State v. Tolentino

majority opinion

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Electronically Filed

Supreme Court

SCWC-XX-XXXXXXX

30-JUN-2026

08:39 AM

Dkt. 30 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---STATE OF HAWAIʻI,

Respondent/Plaintiff-Appellee,

vs.

HENRY K. TOLENTINO,

Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-XX-XXXXXXX; CASE NO. 1CPC-XX-XXXXXXX)

JUNE 30, 2026

McKENNA, ACTING C.J., AND EDDINS, JJ., AND

CIRCUIT JUDGE COPELAND, ASSIGNED BY REASON OF VACANCY; WITH GINOZA, J., CONCURRING SEPARATELY AND DISSENTING, WITH WHOM CIRCUIT JUDGE KIMURA, IN PLACE OF DEVENS, C.J., RECUSED, JOINS

OPINION OF THE COURT BY EDDINS, J.

Words spoken freely may convict. Words spoken

involuntarily may not. Pretrial voluntariness hearings exist to

tell the difference before it is too late.

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In this case, the prosecution used a defendant’s words to

convict. Yet no evidentiary hearing determined whether those

words were voluntarily spoken.

Article I, sections 5 and 10 of the Hawaiʻi Constitution,

and Hawaiʻi Revised Statutes (HRS) § 621-26 (2016) independently

require a pretrial evidentiary hearing to establish

voluntariness before the factfinder hears an inculpatory

statement. Because there was no evidentiary hearing, we vacate

the defendant’s conviction and remand for a new trial.

“I’m sorry. I was just trying to get a Zip Pac.” Henry

Tolentino said these words as two Honolulu Police Department

officers lifted him to his feet after handcuffing him.

This event followed a late-night traffic stop for speeding.

After pulling over, Tolentino stepped out of his car. The

officer drew his firearm. He ordered Tolentino to the ground.

At first, Tolentino complied. Then he rose and fled. The

officer chased him. When he caught up to Tolentino, the two

struggled. According to the officer, Tolentino kicked and

punched him. Tolentino took off again but quickly fell to the

ground after stumbling into a parked car. The officer said that

to detain and subdue Tolentino, he punched him in the face

“[a]pproximately three, no more than five” times. The two

continued to struggle until a second officer arrived and

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“collided” into them, knocking all three to the ground. The

officers cuffed Tolentino.

The State charged Tolentino with assault against a law

enforcement officer in the first degree, HRS § 707-712.5(1)(a)

(2014) (“[i]ntentionally or knowingly causes bodily injury to a

law enforcement officer who is engaged in the performance of

duty”).

Tolentino moved in limine to exclude his statement.

Neither a defense motion to suppress statements nor a

prosecution motion for voluntariness hearing had been filed. At

the motions in limine hearing, the prosecution conceded custody

but denied interrogation. Then it described the expected

factual circumstances.

The court denied the motion in limine. The excited

utterance hearsay exception applied, it ruled. Defense counsel

persisted. Only an evidentiary voluntariness hearing would

preserve Tolentino’s rights. He “would have a right to respond

and to testify if we had an actual voluntariness hearing.” The

court upheld its evidentiary ruling and rejected the request for

a hearing.

Before presenting the statement to the jury, the

prosecution asked the court to find that Tolentino’s statement

was an “utterance[]” and “not the product of coercion.” The

court did. “[T]here was no coercion, and there was no question

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asked by [the officer] when [Tolentino] made the unsolicited

excited utterance.” The statement came in as an excited

utterance. See Hawaiʻi Rules of Evidence (HRE) Rule 803(b)(2)

(hearsay exception when statement “relat[es] to a startling

event or condition made while the declarant was under the stress

of excitement caused by the event or condition”).

The jury heard Tolentino’s words. Later during closing

argument, the State used them to prove guilt. The prosecutor

told jurors that Tolentino “knew he did something wrong by

saying I’m sorry.”

The jury acquitted Tolentino of assault against a law

enforcement officer in the first degree. But it found him

guilty of the included offense of assault against a law

enforcement officer in the second degree, HRS § 707-712.6 (2014)

(“recklessly causes bodily injury to a law enforcement officer

who is engaged in the performance of duty”).

Tolentino appealed. He challenged the circuit court’s

failure to hold an evidentiary voluntariness hearing.

The Intermediate Court of Appeals (ICA) affirmed. HRS

§ 621-26 “does not expressly require the trial judge to hold a

voluntariness hearing, but the trial judge must make a

voluntariness determination before the statement is admitted and

without the jury present,” the ICA held. (Emphasis added.) It

concluded that “the circuit court made a voluntariness

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determination at trial before evidence of the out-of-court

statement was admitted and outside the presence of the jury.

Therefore, the circuit court did not err by not conducting a

separate voluntariness hearing.” (Footnote omitted.)

Tolentino appealed. We accepted cert.

II.

Involuntary statements are inadmissible. “Incriminating

statements, to be admissible in evidence, must be voluntary.”

Territory v. Young, 37 Haw. 189, 192 (Haw. Terr. 1945). The

Hawaiʻi Constitution protects a defendant’s “free and

unconstrained choice” to speak. State v. Baker, 147 Hawai‘i 413,

422, 465 P.3d 860, 869 (2020).

Evidentiary reliability is one question. Voluntariness is

another. Even “amply and convincingly corroborated” statements

are inadmissible unless made voluntarily. Id. at 431 n.26, 465

P.3d at 878 n.26.

To prevent juries from hearing involuntary statements, our

law provides a procedural safeguard. The trial court must

conduct an evidentiary voluntariness hearing before it admits a

defendant’s inculpatory statement. Due process, the right

against self-incrimination, and HRS § 621-26 compel a hearing.

We explain the contours of the hearing requirement under

each source.

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A. Due Process

The Hawaiʻi Constitution’s due process clause, article I,

section 5, protects the right to a fair trial. State v. Bowe,

77 Hawai‘i 51, 59, 881 P.2d 538, 546 (1994). Fair trials and

involuntary statements are incompatible. See State v. Eli, 126

Hawai‘i 510, 520 n.17, 273 P.3d 1196, 1206 n.17 (2012).

This court has long tethered voluntariness to due process

principles. See, e.g., Ex parte Palakiko, 39 Haw. 141, 145-46

(Haw. Terr. 1951) (“whether the petitioner’s confessions were

freely and voluntarily made, . . . also answer[s] the question

whether the use of the confessions involved a denial of due

process”); State v. Shon, 47 Haw. 158, 166, 385 P.2d 830, 836

(1963) (use of an involuntary confession “offends due process”)

(citation omitted).

Wakinekona identified three “basic considerations” for

excluding involuntary statements: (1) the inherent

untrustworthiness of those statements and the resulting threat

to trial reliability; (2) our commitment to an accusatorial

rather than inquisitorial system of justice; and (3) the

principle that the State should not break the law to achieve law

enforcement objectives. State v. Wakinekona, 53 Haw. 574, 576,

499 P.2d 678, 680 (1972). Each rationale addresses core due

process concerns - fundamental fairness and the integrity of the

outcome.

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First, reliability ensures the accuracy of factfinding.

When physical trauma, psychological pressure, mental impairment,

or external circumstances overwhelm a person’s will, their words

may not reflect reality. See Bowe, 77 Hawai‘i at 57, 881 P.2d at

544 (“[a]n involuntary confession is inherently untrustworthy

because the free will of an individual is overborne”).

Confusion, fear, a desire to de-escalate the situation, or an

impaired capacity for rational thought may motivate a person’s

words. Some circumstances make a person an unreliable truthteller.

Second, our system’s accusatorial character forces the

State to prove its case through “independently and freely

secured” evidence. Baker, 147 Hawai‘i at 436, 465 P.3d at 883

(quoting Rogers v. Richmond, 365 U.S. 534, 541 (1961)). The

prosecution may not therefore use a defendant’s own words to

convict, unless it proves those words were voluntarily spoken.

Id.

Third, due process forbids the State from obtaining guilty

verdicts and guilty pleas by methods the justice system

execrates. The government cannot erode liberty through

lawlessness. Wakinekona, 53 Haw. at 576, 499 P.2d at 680.

Evidentiary hearings are constitutionally required to avoid

these hazards and detect involuntariness. Omitting the hearing

produces two due process violations.

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One, there is a substantive violation if the statement was

in fact involuntary. See Eli, 126 Hawai‘i at 520 n.17, 273 P.3d

at 1206 n.17 (“due process, based on article 1, section 5 of the

Hawai‘i Constitution, requires a statement to be ‘voluntary’ in

order to be admissible”). Two, denying the evidentiary hearing

itself violates due process, regardless of whether the statement

was actually voluntary. See State v. Green, 51 Haw. 260, 264,

457 P.2d 505, 508 (1969) (“trial judge has a duty to determine

the admissibility of an inculpatory statement out of the

presence of the jury and prior to the jury’s exposure to such

evidence”); State v. Naititi, 104 Hawaiʻi 224, 233, 87 P.3d 893,

902 (2004) (citing Jackson v. Denno, 378 U.S. 368, 382-83

(1964)) (“failure to conduct hearing into voluntariness of

defendant’s confession amount[s] to denial of due process”).

The procedural due process violation is no less serious

than the substantive one. Once the jury hears an involuntary

statement, the damage is done. Due process demands “a fair

hearing and a reliable determination” of voluntariness before

that happens. See Jackson, 378 U.S. at 377; State v. Mitake, 64

Haw. 217, 221-22, 638 P.2d 324, 328 (1981) (admissibility of

identification evidence).

“Due process is versatile. Context shapes the process that

is due.” Interest of JH, 152 Hawai‘i 373, 381, 526 P.3d 350, 358

(2023). Article I, section 5 “is agile. . . . [It] calls for

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such procedural protections as the particular situation

demands,” especially those “necessary to preserve the integrity

of the judicial process.” State v. Zuffante, 157 Hawai‘i 194,

207, 576 P.3d 243, 256 (2025).

Rights without enforcement are hollow. Procedural

protections animate due process and the right against selfincrimination. Evidentiary hearings, like other safeguards,

make the rights real. They transform constitutional text into

constitutional reality.

The evidentiary hearing itself is the constitutional

requirement. Within that hearing, defendants enjoy procedural

rights. As with suppression hearings, defendants may testify at

voluntariness hearings without that testimony being used against

them at trial. State v. Chang, 144 Hawai‘i 535, 545, 445 P.3d

116, 126 (2019). Courts must inform defendants of this

protection so the choice to testify or not is made knowingly and

voluntarily. Id.

Skipping a voluntariness hearing snips process and deprives

the defendant of these protections. Condensed procedures do not

satisfy article I, section 5. Courts may not cut corners when

“due process rights stakes are high.” Zuffante, 157 Hawai‘i at

208, 576 P.3d at 257.

The criminal justice system chooses free will. “[D]ue

process derives much of its meaning from a conception of

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fundamental fairness that emphasizes the right to make vital

choices voluntarily.” Bowe, 77 Hawai‘i at 59, 881 P.2d at 546

(quoting Colorado v. Connelly, 479 U.S. 157, 176 (1986)

(Brennan, J., dissenting)). “This right requires vigilant

protection if we are to safeguard the values of private

conscience and human dignity.” Id.

We clarify that a reliable judicial determination of

voluntariness means a pretrial evidentiary proceeding where

facts are developed, tested, and found.

Perfunctory review, prosecutorial representations, and

hearsay analyses do not constitute a “reliable determination.”

Due process demands a hearing with three essential pieces:

under oath testimony, cross-examination, and evidence-based

findings.

Argument is not evidence. Proffers are not evidence.

Testimony is.

B. Right Against Self-Incrimination

Freedom of choice, to speak or not to speak, is article I,

section 10’s essence. Haw. Const. art. I, § 10 (“No person

shall . . . be compelled in any criminal case to be a witness

against oneself.”). The voluntariness requirement links to the

right against self-incrimination, not just to due process.

State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 69 (1993)

(right against self-incrimination requires that all

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“extrajudicial admissions of guilt” must be “voluntarily

given”); State v. Matsumoto, 145 Hawaiʻi 313, 324-25, 452 P.3d

310, 321-22 (2019) (assessing coercive interrogation tactics

under a right against self-incrimination framework).

An inculpatory statement must flow from the defendant’s

free and voluntary choice. If it doesn’t, the factfinder may

not hear the statement. This rule “reflects a recognition of

the importance of free will[.]” Bowe, 77 Hawaiʻi at 58, 881 P.2d

at 545 (quoting Connelly, 479 U.S. at 176 (Brennan, J.,

dissenting)). It preserves the autonomy and dignity interests

underlying the right against self-incrimination. See State v.

Kamana‘o, 103 Hawai‘i 315, 320, 82 P.3d 401, 406 (2003).

Article I, section 10 operates through procedural

safeguards to fulfill its promise. See, e.g., State v.

Santiago, 53 Haw. 254, 492 P.2d 657 (1971) (Miranda warnings);

State v. Hewitt, 153 Hawai‘i 33, 43, 526 P.3d 558, 568 (2023)

(same); Tachibana v. State, 79 Hawaiʻi 226, 900 P.2d 1293 (1995)

(mandatory colloquy and on-the-record waiver to protect right to

testify); State v. Pomroy, 132 Hawai‘i 85, 92, 319 P.3d 1093,

1100 (2014) (mandatory colloquy and on-the-record waiver to

protect right not to testify); Zuffante, 157 Hawaiʻi at 201, 576

P.3d at 250 (videorecording custodial interrogations).

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A voluntariness hearing enforces the right not to be a

witness against oneself. A hearing verifies words were freely

spoken before the prosecution uses them to prove guilt.

Most inculpatory statements arise during police encounters.

Free will though may be overcome without state involvement. The

constitutional principles that compel a hearing transcend police

conduct. See Bowe, 77 Hawai‘i at 57-58, 60-61, 881 P.2d at 544-45, 547-48.

Custody or no custody. Interrogation or no interrogation.

Those familiar considerations are sometimes beside the point.

Involuntariness has many sources. Physical trauma, mental

health crisis, medical emergency, violent confrontation, or fear

may crush free will without police questioning. See Kelekolio,

74 Haw. at 503, 849 P.2d at 69-70 (“mental and physical

condition” is relevant to voluntariness); id. (citing

Commonwealth v. Peterson, 424 S.E.2d 722, 723-24 (Va. Ct. App.

1992)) (physical trauma, pain, impaired breathing, blurred

vision, and cocaine intoxication - not police conduct – rendered

the defendant’s statements involuntary).

The constitutional inquiry is both singular and decisive.

Did the defendant speak voluntarily given all the circumstances?

See Kelekolio, 74 Haw. at 502, 849 P.2d at 69. Only an

evidentiary hearing reliably answers that question. It is a

“reasonable and necessary safeguard, essential to the protection

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of the . . . right against self-incrimination[.]” Zuffante, 157

Hawai‘i at 208, 576 P.3d at 257.

A hearing makes the right against self-incrimination real,

not theoretical. It prevents a jury from hearing the

defendant’s statement until the court determines voluntariness.

The super-probative value of an accused’s words necessitates

pretrial vetting. See id. at 203, 576 P.3d at 252.

A hearing also prevents procedural shortcuts. The

prosecution’s proffer will not do. Hearings provide defendants

with a meaningful opportunity to contest the circumstances

surrounding their statements. What’s more, a hearing aids

appellate review. It creates a reliable record. A

voluntariness determination “often requires a rigorous review”

of the evidence. State v. Kazanas, 138 Hawaiʻi 23, 41, 375 P.3d

1261, 1279 (2016).

C. HRS § 621-26

The constitutional protections under article I, sections 5

and 10 separately require voluntariness hearings for inculpatory

statements. HRS § 621-26 reinforces these constitutional

obligations. But it does not create them. This distinction

matters. Legislatures may repeal or amend statutes.

Constitutional protections are not so easy to alter. And when

the two collide, constitutional protections win.

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Beyond constitutional essentials, though, HRS § 621-26

independently mandates voluntariness hearings. “No confession

shall be received in evidence unless it is first made to appear

to the judge before whom the case is being tried that the

confession was in fact voluntarily made.” HRS § 621-26.

HRS § 621-26’s language creates obligations distinct from

the right against self-incrimination and constitutional due

process. This law carries forward common law principles that

trace to the Kingdom of Hawaiʻi. See, e.g., The King v.

Paakaula, 3 Haw. 30, 39 (Haw. Kingdom 1867) (confession “is

legitimate evidence” only if “freely and voluntarily made”); see

also Naititi, 104 Hawaiʻi at 234, 87 P.3d at 903 (quoting Bowe,

77 Hawai‘i at 61, 881 P.2d at 548 (Klein, J., concurring))

(“leading authorities” show that “HRS § 621–26 was essentially a

codification of the common law rule against coerced

confessions”).

HRS § 621-26 - like article I, sections 5 and 10 - applies

to all statements qualifying as “inculpatory statements.”

Though the statute speaks of a “confession,” this court has

interpreted that noun to cover any inculpatory statement, not

just an admission of guilt. See Green, 51 Haw. at 264, 457 P.2d

at 508; Kelekolio, 74 Haw. at 501 n.13, 849 P.2d at 69 n.13.

For good reason. A pinched reading of “confession” defangs

HRS § 621-26. Prosecutions are assembled through forensic

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evidence, witness testimony, documentary and physical evidence,

surveillance footage, and more. Prosecutors also rely on

partial admissions, ambiguous remarks, or other statements by a

defendant that tend to establish guilt. Admissions to every

element are less frequent. Narrowing the statute to complete

confessions would exclude the very statements prosecutors

typically rely on to convict.

For inculpatory statements the statute is absolute. No

hearing, no admission. Voluntariness hearings are a “statutory

requirement.” Naititi, 104 Hawaiʻi at 233, 87 P.3d at 902

(“[p]ursuant to HRS § 621–26, the trial court must make a

determination of voluntariness[;] . . . [w]hether a motion to

determine the voluntariness . . . is initiated by the

prosecution, the defense, or sua sponte by the trial court, is

ultimately immaterial to the statutory requirement of a

voluntariness hearing”).

The ICA erred by reading HRS § 621-26 to require only a

voluntariness determination, not an evidentiary hearing.

HRS § 621-26 has four textual features that compel

evidentiary hearings. First, the statute says “No,” foreclosing

admission as the default. Second, “made to appear” means

evidence, not argument. Witness testimony, documents, and

physical evidence support factual findings. Proffers, legal

argument, and advocacy do not. The statute calls for proof, not

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persuasion. Lawyers talk. Evidence proves. Third, “in fact”

separates evidence from conclusion. A court may determine,

find, or conclude voluntariness by legal reasoning, like it does

with hearsay exceptions. But it can only establish

voluntariness “in fact” through evidence that shows the actual

circumstances of the statement. Fourth, “first” fixes the

sequence. No statement may be “received in evidence” until the

State proves voluntariness.

Together, these textual elements lead to one conclusion.

Before any inculpatory statement goes to the jury, the

prosecution must establish voluntariness through evidence.

The legislature could have written a permissive rule. It

did not. The statute forbids admission until voluntariness is

established through evidence at a hearing before trial. The

command is unconditional.

Once a statement reaches the jury without that hearing, the

statutory violation is complete. No later hearing can undo what

the jury heard. The statute does not permit a backward-looking

cure. Not after a verdict, not on appeal, and not on remand.

III.

The circuit court admitted Tolentino’s statement as an

excited utterance. So the jury heard him say, “I’m sorry. I

was just trying to get a Zip Pac.” The jury also listened to

the circumstances surrounding Tolentino’s words.

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The ICA agreed with both the trial court’s hearsay ruling

and its belief that HRS § 621-26 requires only a voluntariness

determination, not an evidentiary hearing.

Courts err by conflating evidentiary and constitutional

doctrines. A statement’s classification as an “excited

utterance” or as any hearsay exception (like a HRE Rule

803(a)(1) admission by party-opponent), does not resolve the

constitutional question of voluntariness.

Hearsay rules and constitutional voluntariness protections

serve different purposes. A statement may be spontaneous

because no question prompted it, yet involuntary because

coercion, pain, injury, or other circumstances overbore the

speaker’s will. See Kelekolio, 74 Haw. at 503, 849 P.2d at 70.

The court’s assessment depends on whether the statement was in

fact “freely and voluntarily given.” Id. at 501, 849 P.2d at

69.

The trial court makes two constitutional determinations

before applying evidentiary rules. First Miranda. The court

determines whether custodial interrogation took place and

whether officers gave warnings. Hewitt, 153 Hawai‘i at 43, 526

P.3d at 568. Second voluntariness. Courts “examine the entire

record and make an independent determination of the ultimate

issue of voluntariness based on the totality of circumstances.”

Kazanas, 138 Hawaiʻi at 41, 375 P.3d at 1279. Only after a

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statement satisfies constitutional requirements does the trial

court address hearsay admissibility.

The circuit court applied the excited utterance hearsay

exception. HRE Rule 803(b)(2) applies to statements “relating

to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or

condition.” Like other hearsay exceptions, the rule rests on a

reliability theory. The stress of excitement makes fabrication

unlikely.

The circuit court’s excited utterance analysis looked at

hearsay reliability. Yet it overlooked the separate

constitutional voluntariness inquiry. Sure, a statement may be

a reliable excited utterance. But it still may be involuntary

if the rule’s very stress - combined with pain, fear, confusion,

coercion, or any other overbearing external influence -overcomes the defendant’s will. The inquiries are distinct.

See Baker, 147 Hawai‘i at 431 n.26, 465 P.3d at 878 n.26 (“The

question of coercion is separate from that of reliability.”).

The circuit court and the ICA erred by using the excited

utterance hearsay exception to bypass an evidence-based

voluntariness determination. When a trial court admits an

inculpatory statement without receiving evidence at a hearing

and finding voluntariness, the court ducks its gatekeeping role.

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Here, no witness testified about the violent event before

the prosecution presented trial evidence. The court relied

solely on the prosecution’s representations to admit Tolentino’s

statement. Tolentino had no chance to offer evidence, testify,

or cross the prosecution’s witnesses before the jury heard his

statement.

Omitting the voluntariness hearing violated article I,

sections 5 and 10, and HRS § 621-26.

The court’s failure to hold a hearing may have resulted in

both substantive and procedural due process violations.

Substantively, if the statement was involuntary, using it to

convict violated due process. But who knows? We cannot

determine actual voluntariness without an evidentiary record.

The procedural violation, however, is clear. The hearing itself

was required. The trial court denied the evidentiary hearing

article I, section 5 demands. See Green, 51 Haw. at 264, 457

P.2d at 508.

The admission of Tolentino’s statement also violated

article I, section 10. This provision serves as a procedural

safeguard. Before the State may use a defendant’s inculpatory

statement, the Hawaiʻi Constitution requires proof of

voluntariness. See Kelekolio, 74 Haw. at 502, 849 P.2d at 69.

HRS § 621-26 supplies a third, independent requirement.

The prosecution used Tolentino’s words to convict. Yet it never

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established at an evidentiary hearing that those words were “in

fact” freely made.

These errors were not harmless.

The use of a defendant’s inadmissible inculpatory statement

is evaluated under the “harmless beyond a reasonable doubt”

standard. Baker, 147 Hawai‘i at 435, 465 P.3d at 882. We ask

“whether there was a reasonable possibility that the error

[might have] affected the outcome[.]” State v. Aplaca, 96

Hawaiʻi 17, 26, 25 P.3d 792, 801 (2001). Because a hung jury

mistrial is a different outcome, “[t]he reasonable possibility

standard, then, is satisfied if there’s a showing that it’s

reasonably possible that, . . . a single juror would have voted

differently.” State v. Hirata, 152 Hawai‘i 27, 33, 520 P.3d 225,

231 (2022).

There is a reasonable possibility that Tolentino’s

statement might have contributed to his conviction for

recklessly causing bodily injury to a law enforcement officer

engaged in the performance of duty. See HRS § 707-712.6.

An apology’s consciousness of guilt quality is potent.

Here, the State spotlighted Tolentino’s statement during

closing. “He knew he did something wrong by saying I’m sorry,”

the prosecution urged. The State argued the statement proved

Tolentino acted intentionally or knowingly and committed the

assault offense as charged.

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The jury’s verdict reflected only reckless conduct.

Apologies however do not distinguish between intentional and

reckless conduct. People apologize for both. And when they do,

a rational inference is that they concede responsibility for

their conduct.

“An accused’s words matter. Confessions have more impact

on verdicts than other evidence.” Zuffante, 157 Hawaiʻi at 203,

576 P.3d at 252. Tolentino’s apology might have contributed to

his conviction. Cf. Baker, 147 Hawai‘i at 435, 465 P.3d at 882

(admission of an involuntary statement is not harmless error

when the “conviction is largely dependent on a jury’s

determination as to the credibility of the complainant’s

testimony” and the erroneous admission “contributes to the

credibility of that testimony”).

IV.

The dissent agrees that the trial court erred.

We disagree on what to do about it. Relying on Jackson v.

Denno, 378 U.S. 368 (1964) and State v. Goers, 61 Haw. 198, 600

P.2d 1142 (1979), the dissent would remand for a post-trial

voluntariness hearing.

We hold that article I, sections 5, 10, and 14 of the

Hawaiʻi Constitution, and HRS § 621-26 require a new trial.

Several reasons compel a new trial.

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First, the dissent’s reliance on Jackson and Goers

overlooks the autonomous nature of our state’s constitutional

tradition. Jackson interprets the federal due process clause.

Goers followed Jackson but failed to engage in the statespecific interpretive work required to honor the role our

constitution demands.

The Hawaiʻi Constitution is a sovereign document that this

court interprets independently of federal precedent. State v.

Wilson, 154 Hawaiʻi 8, 14, 543 P.3d 440, 446 (2024); State v.

Kaluna, 55 Haw. 361, 369 n.6, 520 P.2d 51, 58 n.6 (1974).

Independence is not optional. It is a constitutional

command, not a doctrinal preference. “State constitutions have

a distinct role under our nation’s system of federalism.

Deciding a case first on state constitutional grounds respects

state sovereignty and aligns with a key constitutional design

feature – subnational governance.” Wilson, 154 Hawaiʻi at 14,

543 P.3d at 446.

As independent sources of law, each constitution carries

its own interpretive authority. We rely on the traditional

tools of constitutional interpretation: text, canons of

construction, purpose and consequences relative to purpose,

precedent, structural design, and historical, social, and

cultural context. See Hilo Bay Marina, LLC v. State, 156 Hawaiʻi

478, 511, 575 P.3d 568, 601 (2025). Our court is also uniquely

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inspired by the Aloha Spirit, Hawaiʻi values, and a profound

respect for human and nature’s dignity. Id. Honoring our

constitution means giving it a reading shaped by Hawaiʻi and the

people who adopted it — not through federal precedent about a

different document.

Just months ago, this court said it again in Zuffante.

Article I, section 5 does more than federal due process,

operates differently, and “offers safety to Hawaiʻi’s people that

exceeds the federal constitution’s suddenly fluid protections.”

Zuffante, 157 Hawaiʻi at 200, 576 P.3d at 249.

Hawaiʻi’s due process clause controls this case. No federal

precedent, Jackson included, can displace it. Article I,

section 5 is not simply the federal constitution in different

words. It is a distinct Hawaiʻi mandate for fairness - agile,

independent, and rooted in our own constitutional tradition.

HRS § 621-26 reinforces this boundary. Our law has no

federal analogue. Its absolutism is a Hawaiʻi creation. Jackson

did not consider it. Jackson cannot constrain it.

The outcome in Jackson is a specific remedial accommodation

rooted in federalism. When a state trial court denied a

voluntariness hearing, Jackson permitted a post-trial cure - a

remand for a hearing and reinstatement of the conviction if the

statement was found voluntary. 378 U.S. at 391-95. This

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approach flowed from the federal courts’ deference to state

criminal proceedings already concluded. Jackson itself stressed

that imposing a federal remand-and-retry rule would interfere

with the proper federal-state relationship and the state’s

freedom to choose its own remedy. Id. at 395. The case

governed federal review of state convictions and nothing more.

See id. at 393 (The defendant “is entitled to a determination of

the voluntariness of his confession in the state courts in

accordance with valid state procedures.”) (emphasis added).

Federal precedent like Jackson cannot disturb the

autonomous guarantees afforded under the Hawaiʻi Constitution.

This court has an independent, essential duty to provide the

broader safeguards our state constitution advances. While Goers

imported the federal remedy in 1979, we decline the invite to

apply it now. The proper remedy is a new trial.

The dissent reads Chang narrowly, suggesting the

prospective rule against condensing pretrial procedures rested

only on Hawaiʻi Rules of Penal Procedure (HRPP) Rule 12(e), the

State’s right to appeal under HRS § 641-13(7) (2014), and

“administrative complications.”

That view is half-right. Chang did rely on those rule-andstatute grounds to declare consolidation impermissible. But

Chang’s reasoning ran deeper.

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The court’s animating concern was that consolidation made

it impossible for a defendant to exercise the right to testify

at a suppression hearing without exposing that testimony to use

at trial. Chang, 144 Hawaiʻi at 545, 445 P.3d at 126. This

concern is constitutional, rather than administrative.

It belongs to the article I, section 14 right to present a

defense, the article I, section 10 right against compelled selfincrimination, and the article I, section 5 right to a fair

trial. The first of these subsumes the right to testify.

Together these provisions safeguard a defendant’s freedom to

speak at a voluntariness hearing without that testimony

following them to trial. Id. A defendant testifying about the

circumstances of a statement must be able to do so without the

testimony being used against them at trial. Id. (recognizing

the protection); see also HRS § 621-26 (requiring evidence at

the hearing).

Goers permitted voluntariness determinations “at any time

prior to the admission of the confession into evidence.” 61

Haw. at 201, 600 P.2d at 1144. While this enabled during-trial

hearings, its lockstep adherence to Jackson effectively imported

a federal remedial framework (including post-appeal cures)

without considering its incompatibility with the Hawaiʻi

Constitution or HRS § 621-26. We now decline to follow that

scheme.

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Chang’s recognition of inseverable pretrial protections

clashes with Goers' any time allowance. The statutory and

constitutional protections only work if the hearing happens

before trial. Essential safeguards like the right to testify

without trial use and an informed colloquy fail to function

properly when a hearing is delayed until after the State has

begun its case. Chang, 144 Hawaiʻi at 545, 554, 445 P.3d at 126,

135.

We resolve this conflict today.

We overrule Goers to the extent it permits voluntariness

determinations after trial begins. The constitution and the

statute require a pretrial hearing that occurs before trial.

This timing ensures that the procedural protections Chang

identified are not compromised by a during-trial or post-trial

posture.

Second, the procedural violation is itself the

constitutional and statutory injury. The standalone violation

of the Hawaiʻi Constitution and HRS § 621-26 does not depend on

whether the statement was actually voluntary. Failing to

conduct a voluntariness hearing denies due process. Naititi,

104 Hawaiʻi at 233, 87 P.3d at 902 (citing Jackson, 378 U.S. at

382-83). Once the jury hears the words without a hearing, the

constitutional injury is complete. The damage is done.

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The dissent’s remand asks one question: Was the statement

voluntary? That’s the wrong question. The right question is

whether Tolentino received the constitutionally and statutorily

required process. He did not.

Because the procedural violation is a standalone injury, no

postponed finding can supply what the law required before trial.

HRS § 621-26 forbids receiving a statement until voluntariness

is “first made to appear.” Once that command is violated, the

injury is complete. A voluntariness ruling made years later

does not reverse the violation; it only confirms it occurred.

Third, the protections a pretrial hearing provides cannot

be retroactively restored. At a pretrial hearing, a defendant

speaks freely about the circumstances of the statement,

including any physical trauma, coercion, or impaired mental

state, because hearing testimony cannot be used at trial.

Chang, 144 Hawaiʻi at 545, 445 P.3d at 126. That guarantee

presupposes a trial yet to come. After conviction, Chang’s wall

between the hearing and the trial collapses. While hearing

testimony cannot be used at a trial that has already happened,

that same testimony determines whether the existing conviction

stands. In this posture, the protection is drained.

The strategic posture is equally compromised. At a

pretrial hearing, no trial testimony exists and no verdict has

been rendered. The defendant weighs whether to contest

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voluntariness without knowing how trial will unfold. A postconviction hearing eliminates that calculus because the trial

record is fixed and the verdict is known. The defendant must

then decide whether to testify in a proceeding designed to

validate the very conviction the appeal challenged. If the

defendant chooses to testify, the words merely shape a case

already decided. If the defendant stays silent, the prosecution

establishes voluntariness unopposed by using the full trial

record. Either way, the defendant does not enjoy the procedural

protections Chang guarantees.

Defense counsel recognized this at the motions in limine

hearing. Tolentino “would have a right to respond and to

testify if we had an actual voluntariness hearing.” That right

was denied. A post-appeal hearing does not revive it. It

offers a different proceeding, in a different posture, at a

different stage.

Fourth, time has eroded the record. The event occurred on

September 21, 2019, over six years ago. Tolentino’s statement

followed a late-night traffic stop, a foot chase, a physical

struggle, three to five punches to the face, a collision with a

parked car, and a second officer’s tackle. These circumstances

bear directly on voluntariness. See Kelekolio, 74 Haw. at 503,

849 P.2d at 69-70 (physical and mental condition relevant to

voluntariness). The factual granularity a voluntariness hearing

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demands - including the officers’ precise observations of

Tolentino’s demeanor, coherence, signs of head injury, level of

disorientation, and indicia of intoxication - degrades with

time. A hearing held now is not the hearing the constitution

contemplated; it is a reconstruction from faded memory. Due

process under article I, section 5 requires more.

Fifth, the error was not harmless under Hawaiʻi’s stringent

standard. This court asks whether there is a reasonable

possibility that the error might have contributed to the

conviction. Hirata, 152 Hawaiʻi at 33, 520 P.3d at 231.

The prosecution used the statement as direct proof of

guilt. In closing argument, the prosecutor told the jury that

Tolentino “knew he did something wrong by saying I’m sorry.”

The jury acquitted on the intentional charge and convicted on

the reckless lesser-included offense. Consciousness-ofwrongdoing evidence plays directly into a reckless mental-state

determination, which was precisely the use the prosecution made

of Tolentino’s apology. We cannot say there is no reasonable

possibility the statement contributed to the verdict. A

backward-looking voluntariness finding does not change that.

The statement reached the jury, the jury weighed it, and the

verdict was rendered.

Sixth, the dissent’s framework produces a remedial

asymmetry. If the statement was involuntary, the post-trial

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hearing leads to a new trial, the same remedy we order today.

However, if the statement is found voluntary, the conviction

stands despite the undisputed procedural violation. Heads, the

State breaks even; tails, the State wins. The framework gives

the prosecution a second chance to establish what it failed to

prove the first time. Yet it provides the defendant no relief

for the constitutional and statutory injury already suffered.

We do not permit such asymmetry for analogous procedural

rights, like Tachibana colloquies or jury trial waivers. The

right is violated at the time of trial.

The remedy is a new trial where the constitutional and

statutory right is vindicated. On remand, if the State intends

to use Tolentino’s statement, it must first establish

voluntariness at an evidentiary hearing that satisfies article

I, section 5, HRS § 621-26, and the framework set forth in Part

This hearing will occur in the posture the Hawaiʻi

Constitution and the statute contemplate. If the statement is

found to be voluntary, it may be admitted. If it is not, the

trial proceeds without it. That is the process the law

requires. It should have happened before the first trial and

will occur before the second.

The error was not harmless. Tolentino gets a new trial.

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The lower courts misapplied the constitutional and

statutory requirements for pretrial evidentiary voluntariness

hearings. We address two questions to guide trial courts going

forward. First, when hearings are required. Second, how they

are conducted.

A. Defining “Inculpatory Statement”

We define “inculpatory statement” and clarify when that

definition prompts the trial court’s duty to conduct a pretrial

voluntariness hearing.

The definition of an “inculpatory statement” is broad and

extends beyond full confessions. It includes any words spoken

by the defendant that allows the factfinder to infer guilt. An

inculpatory statement is any statement made by a defendant that

“admits a fact, circumstance or involvement which tends to

establish guilt or from which guilt may be inferred.”

Kelekolio, 74 Haw. at 501 n.13, 849 P.2d at 69 n.13 (quoting

Black’s Law Dictionary 768 (6th ed. 1990)). Inculpatory effect,

not form, controls the analysis.

To aid trial courts, we identify core types of statements

that exemplify the scope of the definition.

Express admissions relating to the charged or included

offense, or facts establishing material elements, are

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inculpatory. Ambiguous admissions likewise necessitate the

hearing requirement.

Statements used to show consciousness of wrongdoing through

their falsity also serve an inculpatory purpose. A false alibi

is a classic example. Similarly, a statement contradicted by

other evidence, when offered to show that the defendant lied

because of consciousness of guilt, is inculpatory in character.

These core types represent the primary ways the State

deploys a defendant’s words to secure conviction. While they

show the range of the definition, they are not exhaustive.

Applying the law requires examining the specific facts of each

case. Courts must assess the inculpatory character of a

statement through the totality of the circumstances.

Content and language matter. Courts consider what the

defendant said. Does the statement admit criminal conduct,

culpable state of mind, or facts from which juries may infer

guilt?

Context also matters. A statement’s inculpatory nature

depends on context, not words alone. A statement innocuous in

one setting may incriminate in another. For instance, neutralsounding words may become inculpatory when spoken during arrest,

while struggling with police, or when confronted with evidence.

Another relevant consideration is intended use. Courts

should look at the prosecution’s purpose. Will the State use

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the statement to prove state of mind, establish conduct, or link

the defendant to a charged or included offense? A statement’s

phrasing does not exempt it from constitutional or statutory

vetting if the prosecution uses the words to establish guilt.

The standard asks whether a statement tends to establish

guilt. Kelekolio, 74 Haw. at 501 n.13, 849 P.2d at 69 n.13.

The inquiry focuses on the actual role the statement plays in

the prosecution’s case; specifically whether the statement helps

prove an element, undermines a defense, shows motive, suggests

consciousness of wrongdoing, or otherwise meaningfully

contributes to the State’s proof. Statements with only an

attenuated bearing on guilt fall outside the framework.

Constitutional principles compel this scope. Article I,

section 5 and 10’s requirements activate whenever the State

seeks to use a defendant’s own words as evidence of guilt. See

Wakinekona, 53 Haw. at 576, 499 P.2d at 680 (due process

prevents the State’s use of any involuntary “extra-judicial

admission[] of guilt”); Kelekolio, 74 Haw. at 501 n.13, 849 P.2d

at 69 n.13 (there is “no meaningful distinction between a

‘confession’ and an ‘inculpatory statement’ for purposes of the

right against self-incrimination”).

A broad scope aligns with our precedent. This court has

long interpreted “confession” in HRS § 621-26 to include more

than just outright admissions of guilt. See Green, 51 Haw. at

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264, 457 P.2d at 508 (invoking HRS § 621-26 to require trial

courts to determine the voluntariness of any “inculpatory

statement”). Our jurisprudence reflects a commitment to

protecting against the use of any involuntary statement –

whether a partial admission, an ambiguous remark, or a statement

that otherwise supports the prosecution’s case - that may

contribute to a conviction. See Kelekolio, 74 Haw. at 502, 849

P.2d at 69. Because these statements serve the same

prosecutorial purpose as a full-fledged confession, we adopt an

inclusive, functional definition.

Here, Tolentino’s statement, “I’m sorry. I was just trying

to get a Zip Pac,” qualifies as an inculpatory statement. The

apology is ambiguous. It could imply that Tolentino believed he

did something wrong. And that’s how the prosecution understood

it, using the statement as direct proof of guilt. Tolentino

“knew he did something wrong by saying I’m sorry,” the

prosecutor told the jury.

B. Framework for Voluntariness Hearings

Inculpatory character is a constitutional catalyst for

procedural protections. Once a statement falls within the

definition, the constitutional and statutory framework dictates

how voluntariness must be determined. The hearing framework has

six essential features.

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First, courts must conduct voluntariness hearings pretrial

for known inculpatory statements. HRPP Rule 16(b)(1)(ii)

already requires the State to disclose the defendant’s written,

recorded, and oral statements before trial. When the

prosecution intends to introduce a disclosed statement as

evidence of guilt – thereby meeting our definition of an

inculpatory statement - due process and HRS § 621-26 require a

pretrial evidentiary hearing.

A narrow exception to the pretrial requirement covers

statements the prosecution could not have disclosed. When an

inculpatory statement emerges unexpectedly at trial, the trial

court must determine voluntariness “out of the presence of the

jury and prior to the jury’s exposure to such evidence.” Green,

51 Haw. at 264, 457 P.2d at 508. Failure to make that

determination before the words are admitted creates the same

constitutional injury as failure to hold a pretrial hearing. It

warrants the same remedy, a new trial.

Second, either side may move for a hearing. The defense

often moves to suppress statements. See, e.g., Bowe, 77 Hawai‘i

at 53, 881 P.2d at 540; Chang, 144 Hawaiʻi at 537, 445 P.3d at

118. And the State routinely files motions to determine

voluntariness. See, e.g., Baker, 147 Hawai‘i at 416, 465 P.3d at

863; Eli, 126 Hawai‘i at 514, 273 P.3d at 1200. Even without a

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motion, the court has a duty to order a hearing on its own. See

Naititi, 104 Hawaiʻi at 233, 87 P.3d at 902.

Third, these are evidentiary hearings. Because

voluntariness turns on disputed facts and circumstances,

including the defendant’s physical condition, mental state, and

the presence of coercion, courts must develop an evidentiary

record. Argument or proffers do not establish voluntariness.

Only evidence does. The prosecution has the burden to prove

voluntariness by a preponderance of the evidence. See State v.

Martin, 146 Hawai‘i 365, 385, 463 P.3d 1022, 1042 (2020). Both

parties may call and cross-examine witnesses and present

evidence. The court hears that evidence and enters findings.

Fourth, a defendant may testify at a voluntariness hearing

without worry that their testimony will be used in any way at

trial. See Chang, 144 Hawaiʻi at 545, 445 P.3d at 126 (defendant

“ha[s] the right to testify for the purpose of [a] motion to

suppress without having that testimony used against [them] at

trial”). This shield maintains a wall between the hearing and

the trial, letting an accused speak freely about the environment

surrounding their statement.

Next, two distinct colloquy requirements apply.

First, the court should conduct a brief colloquy at the

voluntariness hearing. To facilitate an informed decision, the

court provides this colloquy after the prosecution completes its

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evidence, when the defendant can assess what the State has

presented. The court should confirm the defendant understands:

(1) the hearing decides only whether the statement was

voluntary; it does not address guilt or innocence; (2) there is

both a right to testify and not to testify at the hearing; (3)

testimony, if given, is limited to the statement’s circumstances

and is inadmissible at trial, see Chang, 144 Hawaiʻi at 545, 445

P.3d at 126; and (4) the decision belongs to the defendant after

consulting with counsel, and is the defendant’s choice.

Second, a separate colloquy is required when a defendant

waives the hearing. While a defendant may stipulate to the

voluntariness of their statement, a waiver requires judicial

confirmation. When a defendant wants to waive a voluntariness

hearing, the court should confirm the defendant understands:

(1) the prosecution intends to introduce the statement at trial;

(2) the right to a hearing to challenge voluntariness exists;

(3) testimony offered at a hearing cannot be used at trial; and

(4) the decision to waive belongs to the defendant after

consulting with counsel, and is the defendant’s choice.

Despite waiver, courts retain authority to order hearings

when circumstances suggest involuntariness. See Provident

Funding Assocs., L.P. v. Gardner, 149 Hawaiʻi 288, 299, 488 P.3d

1267, 1278 (2021) (quoting Gakiya v. Hallmark Props., Inc., 68

Haw. 550, 555, 722 P.2d 460, 464 (1986)) (“stipulations [may] be

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set aside or modified in order to prevent manifest injustice”).

Here, for instance, the context of Tolentino’s statement

compelled a hearing. The circumstances - temporal proximity

between violence and statement, a head injury, custody, and

possible confusion or disorientation (insisting he was “trying

to get a Zip Pac”) - raised serious questions about

voluntariness. A stipulation of voluntariness would not have

been sufficient.

Voluntariness hearing colloquies may be less extensive than

for trial testimony or plea changes. Those advisements address

more fundamental constitutional choices. Tachibana colloquies

address a crucial defendant decision. See Tachibana, 79 Hawaiʻi

at 236, 900 P.2d at 1303 (right to testify); State v. Torres,

144 Hawai‘i 282, 294, 439 P.3d 234, 246 (2019) (right not to

testify); Hirata, 152 Hawai‘i at 34, 520 P.3d at 232 (“[t]he

choice to testify, or not, is the biggest decision a defendant

makes at trial”). And change of plea colloquies address waiver

of trial and admission of guilt. See State v. Solomon, 107

Hawaiʻi 117, 127, 111 P.3d 12, 22 (2005) (plea colloquy); Wong v.

Among, 52 Haw. 420, 425, 477 P.2d 630, 634 (1970) (“[a] plea of

guilty in itself is a conviction and a simultaneous waiver of

several important constitutional guarantees”).

In contrast, voluntariness hearings resolve a discrete

admissibility question before trial. Because the constitutional

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stakes are lower, deficiencies in voluntariness hearing

advisements are less constitutionally significant than

deficiencies in Tachibana or plea colloquies.

Sixth, the trial court must make findings of fact and

conclusions of law on voluntariness. This final procedural

feature ensures a reliable record for review by documenting the

court’s assessment of the disputed circumstances surrounding the

defendant’s words. See, e.g., Naititi, 104 Hawaiʻi at 230-31, 87

P.3d at 899-900.

In sum, fundamental fairness forbids convictions based on

involuntary statements. The individual autonomy and human

dignity at the heart of the right against self-incrimination

equally forbid convictions based on involuntary statements.

The constitutional prohibition is clear. The State may not

use an involuntary statement to convict. Yet the procedural

enforcement mechanism has lacked similar clarity. When must a

court hold an evidentiary voluntariness hearing? What

statements activate this duty? What specific procedures must a

court follow? We provide that clarity today.

The dissent’s complaint is more particular. The dissent

recognizes that some definitional work is unavoidable. It

maintains however that we have done more than this case

requires. It suggests we should have ruled on Tolentino’s

apology in isolation, without defining the scope of what

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constitutes an inculpatory statement. Such standards, the

dissent insists, are problems for another day.

This framing understates what this case requires.

Tolentino’s statement is not an outright confession; it’s an

ambiguous apology paired with an explanation. If “confession”

in HRS § 621-26 reached only express admissions of guilt, the

statute would not have required a pretrial hearing for

Tolentino’s apology. To rule for Tolentino, we must interpret

HRS § 621-26 and article I, sections 5 and 10 to include

inculpatory statements that fall short of full confessions.

Because that interpretation decides this case, defining the

boundaries of what counts as inculpatory is not optional. It is

the very interpretive task this case demands.

The dissent’s stakeholder argument misunderstands our role.

The HRPP Standing Committee drafts and proposes procedural

rules. It does not interpret HRS § 621-26 and article I,

sections 5, 10, or 14.

Defining an “inculpatory statement” is a matter of

constitutional and statutory interpretation, not a task for a

rules committee to propose. The work involves establishing the

rule’s reach and anchoring the analysis in our precedent. The

process also requires situating the safeguard within Hawaiʻi’s

broader constitutional tradition. Only this court possesses the

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authority to perform such interpretive work, a responsibility

fulfilled whenever a case presents the question.

Today’s opinion does that work. So have many before it.

The preference for a restricted opinion overlooks our

practice. When this court resolves a case that turns on a

procedural right, we do not stop at the facts. We articulate

operative rules clearly to guide future cases and forestall

recurring litigation.

Recent examples make the point. In Zuffante, we held that

the Hawaiʻi Constitution’s due process clause requires recording

of custodial interrogations, a procedural rule overruling State

v. Kekona, 77 Hawaiʻi 403, 886 P.2d 740 (1994). 157 Hawaiʻi at

204-06, 576 P.3d at 253-55. In State v. Kaneaiakala, we

prospectively required trial courts to evaluate the impact of

suggestive procedures on eyewitness identification reliability

and instruct juries accordingly, creating a framework that

overruled State v. Padilla in part. 145 Hawaiʻi 231, 234-236,

450 P.3d 761, 764-66 (2019).

The pattern is longstanding. In Tachibana, we established

a five-part colloquy previously unknown to our law,

prospectively binding all trial courts. 79 Hawaiʻi at 236 n.7,

236-38, 900 P.2d at 1303 n.7, 1303-05. In State v. Lewis, we

extended those requirements to include a pretrial advisement of

the right to testify. 94 Hawaiʻi 292, 297, 12 P.3d 1233, 1238

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(2000). In State v. Ketchum, we announced a bright-line rule:

custody under article I, section 10 attaches when probable cause

to arrest develops, going beyond the federal Miranda

protections. 97 Hawaiʻi 107, 126, 34 P.3d 1006, 1025 (2001). In

State v. Tetu, this court recognized a defendant’s

constitutional right to access an alleged crime scene on private

property subject to restrictions, a procedural protection

grounded in article I, sections 5 and 14. 139 Hawaiʻi 207, 210,

386 P.3d 844, 847 (2016). In Chang, we announced a prospective

rule barring consolidation of suppression hearings with bench

trials. 144 Hawaiʻi at 546, 445 P.3d at 127. And in State v.

Glenn, we prospectively required colloquies for penalresponsibility waivers. 148 Hawaiʻi 112, 124-25, 468 P.3d 126,

138-39 (2020).

Those precedents did more than adjudicate the immediate

controversy. They supplied direction where an interpretive fog

had obscured essential protections. They provided forwardlooking guidance.

None of these decisions paused for committee consensus or

public comment. The dissent’s approach would have idled every

one of them.

The dissent would demote today’s holding to dicta.

Treating it that way would undercut the court’s lawmaking

function every time a case turns on a procedural right.

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Tolentino asked whether the trial court erred by admitting

his statement without a voluntariness hearing. Answering that

question requires saying what compels the hearing, when it must

occur, and how it must be conducted. A ruling that resolves the

question presented is not dicta. It’s the holding.

The dissent tries to distinguish Tachibana, Glenn, and Tetu

on the ground that the parties in those cases raised arguments

tied to the new rules. Raising an issue is not the same as

crafting a rule. The court does the crafting.

In Tachibana, the State urged a “demand” approach for

waiver of the right to testify. 79 Hawaiʻi at 233, 900 P.2d at

1300. This court said no, and adopted a detailed colloquy

procedure — the advisements, the timing, the on-the-record

findings — that neither party had briefed. Id. at 236-37, 900

P.2d at 1303-04. The parties teed up the question. The court

built the answer.

Glenn presented this question: whether a trial court must

conduct a colloquy on the penal-responsibility defense. 148

Hawaiʻi at 123, 468 P.3d at 137. This court said yes, then

articulated what the colloquy must contain, when it must occur,

and what record must be made. Id. at 125-26, 468 P.3d at 139-40. Those details came from the court.

Tetu started as a discrete request. Defense counsel asked

for access to a private condominium where the burglary allegedly

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occurred. 139 Hawaiʻi at 210, 386 P.3d at 847. The court

fashioned rules for crime-scene access in the cases that

followed. Id. at 222-23, 386 P.3d at 859-60.

Ketchum and Chang put the pattern past doubt. In Ketchum,

the court announced a bright-line custody rule no party had

asked it to draw. 97 Hawaiʻi at 126, 34 P.3d at 1025. The rule

was meant to guide courts, the bar, and law enforcement, not to

resolve Ketchum’s case alone. Id. at 117 n.19, 34 P.3d at 1017

n.19. In Chang, both parties had agreed to consolidate the

suppression hearing with trial. 144 Hawaiʻi at 537, 445 P.3d at

118. The court nonetheless overruled forty years of precedent

permitting consolidation. Id. at 546, 445 P.3d at 127.

In none of these cases did the rule come from the briefs.

Parties raised questions, lodged arguments, drew lines around

the issues. None drafted the rules the court announced. The

dissent’s distinction misses the gap.

Crafting rules is this court’s constitutional charge.

Always has been.

Dissenters have lodged the same complaint before. Chief

Justice Recktenwald in Chang. Justice Ginoza in Zuffante. See

144 Hawaiʻi at 556, 445 P.3d at 137 (Recktenwald, C.J.,

dissenting); 157 Hawaiʻi at 213, 576 P.3d at 262 (Ginoza, J.,

dissenting). The complaint has not landed. The cases stand.

So does this court’s settled practice.

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Our case is no outlier. Tolentino asked whether the trial

court erred by admitting his statement without a voluntariness

hearing. Answering required spelling out what HRS § 621-26’s

protection looks like in operation. The rule reaches further

than these facts. Trial courts can apply it. Defendants can

invoke it. The State can rely on it. The law becomes more

predictable. And that predictability serves everyone.

The parties were not silent along the way.

At oral argument, they engaged the questions the rule

addresses. See State v. Tolentino, No. SCWC-XX-XXXXXXX,

Thursday, December 18, 2025, 10:30 a.m., Oral Argument,

https://www.courts.state.hi.us/oral-argument-before-the-supremecourt-scwc-XX-XXXXXXX [https://perma.cc/CN3D-QLEW]. They

discussed what makes a statement inculpatory - content, context,

and the prosecution’s intended use. They explored the

statements the rule covers, including direct admissions,

ambiguous statements, and false exculpatory statements offered

to show consciousness of guilt. The State broadly agreed that

statements of that kind warrant a voluntariness hearing.

The parties took up timing. The State agreed that the

voluntariness hearing should have been held before trial and

asked us to make the rule prospective. It conceded that the

mid-trial procedure used here was “problematic and should be

done differently in the future.” The concession was well-taken.

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HRS § 621-26 requires an evidentiary hearing before trial. The

ruling here was not evidentiary, and it was not before trial.

The parties did not brief every nuance. But they worked

through the core questions. The State’s positions confirmed

what the law requires.

The dissent invokes Hawaiʻi Rules of Appellate Procedure

(HRAP) Rule 28(b)(4). The rule does not apply.

Rule 28(b)(4) addresses a single situation: when this

court “contemplates basing the disposition of the case wholly or

in part upon an issue of plain error not raised by the parties.”

HRAP Rule 28(b)(4) (emphases added).

Three words do the work: disposition, issue, and error.

The rule applies only when appellate courts “affirm,

reverse, or vacate” on an issue of error no party raised. Id.

Plain error doctrine lets an appellate court correct an unjust

outcome the parties failed to flag. The rule does not strip

appellate courts of their authority and responsibility to

articulate the operative rules governing issues raised that

decisions demand.

This opinion corrects the error Tolentino raised. The

disposition rests on the issue Tolentino presented — whether the

trial court erred by admitting his statement without a

voluntariness hearing. Articulating the applicable legal

framework governing that issue is not the basis of that

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disposition. It is the answer to the issue Tolentino put before

this court. The rules govern how the disposition works, not how

an error gets corrected.

The dissent reaches past Rule 28(b)(4)’s text to the

legislative history of a bill that never became law. The rule

itself is narrower by design. See Order Amending Rule 28(b)(4)

of the Hawaiʻi Rules of Appellate Procedure, SCRU-XX-XXXXXXX

(Aug. 30, 2021). The failed bill would have policed every

doctrinal step and nuance the parties did not lay out

themselves. It would have intruded on this court’s exclusive

rulemaking power. See Haw. Const. art. VI, § 7. The dissent

reads into Rule 28 what it was written not to say.

Worries about overburdening the courts also miss the mark.

The rule attaches only when the State fulfills its Rule 16

disclosure duties for statements qualifying as inculpatory under

this opinion’s definition. Surprise statements surfacing at

trial remain governed by Green, a rule requiring a determination

outside the jury’s presence that has functioned for over half a

century. We do not invent new burdens. We simply clarify the

standards trial courts must follow when the prosecution relies

on a defendant’s own words to prove the case.

Tolentino’s case demands the same systemic clarity. The

ICA’s decision confirms that the reach of HRS § 621-26 and

article I, sections 5, 10, and 14 remains imperfectly

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understood. By reading the law to require a mere voluntariness

determination rather than an evidentiary hearing, the ICA

narrowed the procedural safeguard beyond what the text and our

precedent allow.

Restraint without clarity is not restraint. It is work

pushed onto the next case. Resolving the appeal without setting

the rule’s contours and procedure would leave trial courts

guessing. The same litigation would return under different

facts, case after case. Judicial economy demands the opposite.

Saying what the law requires is not dicta when it answers the

question a case raises and forecloses the next round of needless

appeals. See Schwartz v. State, 136 Hawaiʻi 258, 280, 361 P.3d

1161, 1183 (2015) (dicta is what is “not directly upon the

question before the court”).

VI.

We vacate the ICA’s Judgment on Appeal and the Circuit

Court of the First Circuit’s Judgment of Conviction and

Sentence, and remand to the circuit court.

Kai Lawrence /s/ Sabrina S. McKenna for petitioner

/s/ Todd W. Eddins

Brian R. Vincent

for respondent /s/ Rebecca A. Copeland

State v. Tolentino

Authorities cited

Opinion · public domain