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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
24-AUG-2026
11:02 AM
Dkt. 27 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
MARIANO GARCES, JR.,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2CPC-XX-XXXXXXX)
August 24, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ.,
AND CIRCUIT JUDGE KAWAMURA, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, J.
I. Introduction & Summary
This is an appeal of a conviction for the murder of the
defendant’s girlfriend. The defendant asserts that his
statements should have been suppressed due to a violation of his
Miranda rights.
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Specifically, Mariano Garces Jr. (“Garces”) challenges the
admissibility of statements made during custodial interrogation
on the grounds the advisements provided to him pursuant to the
Maui Police Department’s (“MPD”) Miranda waiver form (“MPD Form
103”) were constitutionally insufficient. Garces asserts that
his statements should have been suppressed because the MPD
failed to provide a fifth advisement, that he had the right to
terminate police questioning at any time (“the fifth Miranda
right”).
In Miranda v. Arizona, 384 U.S. 436 (1966), the United
States Supreme Court set out four warnings that police officers
must provide to custodial suspects before interrogation may
begin, namely, that (1) a suspect has the right to remain
silent; (2) anything they say can and may be used against them
in a court of law; (3) they have the right to the presence of an
attorney; and (4) they have the right, if they cannot afford the
services of an attorney, to have one appointed for them, free of
charge. 384 U.S. at 479.
This court has held that these four Miranda rights have an
independent source in the Hawaiʻi Constitution’s privilege
against self-incrimination. State v. Santiago, 53 Haw. 254,
266, 492 P.2d 657, 664 (1971).
But in Miranda, the Court also indicated that the four
warnings imply a fifth right: to cease questioning at any time.
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See 384 U.S. at 474 (“Without the right to cut off questioning,
the setting of in-custody interrogation operates on the
individual to overcome free choice in producing a statement
after the privilege has been once invoked.”). And although
federal and state courts have recognized that the fifth Miranda
right is implied in the existing four Miranda warnings, no court
has required that the fifth warning also be given. But many
police departments, including the Honolulu Police Department
(“HPD”) and, more recently, the MPD, already advise suspects of
their right to cease questioning at any time, demonstrating a
clear and growing consensus that suspects should be informed of
the fifth Miranda right.
Yet, in the sixty years since Miranda was decided, the
Court has retreated from constitutional protections it once
provided regarding custodial interrogations. Consistent with
the modern Court’s retrenchment from previously recognized
constitutional rights, see Granillo v. State, No. SCWC-22-0000740, 2026 WL 2085397, at *27-30 (Haw. July 15, 2026), in
2022, the Court held that receiving Miranda advisements was
never even a constitutional right under the Fifth Amendment
right against self-incrimination. See Vega v. Tekoh, 597 U.S.
134, 141-42 (2022). So a confession obtained in violation of
Miranda is not enforceable through a lawsuit for damages
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pursuant to 42 U.S.C. § 1983 as a violation of a federal
constitutional right. Id.
But the people of Hawaiʻi are also protected by the Hawaiʻi
Constitution. “We interpret the Hawaiʻi Constitution on its own
terms.” Granillo, 2026 WL 2085397, at *26. The United States
Supreme Court’s interpretation of the federal right against
self-incrimination does not limit protections that can and
should be provided by the Hawaiʻi Constitution’s right against
self-incrimination.
We therefore now hold that the Hawaiʻi Constitution’s
Article I, Section 10 privilege against self-incrimination
requires that law enforcement provide the fifth Miranda warning.
In addition to the traditional four Miranda advisements, law
enforcement must expressly inform custodial suspects that they
may cease answering questions at any time. And they must also
inform suspects that they have a right to request an attorney at
any time after questioning has begun.
We recognize that this is a new constitutional rule not
previously required by our precedent. In State v. Wallace, 105
Hawai‘i 131, 142-43, 94 P.3d 1275, 1286-87 (2004), this court
held that a defendant knowingly, intelligently, and voluntarily
waived his Miranda rights based on the previous MPD Form 103,
which did not contain the fifth Miranda warning. Also, other
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opinions of this court have only required the traditional four
Miranda warnings.
But our Constitution’s right against self-incrimination
requires that an inculpatory statement flow from the defendant’s
free and voluntary choice. State v. Tolentino, 158 Hawai‘i 321,
335, 592 P.3d 209, 223 (2026). Individual autonomy and human
dignity lie at the heart of that right. 158 Hawai‘i at 344, 592
P.3d at 232. The exclusionary rule for a Hawaiʻi Miranda
violation is one such safeguard protecting those interests.
Yet, as this is a new rule, our holding today will have purely
prospective effect. And in order to provide Hawaiʻi law
enforcement organizations time to amend their forms and
appropriately instruct their officers, this new rule will not
take effect until sixty days from the date of this opinion, or
on October 23, 2026.
Therefore, the new rule does not apply to Garces’s
interrogation. And reviewing the totality of the circumstances
surrounding his custodial interrogation, we hold that Garces
knowingly, intelligently, and voluntarily waived his thenexisting Miranda rights, despite his mental distress.
Therefore, we affirm the Circuit Court of the Second Circuit
(“circuit court”)’s September 26, 2024 judgment of conviction
and sentence, as well as the Intermediate Court of Appeals
(“ICA”)’s November 26, 2025 judgment on appeal.
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II. Background
A. Factual background
As of November 19, 2022, Garces and Amie Kaholoa‘a
(“Kaholoaʻa”) had been in a relationship for a little over a
year. A week before her death, Kaholoa‘a had moved back in with
Garces.
On that day, Garces and Kaholoa‘a were about to take a
shower together when they began arguing in the bathroom. Garces
became enraged and began hitting Kaholoaʻa with a twenty-inchlong vacuum metal extension pipe. He hit her for more than
fifteen minutes, bruising her liver and causing deep bleeding in
the area between her brain and skull. He also punched her face
and head with his fist. He then suffocated her by pressing a
shirt onto her mouth, fracturing her vertebrae and distorting
her face. He only stopped when he realized she was no longer
breathing.
Hours later, Garces called 911 to say “I think I went kill
[Kaholoa‘a]” and “I going up to the mountain to kill my — I going
up the mountain now. I going kill myself now.” The police
arrived at Garces’s home, responding to what they believed was a
possible suicide in progress and found Kaholoa‘a’s body.
After a night in the mountains, Garces returned to his
house and was detained. He told the arresting officer, among
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other things, that “I gonna a run away. I gonna run away, brah.
Shoot me, brah. Shoot me, brah. Shoot me.” Despite asking
repeatedly to be shot, he did not attempt to flee or otherwise
take any further action.
At around 7:00 AM, the police took Garces to the police
station, where he waited for almost four hours before Detectives
Kyle Bishaw-Juario (“the Detective”) and Taylor Kamakawiwo‘ole
began their custodial interrogation at 10:47 AM. While being
processed at the police station, Garces asked to speak to the
police.
The Detective reviewed MPD Form 103 with Garces before
beginning the custodial interrogation. MPD Form 103 did not
include an advisement that Garces could cease questioning and
ask for an attorney at any time.
During the custodial interrogation, Garces confessed to
murdering Kaholoa‘a and described how it happened. Throughout
the interrogation, Garces answered all of the detectives’
questions and never requested an attorney, expressed suicidal
statements, or showed any inclination that he wanted the
interview to stop.
B. Court proceedings
1. Circuit court
On November 25, 2022, Garces was indicted for second degree
murder in violation of Hawaiʻi Revised Statutes (“HRS”) §§ 707-7
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701.5 (Supp. 2019) and 706-656 (2014).1 The criminal proceedings
were initially delayed to determine Garces’s fitness and penal
responsibility. After determining Garces was fit to proceed,
the circuit court resumed the proceedings.
Garces then filed a motion requesting a voluntariness
hearing (tantamount to a motion to suppress) on any of his
statements that the State intended to use at trial. The circuit
court held the hearing on June 13, 2024.
The State called the Detective as their only witness. He
testified that he advised Garces of his Miranda rights and that
Garces freely and voluntarily gave his statement without the use
of any threats, force, or other coercion.
Garces established through the Detective that MPD Form 103,
unlike the current MPD Form 103A, did not state “that if he
decides to answer questions without a lawyer present that he
still has the right to stop answering questions at any time[.]”
Garces also argued that because his 911 call and later
statements to the arresting officer indicated suicidal ideation
and severe mental distress, his statements at the scene and
during custodial interrogation were involuntary and should be
suppressed.
1
Pursuant to HRS § 707-701.5, “a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person[.]” “[P]ersons convicted of second degree murder and attempted second degree murder shall be sentenced to life imprisonment with possibility of parole.” HRS § 706-656.
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But the circuit court found credible the Detective’s
testimony that Garces (1) requested to speak to the police; (2)
was calm, coherent, cooperative, and understood English; (3) did
not appear to be under the influence of substances; and (4)
acknowledged and waived his Miranda rights.
On June 18, 2024, the circuit court filed its findings of
fact, conclusions of law, and order denying suppression of
Garces’s statements.
At trial, along with other evidence, the State introduced
the 911 call and Garces’s statements made both at the crime
scene and during the custodial interrogation.
The jury found Garces guilty of second-degree murder. The
circuit court sentenced Garces to life imprisonment with the
possibility of parole.
2. Appellate proceedings
On appeal to the ICA, Garces argued that (1) the totality
of the circumstances demonstrated that he did not knowingly,
intelligently, and voluntarily waive his Miranda rights before
making his statements to the police; and (2) the Miranda waiver
was constitutionally deficient, because the detectives did not
explicitly advise him that he could stop answering questions at
any time or that he did not have to answer questions at all.
Garces maintained that he was unable to effectively waive
his Miranda rights because he was in a severely distressed
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mental state before and during the police interrogation. He
also argued that the interrogation was coercive because he was
held in police custody for four hours while severely mentally
distressed.
Garces also contended that the Miranda waiver was
constitutionally deficient. He pointed out that the HPD has for
many years advised suspects of their right to terminate
questioning at any time and stop answering questions and that
the MPD had changed its form after his questioning to also
include that advisement. He argued that the fifth Miranda
warning was necessary for him to make an informed decision as to
whether continuing with the custodial interrogation was in his
immediate and/or long-term interest. Garces argued that his
conviction should therefore be vacated and that he should get a
new trial.
The ICA affirmed the conviction, holding the State properly
demonstrated that Garces’s statements were voluntary and that
his Miranda waiver was valid. State v. Garces, No. CAAP-24-0000706, 2025 WL 3002926, at *3 (Haw. App. Oct. 27, 2025) (SDO).
The ICA held that despite Garces’s alleged suicidal ideation,
there was no evidence in the record that his statements were
made under conditions that would overbear his will and render
his statements involuntary. Id. at *2. The ICA also held that
the MPD’s Miranda waiver was constitutionally sufficient and
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satisfied the minimal safeguards required, despite the lack of
the fifth Miranda warning. Id. at *3.
On certiorari to this court, Garces raises the same
arguments.
III. Standards of Review
A. Miranda rights
In discussing the constitutional protections afforded under
Miranda, we recently stated:
[T]he protections which the United States Supreme Court
enumerated in Miranda have an independent source in the
Hawai‘i Constitution’s privilege against self-incrimination.
In determining the admissibility of custodial statements,
the prosecutor must show that each accused was warned that
he had a right to remain silent, that anything said could
be used against him, that he had a right to the presence of
an attorney, and that if he could not afford an attorney
one would be appointed for him. If these minimal
safeguards are not satisfied, then statements made by the
accused may not be used either as direct evidence or to
impeach the defendant’s credibility.
Assuming, however, that the minimal safeguards are
observed, the accused may waive the right to counsel,
provided that such waiver is voluntarily and intelligently
undertaken. Moreover, once warned of his Miranda
protections, the suspect is free to exercise his own
volition in deciding whether or not to make a statement to
the authorities.
In determining whether a valid waiver of the right to
counsel and the right to silence occurred, we review
whether the purported waiver was knowing and
intelligent and found to be so under the totality of
the circumstances.
An explicit statement of waiver is not invariably necessary
to support a finding that the defendant waived the right to
remain silent or the right to counsel guaranteed by the
Miranda case.
State v. Spies, 157 Hawai‘i 75, 86-87, 575 P.3d 708, 719-20
(2025) (cleaned up).
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B. Voluntariness of waiver
We have applied a “clearly erroneous” standard of
review to the findings of fact made by the court in
connection with a voluntariness hearing to determine
whether to admit a confession into evidence at trial. This
is based on the rationale that whether the defendant
invoked his right to counsel and whether he waived the
right are primarily questions of fact.
This court has also recognized that in a technical
sense, waiver is a question that requires application of
constitutional principles to the facts as found.
Accomplishing this task requires us to examine the entire
record and make an independent determination of the
ultimate issue of voluntariness based upon that review and
the totality of circumstances surrounding the defendant’s
statement. Thus, we apply a de novo standard of appellate
review to the ultimate issue of the voluntariness of a
confession.
State v. Baker, 147 Hawai‘i 413, 422, 465 P.3d 860, 869 (2020)
(cleaned up).
IV. Discussion
A. We adopt a new constitutional rule requiring the fifth
Miranda warning
1. The fifth Miranda right
In 1966, Chief Justice Warren’s watershed opinion in
Miranda sought to safeguard the Fifth Amendment right against
self-incrimination during custodial interrogation.
The four consolidated cases the Court considered in Miranda
“share[d] salient features,” such as “incommunicado
interrogation of individuals in a police-dominated atmosphere,
resulting in self-incriminating statements without full warnings
of constitutional rights.” 384 U.S. at 445. Before Miranda,
the police commonly “resorted to physical brutality — beatings,
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hanging, whipping — and to sustained and protracted questioning
incommunicado in order to extort confessions.” 384 U.S. at 446.
The Miranda court held that “[u]nless a proper limitation upon
custodial interrogation is achieved[,]” “there can be no
assurance that practices of this nature will be eradicated in
the foreseeable future.” 384 U.S. at 447.
The Court therefore adopted the four Miranda warnings wellrecognized today to safeguard this constitutional right. 384
U.S. at 479. But Miranda also implied the existence of a fifth
right: to cease answering questions. In discussing the right
against self-incrimination, the Court said that “[w]ithout the
right to cut off questioning, the setting of in-custody
interrogation operates on the individual to overcome free choice
in producing a statement after the privilege has been once
invoked.” 384 U.S. at 474.
The fifth Miranda right “encompasses four possible
trajectories: (1) reasserting a waiver, (2) reasserting an
invocation, (3) switching from waiver to invocation, and (4)
switching from invocation to waiver.” Suraiya Shammi, The
Forgotten Fifth Prong: A Critical Review of Dynamic Miranda
Decision-Making during Interrogation, 41 J. of Police & Crim.
Psych. 255, 256 (2026) (citation omitted). It assures custodial
suspects that their right to remain silent and to counsel is a
continuing constitutional privilege. But the fifth Miranda
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right has long been interpreted to be embedded within the four
Miranda warnings and not requiring its own separate advisement.
Federal courts have opined that a fifth Miranda right
exists but have been reluctant to adopt a fifth Miranda warning
requirement on constitutional grounds.2 State courts have
similarly not required a fifth Miranda warning even under their
respective state constitutions.3
Although other courts, including the United States Supreme
Court, have indicated that the right to cease questioning at any
2 See, e.g., Engle v. Lumpkin, 33 F.4th 783, 793 n.24 (5th Cir. 2022) (concluding that “[w]hile we have never expressly recognized that Miranda does not require the authorities to warn suspects of the right to cut off questioning, Miranda itself arguably makes this clear . . . and other courts have uniformly (and, in our view, rightly) read Miranda as requiring no such warning.”); United States v. Crumpton, 824 F.3d 593, 611 (6th Cir. 2016) (“Subsequent Supreme Court decisions have echoed these four — and only four — required warnings . . . . We and the other circuits have made clear that ‘a defendant need not be informed of a right to stop questioning after it has begun.’”); United States v. Lares-Valdez, 939 F.2d 688, 690 (9th Cir. 1991) (“The Court thus contemplated the right to cease questioning and declined to include it among the warnings it deemed necessary to effect an accused’s fifth and sixth amendment rights.”).
3 See, e.g, Com. v. Silanskas, 746 N.E.2d 445, 457 n.11 (Mass. 2001) (“We do not require that the defendant be informed of his right to terminate questioning, a so-called ‘fifth’ Miranda warning.”); State v. Mitchell, 482 N.W.2d 364, 371 (Wisc. 1992) (holding Miranda does not mandate that a defendant be warned of the right to cease questioning); State v. Nicholas S., 444 A.2d 373, 378 (Me. 1982) (“There may be no express requirement that the police, prior to the commencement of interrogation, give the ‘fifth’ Miranda warning, that is, inform the accused of his right to terminate questioning at any time.”); Gray v. State, 441 A.2d 209, 217 (Del. 1981) (holding “that the required Miranda warnings do not include express advice to the accused that he has the right to discontinue his statement if he chooses to do so.”); State v. McGhee, 280 N.W.2d 436, 441 (Iowa 1979) (“We did not list the right to have interrogation cease as a required warning, nor do we find any indication in our case law to mandate such an inclusion.”); State v. Cobbs, 324 A.2d 234, 244 (Conn. 1973) (ruling “a statement taken under circumstances which show that the required Miranda warnings were given may not be held inadmissible simply because the accused was not told that he could stop answering questions at any time.”).
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time is implicit in the right to remain silent, they also have
praised police departments that inform suspects of such a right.
See Berghuis v. Thompkins, 560 U.S. 370, 385-86, 388 (2010)
(“When the suspect knows that Miranda rights can be invoked at
any time, [they have] the opportunity to reassess [their] longterm interests.”); United States v. DiGiacomo, 579 F.2d 1211,
1214 (10th Cir. 1978) (“Although there may be no express
requirement to warn suspects of the right to terminate
questioning, the government’s failure to so warn is certainly an
important factor to be considered in determining the
voluntariness of any statements made.”).
But the lack of a constitutionally-required fifth Miranda
warning has led police departments to unevenly inform custodial
suspects of their constitutional rights.4 For example, the HPD
included the fifth Miranda warning since at least 1969, but the
MPD only recently followed suit. See State v. Maluia, 56 Haw.
428, 431 n.5, 539 P.2d 1200, 1205 n.5 (1975). The record does
not indicate whether custodial suspects in Kauaʻi and Hawaiʻi
counties are advised of this right. Therefore, Miranda rights
4 See Richard Rogers, et al., The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis, 32 L. Hum. Behav. 124, 131 (2008) (“In 35 states (70%), [the fifth Miranda warning] was unquestionably the norm; its inclusion averaged 94.8% [with a range of 80-100%]. In stark contrast, six mostly western states [Arizona, California, North Carolina, Nevada, Oregon, and South Dakota] included the fifth prong less than 50% of the time. Of these, California was an obvious outlier with virtually no use (3.0%) of the fifth prong.”).
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for custodial suspects are not uniform throughout our counties.
Such uneven justice cannot continue.
2. The Hawaiʻi Constitution requires the fifth Miranda
warning
The Fifth Amendment of the United States Constitution
states, in relevant part, that no person “shall be compelled in
any criminal case to be a witness against himself[.]” Yet, in
the decades after Miranda, the Court has steadily narrowed its
protection of this right. See, e.g., Harris v. New York, 401
U.S. 222 (1971) (ruling confessions obtained in violation of
Miranda could be used to impeach subjects); New York v. Quarles,
467 U.S. 649 (1984) (ruling there was a “public safety”
exception to the Miranda warning requirement); Berghuis, 560
U.S. 370 (ruling that a suspect must explicitly invoke their
right to remain silent; confessing, even after a prolonged
silence, was a valid waiver). As noted, most recently, the
Court ruled that Miranda warnings were not constitutional rights
but judicially crafted rules. Vega, 597 U.S. at 144.
But in deciding whether to require the fifth Miranda
warning, we look to the state constitution first. “Only if the
Hawai‘i Constitution does not reach the minimum protection
provided by a parallel federal constitutional right should this
court construe the federal analogue.” State v. Wilson, 154
Hawai‘i 8, 13, 543 P.3d 440, 445 (2024). And “[w]e have not
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hesitated to extend the protections of the Hawai[‘]i Bill of
Rights beyond those of textually parallel provisions in the
Federal Bill of Rights when logic and sound regard for the
purposes of those protections have so warranted.” State v.
Miyasaki, 62 Haw. 269, 280, 614 P.2d 915, 922 (1980) (cleaned
up).
Article I, Section 10 of the Hawai‘i Constitution provides
that “[n]o person shall . . . be compelled in any criminal case
to be a witness against oneself.” This right is a reflection of
the Preamble of our Constitution, in which “[w]e reserve the
right to control our destiny, to nurture the integrity of our
people and culture, and to preserve the quality of life that we
desire” and “reaffirm our belief in a government of the people,
by the people and for the people, and with an understanding and
compassionate heart towards all the peoples of the earth[.]”
Haw. Const. pmbl. We have held that individual autonomy and
human dignity underlie the right against self-incrimination.
Tolentino, 158 Hawai‘i at 344, 592 P.3d at 232. Safeguards
enforcing that right protects those interests. Miranda’s
exclusionary rule does that work in Hawai‘i.
In addition, in Hawai‘i, the Aloha Spirit inspires
constitutional interpretation. “When this court exercises power
on behalf of the people and in fulfillment of our
responsibilities, obligations, and service to the people we may
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contemplate and reside with the life force and give
consideration to the Aloha Spirit.” Wilson, 154 Hawai‘i at 27,
543 P.3d at 459 (cleaned up); see also Tolentino, 158 Hawai‘i at
339, 592 P.3d at 227 (“Honoring our constitution means giving it
a reading shaped by Hawai‘i and the people who adopted it — not
through federal precedent about a different document.”).
Our Constitution therefore requires robust protection of
the dignity and rights of our people, including the right
against self-incrimination for those subjected to custodial
interrogation. In Hawai‘i, this right has long been an integral
part of our jurisprudence. See, e.g., The King v. Paakaula, 3
Haw. 30, 38 (Haw. Kingdom 1867) (“It is said to be improper to
dissuade a prisoner from making a confession if he really wishes
to do so, . . . equally improper would it be to persuade him to
make one.”); Republic of Hawaii v. Parsons, 10 Haw. 601, 605
(Haw. Terr. 1896) (discussing a person’s privilege of refusing
to give testimony that would tend to incriminate her).
Our jurisprudence reflects these principles. From the
outset, this court has not only recognized “that the protections
which the United States Supreme Court enumerated in Miranda have
an independent source in the Hawai[ʻ]i Constitution’s privilege
against self-incrimination[,]” but has also afforded greater
protections than the federal constitution. Santiago, 53 Haw. at
265-66, 492 P.2d at 664.
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In fact, this court in Santiago deviated from the United
States Supreme Court’s decision in Harris, 401 U.S. 222, by
ruling that the Hawai‘i Constitution does not permit statements
obtained in violation of Miranda to be used to impeach a
defendant who takes the stand. 53 Haw. at 266-67, 492 P.2d at
664-65. This court emphasized that “the privilege against selfincrimination bestows on every accused the right to choose
whether or not to confess to the commission of a crime. In
order to protect that freedom of choice, we believe that every
accused, must be informed of the fact that he has certain rights
under the Hawai[ʻ]i Constitution.” 53 Haw. at 266, 492 P.2d at
664.
In so ruling, we affirmed that “this court is the final
arbiter of the meaning of the provisions of the Hawai[‘]i
Constitution. Nothing prevents our constitutional drafters from
fashioning greater protections for criminal defendants than
those given by the United States Constitution.” 53 Haw. at 265,
492 P.2d at 664 (citation omitted).
We have continued to reaffirm Santiago’s ruling that the
Hawai‘i Constitution is only guided by rights set out in Miranda
and provides greater protections than the United States
Constitution. See State v. Russo, 67 Haw. 126, 133, 681 P.2d
553, 559 (1984) (“We reasoned that the rights fashioned by our
constitutional drafters were not necessarily circumscribed by
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the dictates of federal law . . . Consequently, when claims of
Miranda violations are advanced, we are constrained to seek
primary guidance from precepts enunciated in the seminal
decision . . . and our own cases[.]”).
Although the United States Supreme Court has increasingly
cabined Miranda, we have continued to articulate the right
against self-incrimination under the Hawai‘i Constitution. See,
e.g., Miyasaki, 62 Haw. at 282, 614 P.2d at 923 (holding
“transactional immunity” was part of the Hawai‘i Constitution’s
right against self-incrimination notwithstanding contrary
decisions under the United States Constitution); State v. Bowe,
77 Hawai‘i 51, 57, 881 P.2d 538, 544 (1994) (declining to adopt
the United States Supreme Court’s decision in Colorado v.
Connelly, 479 U.S. 157 (1986), and ruling that the coercive
conduct of a private person may be sufficient to render a
defendant’s confession involuntary); State v. Hewitt, 153 Hawaiʻi
33, 44, 526 P.3d 558, 569 (2023) (reinstating case law requiring
Miranda warnings when probable cause to arrest has developed).
And, most recently, we adopted a new constitutional rule in
State v. Zuffante, 157 Hawai‘i 194, 198, 576 P.3d 243, 247
(2025), requiring law enforcement officers to record all instation custodial interrogations. Both Miranda and Zuffante
address concerns about the inherent coercive power of custodial
interrogations by police. Zuffante, 157 Hawai‘i at 202-04, 576
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P.3d at 251-53. In fact, recording custodial interrogations has
been advocated by some legal scholars as a way to enhance
Miranda’s underlying purpose. See, e.g., Saul M. Kassin, et
al., Police-Induced Confessions, 2.0: Risk Factors and
Recommendations, 49 L. Hum. Behav. 7, 32-33 (2025).
We therefore now hold that all Miranda rights, including
the fifth right originally implied in the Miranda opinion, must
be explained so that custodial suspects can fully understand
their constitutional rights when facing custodial interrogation.
Without the separate fifth Miranda warning, it is possible that
many custodial suspects may not fully understand and apply their
rights at all stages of interrogation; they may not know that
they have a right to stop answering questions at any time. See
Saul M. Kassin, et al., Police Interviewing and Interrogation: A
Self-Report Survey of Police Practices and Beliefs, 31 L. Hum.
Behav. 381, 389 (2007) (law officers estimate only 13% of
suspects who initially waived their rights later change their
mind and invoke them).
Therefore, consistent with the principles underlying
Miranda and the greater protections we provide under the Hawaiʻi
Constitution, we hold that custodial suspects must explicitly be
informed that their right against self-incrimination is
continuous and can be reinvoked even if initially waived and
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that they can request an attorney even after that right was
initially waived.
3. Our new rule has purely prospective effect
But we recognize that we announce a new constitutional rule
in this case. In Wallace, this court held that the defendant
“knowingly, intelligently, and voluntarily waived the privilege
against self-incrimination and the right to counsel” based on
MPD Form 103 without the fifth Miranda warning. 105 Hawai‘i at
142-43, 94 P.3d at 1286-87. Other opinions have also only
required the four traditional Miranda warnings. See Spies, 157
Hawai‘i at 86-87, 575 P.3d at 719-20.
When we announce a new rule, we consider whether it should
have retroactive effect or whether it should be given
prospective effect only. We decide whether the new rule will
have:
(1) purely prospective effect, which means that the rule is
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, under which 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; or (3) full retroactive effect, under
which the rule applies both to the parties before the court
and to all others by and against whom claims may be
pressed.
State v. Jess, 117 Hawai‘i 381, 401, 184 P.3d 133, 153 (2008)
(cleaned up). The “paradigm case” warranting a prospective-only
application of a new rule arises “when a court expressly
overrules a precedent upon which the contest would otherwise be
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decided differently and by which the parties may previously have
regulated their conduct.” 117 Hawai‘i at 400, 184 P.3d at 152
(citation omitted).
Here, we are overruling “precedent upon which the contest
would otherwise be decided differently, which counsels in favor
of a prospective-only application.” State v. Auld, 136 Hawai‘i
244, 256, 361 P.3d 471, 483 (2015) (cleaned up). And although
the HPD incorporated the fifth Miranda warning decades ago and
the MPD recently followed suit, law enforcement departments in
Hawaiʻi have not previously been constitutionally required to
provide such a warning. It is unclear whether other departments
have been giving the fifth Miranda warning. Therefore, before
this, the “parties may previously have regulated their conduct”
consistent with the rules set forth in Wallace and other cases
that did not require the fifth Miranda warning. Jess, 117
Hawai‘i at 400, 184 P.3d at 152 (citation omitted).
Hence, we hold that the new constitutional rule requiring a
fifth Miranda warning has purely prospective effect. And in
order to give time to law enforcement to update their forms and
provide appropriate instruction to officers, the new rule will
take effect sixty days from the date of this opinion, or on
October 23, 2026.
Furthermore, we decline to lay down a specific formula or
wording for the fifth Miranda warning. See California v.
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Prysock, 453 U.S. 355, 359-60 (1981) (per curiam) (holding that
no talismanic incantation or verbatim recital is required to
satisfy Miranda). The fifth Miranda warning given must
substantively and adequately inform custodial suspects of their
right to cease answering questions and ask for an attorney at
any time. Under our case law, the crucial test is whether the
words in the context used, considering the age, background and
intelligence of the individual being interrogated, impart a
clear, understandable warning of all of their rights. Maluia,
56 Haw. at 432, 539 P.2d at 1205.
B. Here, under the totality of the circumstances, Garces
voluntarily waived his Miranda rights
As our new rule is prospective, we evaluate Garces’s
Miranda waiver under our currently existing law. We hold that
as Garces was informed of his four rights under Miranda and he
voluntarily, intelligently, and knowingly waived them, his
Miranda waiver was not invalid. Garces also argues he did not
voluntarily waive his Miranda rights under the totality of the
circumstances because of his suicidal ideation and severely
distressed mental state. After reviewing the record, we uphold
the circuit court’s conclusion that the custodial statements
were voluntary.
As a general rule, “[o]ur law requires us to examine the
entire record and make an independent determination of the
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voluntariness of [defendant’s] custodial statement to the
police.” Baker, 147 Hawai‘i at 424, 465 P.3d at 871 (citation
omitted). We apply a de novo standard of appellate review to
the ultimate issue of the voluntariness of a confession. 147
Hawai‘i at 422, 465 P.3d at 869 (citation omitted).
“A defendant’s mental and physical condition can be part of
the ‘totality of the circumstances’ relevant to the issue of
voluntariness of his or her custodial statements.” State v.
Kelekolio, 74 Haw. 479, 503, 849 P.2d 58, 69 (1993) (citation
omitted). However, we have ruled that mental instability does
not, by itself, render a confession involuntary, holding “in the
absence of insanity or mental depletion, neither the voluntary
character nor the admissibility of a confession is affected by
the mental instability of the person making it.” 74 Haw. at
503, 849 P.2d at 70 (citation omitted).
Our ruling in State v. Edwards, 96 Hawai‘i 224, 30 P.3d 238,
(2001), is instructive. There, this court ruled that the
defendant’s emotional state, being “so fragile as to warrant
suicide watch,” was insufficient to hold her statements
involuntary. 96 Hawai‘i at 243, 30 P.3d at 257. In addition to
being emotionally fragile, the defendant was also incarcerated
for nearly eighteen hours and broke down in tears more than once
during the interrogation. Id. This court held that the
defendant’s fragile state was insufficient to prove that “such
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circumstances specifically affected the voluntariness of her
statements.” Id. Therefore, this court concluded that the
totality of circumstances demonstrated that the defendant’s
statements were voluntary. Id.
Here, the circuit court did not err in finding that
Garces’s custodial statements were voluntary despite his mental
state. Garces requested to speak with the detectives. There is
also no evidence to suggest that the three to four hours between
arriving at the police station and being interrogated overcame
his will. Both before and during the custodial interrogation,
his demeanor was clear and coherent. He did not appear under
the influence of any substances. Moreover, the detectives did
not use any threats, coercion, force, or promises to get him to
make the statement.
We do hold that the circuit court clearly erred in its
conclusion of law that “Defendant’s statements of a suicidal
nature, absent evidence of action upon those statements, were
not credible.” Suicidal ideation does not require action.
Regardless, this error was harmless. Although it appears
Garces was suicidal, being suicidal in and of itself does not
mean that a person cannot knowingly, voluntarily, and
intelligently waive Miranda rights. Examining the totality of
the circumstances, the circuit court did not err in determining
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that Garces knowingly, intelligently, and voluntarily waived his
rights.
V. Conclusion
For these reasons, we affirm the circuit court’s September
26, 2024 judgment of conviction and sentence as well as the
ICA’s November 26, 2025 judgment on appeal. This opinion’s new
rule requiring a fifth Miranda warning becomes effective sixty
days after the issuance of this opinion.
Brandon M. Segal, /s/ Vladimir P. Devens
for petitioner
/s/ Sabrina S. McKenna
Gerald K. Enriques,
for respondent /s/ Todd W. Eddins
/s/ Lisa M. Ginoza
/s/ Shirley M. Kawamura
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