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Criminal Defendant Not Advised Of His Right To Testify

A criminal defendant not advised of his right to testify is considered a violation of constitutional right to testify in Hawaii:

In Tachibana v. State, 79 Haw. 226, 900 P.2d 1293 (1995), the Hawaii Supreme Court held that "in order to protect the right to testify under the Hawaii Constitution, trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify." Id. at 236, 900 P.2d at 1303.

The mere absence of such a colloquy constitutes a violation of a criminal defendant's right to testify. Id. at 237-38, 900 P.2d at 1304-5 ("if our holding in this case were to apply retrospectively, we would be compelled to affirm the circuit court's conclusion that Tachibana's right to testify was violated based solely on the lack of such a colloquy").

In other words, "the question is 'whether there is a reasonable possibility that error may have contributed to conviction.' 'If there is . . . a reasonable possibility . . ., then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.'" State v. Akahi, 92 Haw. 148, 150-51, 988 P.2d 667, 669-70 (App. 1999).

















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