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Hawaii Constitutional Studies 1978

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Hawaii Constitutional Studies 1978 HAWAII CONSTITUTIONAL CONVENTION STUDIES 1978 Article I: Bill of Rights Hilary Josephs Curtis Narimatsu Roderick Rodrigues Kevin P. H. Sumida Assisted by Alice Beechert Legislative Reference Bureau State Capitol Honolulu, Hawaii 96813 Price $3.00 Richard F. Kahie, fr. Samuel B. K. Chang May 1978 Eifrtor 1)rri~iior TABLE QF CONTENTS ARTICLE I. BILL OF RIGHTS ............... vi 1. THE BILL OF RIGHTS IS THE STATE AN3 FEDERAL CONST!T"TIOXS .................... 1 The Significance of the Federal Bill of Rights for Hawaii Application of the Federal Bil! of Rights to the States .............. 1 The Derivation of the Hawaii BiU of Rights from the Federal Bill of Rights ............ 3 2 . BASIC PRINCIPLES : POPULATION SOVEREIGNTY. INDIVIDUAL EQUALITY. AND SUPREMACY OF THE CIVIL POWER ..*..a 4 Popular Sooereigxty .............. 4 Individual Equality ................ 5 Supremacy of the Civil Power ........... 6 3 . FIRST AMEXDMENT FREEDOMS .............. 8 Part I . Introduction ................ 8 Part I: . Freedom of Religion ............ 9 Separation of Church and State ....... 9 Free Exercise of Relig: on ............. 11 Part 111 . Speech. Press. Assembly. and Petition ... 12 Introduction .................. 12 Freedom of the Press and Individual Reputation .... 13 Freedom of the Press and Individual Privacy ..... 15 The Public "Right to Know" and Individual Privacy . 16 Freedom of the Press and the Administration of Criminal Justice ................ 17 Free Expression and Increased Opportunities for Political Dialogue ............... 19 The First Amendment and Nonpolitical Forms of Expression ............... 20 First Amendment Protection of Pjonverbal Forms of Communication .............. 21 The First Amendment and Individual Autonomy .... 22 Part IV . Possible Approaches to First Amendment Issues ...................... 26 4 . DUE PROCESS . EQlJAL PROTECTION. AND FREEDOM FROM DISCRlMINATIOE .................... Due Process ................ Equal Protection and Freedom from Discrimination ... Sex as a Quasi-Suspect Classification ........ Arguments For and Against ERA .......... The Impact of the State ERA on Hawaii Law ..... Age as a Suspect Class~fication?. ......... Possible Approaches to Equal Protection Issues .... 5 . SEARCHES AND SEIZURES ................ Probable Cause ............... Warrantless Searches ............ The Exclusionary Rule ............ Exceptions to the Exclusionary Rule ........ Problems with the Exclusionary Rule ........ 6 . ADMINISTRATION OF CRIMINAL JUSTICE .......... Part I . Introduction ............... Part I1 . Protection from Excessive Bail and Bail as a Matter of Right ................ Issues Raised by Preventive Detention: Overview . Federal Application ........ Comparative State Provisions ....... Hawaii Application ................ Capital Punishment and Bail ............ Possible Consitutional Revision ........... Part 111 . Presentment or Indictment by Grand Jury ... Part IV . Trial by Jury in Criminal Cases .... The Right to Jury Trial "in All Criminal Prosecutions" ............. The Right to a "Speedy and Public Trial" ...... The Right to Trial by "an Impartial Jury'' ...... Juries of Less than Twelve/Less than Unanimous Verdicts ................... Part V . Excessive Fines and Cruel or Unusual Punishment .................... Excessive Fines ................ Cruel and Unusual Punishment ........ The Death Penalty: Cruel and Unusual Punishment? . Summary .................... Part VI . Double Jeopardy ............,. Part VII . Habeas Corpus ............... Suspension of the Writ .............. Habeas Corpus and the Exclusionary Rule ...... Possible Approaches to Defendant's Rights Issues ... 7 . RIGHTS AND PRIVILEGES OF THE ACCUSED ......... Part 1. Introduction ............. Part 11 . Self-Incrimination Scope and Effect ................ Convention Review ............... Interrogation. Confessions. and Incriminating Statements .................. Convention Review ............... Part 111 . The Right to Have Assistance of Counsel .... Waiver of Counsel and the Right to Proceed Pro Se .................. Effective Asssitance of Counsel .......... Other Types of Assistance ............ Effective Assistance and the Pro Se Defendant .... Standby Counsel .............. Part IV . Nature and Cause of the Accusation ...... Part V . Right of Confrontation ........... Part VI . Compulsory Process for Obtaining Witnesses ... 8 . RIGHT OF PRIVACY ................... The Origins of the Right of Privacy ........ Interests Protected by the Right of Privacy ..... The Right of Privacy in the Hawaii Constitution ... The Future Development of the Right of Privacy ... Possible Approaches to Privacy Issues ...... Arguments For and Against a Separate Right of Privacv in the Hawaii Constitution ........ 9 . THE IKDIGENT AND THE RIGHT TO GOVERNMENT SERVICES . Introduction .................. Emerging Social and Economic Rights ........ Government Regulation of Economic and Social Services ................... Protecting the Poor Under the Fourteenth Amend- ment ....................... Future Prospects of Protecting the Poor ....... 10 . MISCELLANEOUS PROVISIOKS ................... Part I. Trial by Jury in Civil Cases ............. Part 11 . Imprisonment for Debt ............... Possible Approaches to Imprisonment for Debt Issues ......................... Part I11 . Eminent Domain .................. Comparative State Provisions .............. Hawaii Application .................... Possible Approaches to Eminent Domain Issues ...... Part IV . Construction .................... The Ninth Amendment and the Saving Clause ...... APPENDIX A . Index of Bill of Rights Provisions ........... B . Index of Bill of Rights Provisions not Found in Hawaii ........................ Article I BILL OF RIGHTS POUTICAL POWER Section 1. All political power of this State is inherent in the people; and the responsibility for the exercise thereof rests with the people. Ail government is founded on this authority. RIGHTS OF MAN Section 2. All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities. FREEDOM OF RELIGION, SPEECH, PRESS, ASSEMBLY AND PETIRON Section 3. No law shall be enacted respecting an establishment of relig~on or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. DUE PROCESS AND EQUAL PROTECTION Section 4, No person shall be deprived of life, liberty or property without due process of law, nor be denied the equai protection of the laws, nor be denied the enjoyment of his civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. SEARCHES, SEIZURES AND INVASION OF PRIVACY Section 5. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures, and invasions of priva- cy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. [Am Const Con 1968 and election Nov 5, 19681 RIGHTS OF CITIZENS Section 6. No citizen shall be disfranchised, or deprived of any of the rights or privileges secured to other citizens, unlm by the law of the land. ENLISTMENT, SEGREGATION Section 7. No citizen shall be denied enlistment in any military organiza- tion of this State nor be segregated therein because of race, religious principles or ancestry. INDICIMENT, ROUBLE JEOPARDY, SELF-INCRIMINATION Won8. No person shall be held to answer for a capital or otherwise infa- mous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the armed forces when in actual service in time of war or public danger; nor shall any pemn be subject for the same offense to be twice put in jeopardy; nor shall any person be compelled in any criminal case to be a witness against him%$K. BAIL EXCESSIVE PUNISHMENT Section 9. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. The court may dispense with bail if reasonably satisfied that the defendant or witness wiU appear when directed, except for a defendant charged with an offense punishable by life imprisonment. [Am Const Con 1968 and election Nov 5, 19681 TRIAL BY JURY, WVll CASES Won10. In suits at common law where the value in controversy shall exceed one hundred dollars, the right of trial by jury shall be preserved. The legislature qay provide for a verdict by not less than three-fourths of the members of the juzy. RIGHTS OF ACCUSED Section 11.. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused: to be informed of the nature and cause of th-- accusa- tion; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. The State shall provide
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