by David Kim

The Supreme Court of Hawai’i unanimously held that a circuit court erred by failing to consider the factors listed in Hawai’i Pattern Jury Instructions – Criminal (“HAWJIC”) 3.19A and the effect of suggestiveness on reliability when it denied a defendant’s motion to suppress a field show-up identification. Clarifying the framework announced in State v. Kaneaiakala, 450 P.3d 761 (Haw. 2019), the Court ruled that trial courts evaluating suppression motions challenging show-up identifications must, “at minimum,” weigh the relevant factors in both HAWJIC 3.19 and HAWJIC 3.19A, “the effect of the suggestiveness on the reliability of the identification,” and “any other relevant factors.” The Court further held that when an appellate record is sufficiently developed, the reviewing court should resolve the admissibility question. Conducting its own analysis, the Court concluded that the complaining witness’s identification was not sufficiently reliable under the totality of the circumstances and ordered the evidence suppressed on remand.

Background

On March 22, 2022, a 69-year-old complaining witness (“CW”) was attacked outside her Halawa home by a man she had never seen before. Two neighbors separately pursued the assailant. One, Hernandez, followed on a moped but conceded he lost sight of the man for 10 to 15 seconds. The neighbors encountered Silber M. Jercy at a nearby bus stop, believed he was the attacker, detained him, and called police. Officers arrived and handcuffed Jercy.

At CW’s home, police obtained only a verbal description of the assailant because a Chuukese interpreter was unavailable to facilitate a written statement. CW was told that police “had a male in custody” and that she “would identify him before [going] to the hospital.” She was placed in an ambulance, which was rerouted to the bus stop for a field show-up. Officers were unable to instruct CW that the perpetrator may or may not be present due to the language barrier. During the show-up, CW viewed Jercy from a gurney in the back of the ambulance while wearing a neck brace and attached to medical equipment. Jercy stood alone and handcuffed in front of a uniformed officer. She identified Jercy as her attacker.

Jercy was charged with second-degree assault. Prior to trial, he moved to suppress CW’s identification. The circuit court analyzed only the HAWJIC 3.19 factors, found the identification sufficiently reliable, and denied the motion. The jury convicted Jercy as charged. On appeal, the Intermediate Court of Appeals (“ICA”) vacated the conviction and remanded for a new trial, concluding the circuit court erroneously omitted the HAWJIC 3.19A factors and the effect of suggestiveness from its analysis. The ICA did not resolve whether CW’s identification would be admissible on retrial. The Supreme Court granted certiorari.

Analysis

The Court began its analysis by stating that questions of suggestiveness and reliability in the eyewitness identification context are questions of law freely reviewable on appeal. Kaneaiakala.

It first affirmed the ICA’s conclusion that the circuit court’s analysis was incomplete. Under Kaneaiakala, trial courts must weigh, at minimum, any relevant factors in HAWJIC 3.19 and HAWJIC 3.19A, together with “the effect of the suggestiveness on the reliability of the identification” and “any other relevant factors,” the Court stated. The circuit court based its ruling entirely on the HAWJIC 3.19 factors without addressing six of the seven relevant HAWJIC 3.19A factors or the impact of suggestiveness on reliability.

The State argued that the first HAWJIC 3.19A factor, whether the identification resulted from a suggestive procedure, duplicates the “effect of suggestiveness” inquiry, rendering separate consideration of the HAWJIC 3.19A factors unnecessary. The Court disagreed, explaining that the first 3.19A factor examines whether the show-up procedure itself produced the identification (for instance, whether the suspect’s being handcuffed influenced the outcome), while the “effect of suggestiveness” addresses whether the circumstances surrounding the identification affected it (such as police implying the assailant would be present). Though these inquiries may overlap in certain cases, they highlight distinct concerns regarding field show-ups, the Court reasoned.

The Court next addressed a gap in the ICA’s disposition. By remanding without indicating whether CW’s identification should be admissible, the ICA left open two problematic possibilities: (1) the circuit court would re-evaluate and potentially deny the motion again, resulting in a retrial with identical evidence, or (2) the identification would be automatically excluded without a reliability determination. Because questions of suggestiveness and reliability are legal questions freely reviewable on appeal and the record was sufficiently developed, the Court concluded that the appellate court should resolve the suppression question to serve finality interests and avoid an unnecessary expenditure of judicial resources. The Court noted that when reviewing the pretrial denial of a suppression motion, an appellate court may consider both the suppression-hearing record and the trial record. State v. Kong, 883 P.2d 686 (Haw. Ct. App. 1994).

Turning to the merits, the Court evaluated each factor required under Kaneaiakala and determined that CW’s identification was insufficiently reliable. Among the HAWJIC 3.19 factors, several favored reliability: (1) CW had an opportunity to observe her attacker, (2) Jercy generally matched CW’s description, (3) the identification was not cross-racial, (4) CW had the capacity to identify, (5) the show-up occurred roughly one hour after the attack, and (6) CW expressed certainty. However, the Court assigned diminished weight to several of these factors because CW’s written description was not documented until after the show-up and may have been influenced by it. The Court also noted CW’s testimony that the attacker wore a facemask, which further reduced the weight of her stated certainty.

Factors weighing against reliability included the substantial stress CW experienced during the attack, her lack of prior contact with Jercy, and the facemask worn by the assailant.

The HAWJIC 3.19A factors weighed predominantly against reliability, according to the Court. Police told CW they had found the assailant and failed to warn her that the perpetrator may or may not be present. Jercy was handcuffed and stood in front of a uniformed officer. CW’s identification appeared to have been prompted by an EMT in the ambulance who asked, “That’s the guy? You can see him?” The show-up itself was conducted while CW was secured to a gurney and wearing a neck brace. The overall suggestiveness of the procedure – including police statements that they had found the assailant, the rerouting of a hospital-bound ambulance for the procedure, and the stressful conditions under which CW made the identification – further diminished reliability, the Court determined.

Balancing all factors, the Court concluded that more than half of the relevant considerations weighed against reliability, and several factors favoring reliability were dampened by the failure to obtain a written description or provide a warning before the show-up. The Court held that CW’s identification was not sufficiently reliable to overcome the suggestiveness of the field show-up, citing Kaneaiakala’s recognition that “misidentifications are one of the leading causes of wrongful convictions.” Thus, the Court held that the suppression motion should have been granted.

The circuit court’s error was not harmless beyond a reasonable doubt, the Court determined. The remaining identification evidence did not constitute the “wealth of overwhelming and compelling evidence” required to render the error harmless. State v. Spies, 575 P.3d 708 (Haw. 2025). Hernandez conceded he lost sight of the assailant during pursuit, Jercy denied committing the assault, and the State relied heavily on CW’s identification throughout trial.

Conclusion

Accordingly, the Court affirmed the ICA’s judgment to the extent it vacated the circuit court’s findings and amended judgment of conviction and remanded the case for further proceedings with CW’s field show-up identification suppressed. See: State v. Jercy, 2026 Haw. LEXIS 150 (2026).  

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