Defendant's Waiver of Rights In a Criminal Case In Hawaii
a defendant may waive any rights in any case except right as follows:
A defendant in a criminal case has certain rights unless he or she decides to waive them. In Hawaii, before a defendant waives certain rights, the trial court must conduct a colloquy to insure that the waiver is made voluntarily, knowingly, and intelligently. Examples are:
Right to testify ( Tachibana, supra).
Right to an included offense instruction ( State v. Kupau, 76 Haw. 387, 395-96 n.13, 879 P.2d 492, 500-01 n.13 (1994)).
Right to trial by jury ( State v. Young, 73 Haw. 217, 220-21, 830 P.2d 512, 514 (1992); and State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993)).
Right to counsel ( State v. Vares, 71 Haw. 617, 622-23, 801 P.2d 555, 558 (1990); State v. Hoey, 77 Haw. 17, 33, 881 P.2d 504, 520 (1994); and State v. Merino, 81 Haw. 198, 219, 915 P.2d 672, 693 (1996)).
Rights lost by pleading guilty or nolo contendere (Hawaii Rules of Penal Procedure Rule 11; Conner v. State, 9 Haw. App. 122, 126, 826 P.2d 440, 442 (1992)).
The primary reason for the pre-waiver colloquy requirement is the difficulty in determining at a post-conviction relief hearing whether such a waiver occurred and the resulting waste of judicial resources. Tachibana, 79 Haw. at 234, 900 P.2d at 1301.
The United States Constitution affords a Fifth Amendment right not to "be compelled in any Criminal Case to be a witness against himself." Similarly, the Hawaii Constitution, affords an Article I, Section 10, right not to "be compelled in any criminal case to be a witness against oneself." In other words, both constitutions assure a defendant in a criminal case the right to remain silent.
In Tachibana, the defendant did not testify. He waived his right to testify, not his right to remain silent. the Hawaii Supreme Court ruled in relevant part as follows:
A defendant's right to testify in his or her own defense is guaranteed by the constitutions of the United States and Hawaii Hawaii and by a Hawaii statute.State v. Silva, 78 Haw. Hawaii 115, 122-23, 890 P.2d 702, 709-10 (App. 1995)
In order to protect the right to testify under the Hawaii 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.