Denial of Right to Counsel In Hawaii
The Hawai'i Supreme Court has held that the sixth amendment to the United States Constitution gives a person accused of a crime the right to legal counsel only "at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." State v. Masaniai, 63 Haw. 354, 359, 628 P.2d 1018, 1022 (1981) (citing Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972)) (internal quotation marks omitted).
Furthermore, "the issuance and execution of an arrest warrant alone does not constitute the initiation of adversary criminal proceedings." Id. at 360, 628 P.2d at 1023.
Hawai'i Rules of Penal Procedure Rule 7(a) provides that:
The charge against a defendant is an indictment, a complaint or an oral charge filed in court. a felony shall be prosecuted by an indictment or a complaint. Any other offense may be prosecuted by an indictment, a complaint, or an oral charge.
Moreover, in Hawai'i, adversary judicial criminal proceedings can only be initiated by the prosecutor. State v. Knoeppel, 71 Haw. 168, 170, 785 P.2d 1321, 1322 (1990); State v. Radcliffe, 9 Haw. App. 628, 639-40. 859 P.2d 925, 932-33 (1993).
See also Masaniai, 63 Haw. at 361, 628 P.2d at 1023 (absent significant prosecutorial involvement in procuring the arrest warrant, the warrant cannot constitute the initiation of adversary judicial criminal proceedings).
In Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (Wash. 1966) the defendant was arrested and taken to the police station where certain tests were administered. He was then charged with DUI by citation but was denied contact with counsel until the next morning. In Fitzsimmons, 610 P.2d at 895-97, the defendant was charged with DUI by citation at the point of arrest and immediately requested counsel, but his request was denied.
The Washington court held that the sixth amendment right to counsel attached at the point of citation.