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Hawaii Supreme Court: Defendants Entitled to Hearing Within 2 Days

by Dale Chappell

There is a “strong presumption” a defendant held in custody beyond two days without a preliminary hearing (or other method to show probable cause), absent “compelling circumstances,” must be released, the Hawaii Supreme Court held on November 21, 2017.

When Si Ufaga Moana and Jayvan Curioso were arrested in separate cases, the State failed to bring them to a preliminary hearing to establish probable cause for their detention within the two days required by law. That same law also requires their release if the State cannot give “compelling” reasons for keeping them in jail beyond two days without a hearing.

Moana and Curioso moved for their release after the two-day period expired; instead of hearing their motions, the trial courts gave the State more time to show probable cause. Regardless, the pair continued to push for their release, filing writs of mandamus with the Hawaii Supreme Court, asking it to order their release. When the Court ordered the State to respond as to why it was holding the men without probable cause, the State filed indictments against them. That negated the need for a preliminary hearing and rendered the matter before the Supreme Court moot.

Normally, that would have been the end of the cases. However, the Court justified taking the cases to consider the merits “based on an exception to the mootness doctrine because they [the fact patterns in these two cases] are capable of repetition but would otherwise evade review.”

Hawaii Rule of Penal Procedure 5(c)(3) provides that “if any defendant is held in custody for a period of more than 2 days after initial appearances without commencement of a defendant’s preliminary hearing, the court, on motion of the defendant, shall release the defendant to appear on the defendant’s own recognizance.” There are three exceptions to justify holding a defendant longer than two days: (1) when an act of the defendant or his request or consent allows it; (2) when a “compelling fact or circumstance” prevents a timely hearing; and (3) when a compelling circumstance would make the release “against the interest of justice.”

There is a “strong commitment to protecting defendants held in custody by providing a prompt preliminary hearing,” the Court said. The committee that created the rule rejected a “reasonable time” standard in favor of a “firm deadline subject to few exceptions,” the Court noted.

While Rule 5(c)(3) does not provide for outright dismissal of the charges, it does allow a defendant to be relieved of the burden of incarceration without probable cause, the Court said. Then, if the State desires, it can ask for more time for good reason, but the State cannot simply hold a defendant in jail while it makes its case, the Court instructed. See: Moana v. Wong, 141 Haw. 100 (2017). 

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Related legal case

Moana v. Wong



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