.org/dna-exonerations-in-theunited-states/ [https://perma.cc/6AD5-MAJ7]. (It is unclear how
many of these false confessions involved recorded
interrogations.) See Richard A. Leo, False Confessions: Causes,
Consequences, and Implications, 37 J. Am. Acad. Psychiatry & L.
332, 337 (2009) (“most documented false-confession cases are not
[recorded]”).
Recording the exact circumstances of interrogations is thus
a worthwhile procedural reform to avoid false confessions and
wrongful convictions. See State v. Harrison, 95 Hawaiʻi 28, 32,
18 P.3d 890, 894 (2001) (“Among courts’ inherent powers are the
powers to create a remedy for a wrong even in the absence of
specific statutory remedies, and to prevent unfair results.”)
(citations omitted).
Hawaiʻi’s due process clause adapts to confront threats to
the fairness of criminal proceedings. Due process principles,
as applied to today’s people, require recorded custodial
interrogations.
Stare decisis, while foundational to stability in the law,
is no everlasting command. It must yield if following precedent
perpetuates injustice or fails to protect constitutional rights
given evolving legal and factual understandings. See State v.
Kekuewa, 114 Hawai‘i 411, 419, 163 P.3d 1148, 1156 (2007) (“ While
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‘there is no necessity or sound legal reason to perpetuate an
error under the doctrine of stare decisis’ . . . a court should
‘not depart from the doctrine of stare decisis without some
compelling justification.’”).
Given social science research on false confessions, the
easy access to recording technology, the truth-detecting
features of recording, decades-long legislative inaction (in
many states, courts had no need to articulate a right because
their state legislatures beat them to it), and the Hawaiʻi
Constitution’s dynamic tradition of rights protection, we
overrule State v. Kekona.
Article I, section 5 of the Hawaiʻi Constitution requires
that all in-station custodial interrogations be recorded, and
that all outside-the-station custodial interrogations be
recorded when feasible.
4. “Pipeline” Retroactive Effect
“The question of prospective application arises when this
court announces a new rule.” State v. Jess, 117 Hawaiʻi 381,
400, 184 P.3d 133, 152 (2008). Generally, “judicial decisions
are assumed to apply retroactively[.]” Ketchum, 97 Hawaiʻi at
123 n.26, 34 P.3d at 1022 n.26 (citation omitted). “If[] . . .
a judicial decision announces a ‘new rule,’ then this court may,
in its discretion, determine that the interests of fairness
preclude retroactive application of the new rule.” Id.
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This court has identified “what degree a new rule is to
have retroactive effect.” Lewi v. State, 145 Hawaiʻi 333, 349
n.21, 452 P.3d 330, 346 n.21 (2019). We may give a new rule:
(1) purely prospective effect (“applied neither to the parties
in the law-making decision nor to those others against or by
whom it might be applied to conduct or events occurring before
that decision”); (2) limited or “pipeline” retroactive effect
(“the rule applies to the parties in the decision and all cases
that are on direct review or not yet final as of the date of the
decision”); and (3) full retroactive effect (“the rule applies
both to the parties before the court and to all others by and
against whom claims may be pressed”). Id.
This court has also recognized a fourth option, “selective
retroactive effect,” where the court applies the new rule “in
the case in which it is pronounced, then returns to the old rule
with respect to all other cases arising on facts predating the
pronouncement.” Id. (cleaned up). But we have declined to
apply selective retroactive effect in criminal cases
because “selective application of new rules violates the
principles of treating similarly situated defendants the same.”
League of Women Voters of Honolulu v. State, 150 Hawaiʻi 182, 207
n.39, 499 P.3d 382, 407 n.39 (2021) (citations omitted).
“[W]e ‘weigh the merits and demerits’ of retroactive
application of the particular rule in light of ‘(a) the purpose
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of the newly announced rule, (b) the extent of reliance by law
enforcement authorities on the old standards, and (c) the effect
on the administration of justice of a retroactive application of
the new standards.’” Lewi, 145 Hawaiʻi at 349 n.21, 452 P.3d at
346 n.21.
Based on these factors, we believe a purely prospective or
a full retroactive application of the new recording rule would
be inappropriate. We choose the “middle ground,” and hold that
this case’s new rule applies with “pipeline” retroactive effect.
See id. The rule is thus prospective in effect, but applies
retroactively only to cases that are on direct review or not yet
final as of the date of this case’s decision.
Regarding the first factor, we believe a purely prospective
rule undermines defendants’ constitutional rights: the right to
a fair trial, the right to confrontation, and the right against
self-incrimination. The purpose of the newly announced rule is
to protect an accused’s constitutional rights – protections we
believe are important enough to warrant limited retroactive
application. Also, retroactive application of a new rule “is
generally provided to rules designed to protect the very
integrity of the fact-finding process.” Jess, 117 Hawaiʻi at
402, 184 P.3d at 154 (cleaned up); Lewi, 145 Hawaiʻi at 349 n.21,
452 P.3d at 346 n.21. Because the recording requirement is
designed to improve the reliability of judicial and juror fact40
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finding, we believe this rule protects the integrity of our
criminal justice system’s truth-detecting function, and should
be applied retroactively.
The second factor, though, counsels against full
retroactive application of this rule. We understand that, like
here, most police-suspect interactions inside and outside the
station are recorded. But Hawaiʻi has had no recording
requirement. Given the extent of law enforcements’ reliance on
Kekona, the interests of fairness call for the rule to have a
generally prospective application. See Lewi, 145 Hawaiʻi at 349
n.21, 452 P.3d at 346 n.21.
Last, the effect of the new standard on the administration
of justice counsels against full retroactive application, yet
does not require purely prospective application. Our courts are
capable of addressing cases already on direct review (or not yet
final) challenging unrecorded custodial interrogations. Cf. id.
(declining to apply full retroactive application because the
court anticipated “a flood of [Hawaiʻi Rules of Penal Procedure]
Rule 40 petitions challenging [the Hawaiʻi Paroling Authority’s]
minimum term determinations.”).
Thus, our new rule is prospective in effect, but is applied
to Zuffante and all cases that are on direct review or not yet
final on the date of this decision.
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III.
We vacate the ICA’s judgment and the Circuit Court of the
Third Circuit’s April 6, 2023 First Amended Judgment of
Conviction and Sentence. We remand to the Circuit Court of the
Third Circuit for proceedings consistent with this opinion.
Georgette A. Yaindl /s/ Sabrina S. McKenna for petitioner
/s/ Todd W. Eddins
Frederick M. Macapinlac
for respondent /s/ Vladimir P. Devens
Jongwook Kim, Emily Hills, and
Matthew Segal (on the briefs)
for amici curiae
ACLU of Hawaiʻi Foundation and
American Civil Liberties Union
Foundation
L. Richard Fried, Jr., Jennifer
Brown, William Harrison, Lauren
Gottesman, J. Ian Downes, and
Matthew L. Mazur (on the briefs)
for amici curiae
Hawaiʻi Innocence Project and
The Innocence Project
42