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Defendant’s Right to Testify Violated: Hawaii Supreme Vacates Conviction

by Norma Gonzalez

The Supreme Court of Hawaii vacated the defendant’s conviction for operating a vehicle under the influence of an intoxicant because the defendant’s waiver of the right to testify was not voluntarily, intelligently, and knowingly made.

On February 1, 2016, Eduwensuyi was charged in the Honolulu District Court with operating a vehicle under the influence of an intoxicant. A bench trial took place on July 11, 2016. As required under state law, prior to the presentation of evidence, the judge advised Eduwensuyi that “you have a right to testify if you choose to do so.” He further advised that “you also have a right not to testify,” and “your attorney can give you advice about whether or not you should or should not testify, but ultimately, it’s your decision.” Eduwensuyi told the judge that he understood. Notably, however, the court failed to advise him that the decision not to testify may not be used against him.

The State then presented the testimony of the arresting officer. Afterwards, the defense announced that it would not be presenting evidence.

The judge then advised Eduwensuyi again that he has “a right to testify” and that if he decides “not to testify, the court—I can’t hold it against you, nor would I, that you are not going to testify.” Eduwensuyi indicated that he understood. He then consulted with his lawyer and advised the judge that he did not wish to testify. The court concluded that Eduwensuyi “has been advised of his rights, has knowingly, intelligently, and voluntarily waived the right to testify or not to testify….”

Eduwensuyi was found guilty and sentenced. He appealed to the Court of Appeals, which affirmed. He then appealed to the Hawaii Supreme Court.

The Hawaii Supreme Court explained that both the U.S. and Hawaii Constitutions protect a defendant’s right to testify and right not to testify. In protecting the right to testify, the Hawaii Supreme Court requires that trial courts advise “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.” Tachibana v. State, 900 P.2d 1293 (Haw. 1995). Under Tachibana, a defendant must be advised of his right to testify or not to testify, and if he elects not to do so, it will not be held against him. Importantly, the Tachibana colloquy also requires the court to advise the defendant that no one can prevent him from testifying, not even his lawyer.

The Court noted that Eduwensuyi was never advised that no one may prevent him from testifying, not even his lawyer, as required by Tachibana. In ruling that he voluntarily, intelligently, and knowingly waived his right to testify, the Court of Appeals concluded that he was advised that the decision whether to testify was ultimately his, and that admonition satisfied Tachibana. The Supreme Court rejected that argument. It explained that “an advisement that the decision whether to testify or not to testify is ultimately the defendant’s is not equivalent under our precedent to an advisement that no one can prevent the defendant from testifying.” As a result, the safeguards mandated by Tachibana were not followed in this case.

Under Tachibana, once it is determined that a violation of the constitutional right to testify is established, the State bears the burden of proving beyond a reasonable doubt that the violation was harmless, or the conviction must be vacated. The governing “standard is whether there is a reasonable possibility that error might have contributed to [the] conviction.” State v. Chong Hung Han, 130 Haw. 83 (2013).

The Supreme Court observed that had Eduwensuyi testified he may have been able to successfully rebut the State’s case. But since he did not testify, it is unknowable whether his testimony would have had any effect on the outcome of the case, reasoned the Court. Thus, the Court determined that it was impossible to conclude that the violation of his constitutional right to testify was harmless beyond a reasonable doubt.

Accordingly, the Hawaii Supreme Court vacated Eduwensuyi’s conviction and remanded the case to the district court for further proceedings. See: State v. Eduwensuyi, 2018 Haw. LEXIS 13 (2018). 

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Related legal case

State v. Eduwensuyi



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