Chapter 5: Trials – Justice on an individual level

In Hawaiʻi, the Massie case is often referred to as the “trial of the century.”^[1] However, that occurred in the 1900s. We are now in a new century, and so far, the various cases involving Katherine and Louis Kealoha are certainly a top contender for Hawaiʻi cases of this century. This story is going to outline how the court system at first failed, and then ultimately vindicated, a 90 year old woman and her son against Honolulu’s self-proclaimed power couple, a high-ranking prosecutor and her police chief husband.

The story starts in 2009 with Florence Puana, a 90 year old widow who lived in her family home in Wilhelmina Rise in Honolulu with her youngest son, Gerard, who took care of her.^[2] Florence’s main source of income was social security, and Gerard was on disability insurance from a work injury. Florence wanted to buy Gerard a condo to have a place to live after she passed on, so that the family home could be sold and the proceeds split with her other children. However, neither Florence nor Gerard had were employed and so they did not qualify for a loan to buy a condo for Gerard. Florence’s granddaughter, Katherine Kealoha, offered to help by executing a “reverse mortgage on the family home. In a reverse mortgage, the mortgage company gives the homeowner the price of the home. The homeowner can continue to live in the home until they die, and then title to the home is transferred to the mortgage company. The homeowner can avoid having the home turned over to the mortgage company if they pay off reverse mortgage, which can act like a loan.

Katherine Kealoha was an attorney, a high-ranking prosecutor for the City & County of Honolulu, and she said that she would handle the reverse mortgage for Florence by buying a condo for Gerard with some of the money, and temporarily borrowing some of the leftover money, but would later pay it back to Florence. According to Florence, Katherine told Florence, “Grandma, don’t worry, I’m an attorney, and you can trust me.”^[3]

During this time, Gerard also gave Katherine a total of $70,000 to invest for him. Because she was family, he did not ask for a receipt.

Florence received $513,474 from the reverse mortgage in October 2009 and the money went into a joint bank account of Katherine and Florence, but the bank account statement went to Katherine only. After a $360,514 withdrawal for the purchase of Gerard’s condominium there should have been roughly $150,000 left in the account. Katherine did purchase the condo, but put it in her own name. She spent the rest of the money and by April 2010 there was only $365 left in the account.^[4]

Florence received a bank loan statement in February 2012 saying that the original mortgage company had sold the loan to another bank. Florence was quite confused because she had been told it was all paid off. However, no money has ever been put towards paying off the reverse mortgage and, with interest on the unpaid balance, Florence now owed $651,783 if she wanted to keep her home. Florence reached out to Katherine, but she refused to respond to phone messages from Florence, Gerard, and two of Florence’s other daughters.

In September, Florence sent a letter to Katherine asking for answers. Katherine wrote a response to Florence, Gerard, and the rest of the family denying that she had done anything wrong and claiming that she had put up the money to help buy Gerard’s condominium. In reality, Katherine used the money to pay for personal expenses, including almost $24,000 for a celebration lunch for her husband, Louis Kealoha, the Honolulu Police Chief;  $10,663 in car payments for a Mercedes Benz and Maserati; and $7,800 to install air conditioning at their home.

In March 2013, Gerard and Florence filed a civil lawsuit as plaintiffs against Katherine, the defendant, in state court making 14 claims relating to her misconduct regarding the reverse mortgage and Gerard’s missing $70,000. Not only did Katherine deny the allegations, but she counterclaimed against Florence and Gerard saying that because these allegations “impugned her character and reputation in the community” she sought monetary penalties against Florence and Gerard. Later that year, Florence was forced to sell the Wilhelmina Rise home, as she had no way of raising the $651,000 that was still owed on the mortgage, and she was forced to move in with one of her daughters.

Three months later, on June 22, 2013, Katherine called 911 at 1:30 pm to report the theft of the mailbox from her home. As mailboxes are federal property, their theft is a federal offense. At that time, she was married to Louis Kealoha, the Honolulu Police Chief. Although Katherine’s HPD call was logged at 1:30 pm, the HPD arrived before 9 am the same day – over four hours earlier – to collect the alleged home security video of the evidence.  that the police technician who collected the video altered the report and tried to pass it off as the original. This was the first of many suspicious events revolving around the alleged mailbox theft.

Gerard was never questioned about an alibi and HPD officers were unable to collect any physical or circumstantial evidence to directly tie him to the theft. The only tie to Gerard was a fuzzy, whited-out home security video, which never clearly showed the perpetrator’s face, but Katherine, Louise, and one of the crooked officers, who was a relative of Katherine’s, said that they identified Gerard by his style of walking.

Gerard was charged by the US Attorney’s Office with the federal crime of destruction of a mailbox, and the state civil trial was put on hold pending the resolution of the federal criminal trial (according to Gerard’s federal public defender, Alexander Silvert, “it’s normal procedure for a criminal case to take precedence over a civil case when one of the parties in the case is facing criminal charges. This protects that person’s fifth amendment rights not to incriminate themselves by saying something in a civil proceeding that could be used against them in their criminal case. As a prosecutor, Katherine certainly would have known this delay would occur. A delay met no verdict against her in the civil case. And if Gerard was convicted in his criminal case, his credibility as a witness would be severely damaged if he later testified in the civil case. And that would greatly increase Katherine’s chances of success in the civil case.”^[5] Silvert’s defense theory was that Gerard was being falsely identified as the thief by Katherine and Louis Kealoha to discredit him in the civil case, in which Gerard and Florence were asking for hundreds of thousand of dollars in compensation.

After stellar work by the federal public defenders office, trial in the federal criminal case started on December 2, 2014. But the second witness called by the prosecution, Louis Kealoha, the Honolulu Police Chief, “accidentally” blurted out that Gerard had been convicted for breaking into his neighbor’s house. This is improper testimony, trying to use an unrelated bad act of a person to try to prove that he was likely to have committed the “bad act” of stealing the mailbox in this case. This is the type of testimony that Louis, who had been a police officer for 32 years, would have known was impermissible and would lead to a mistrial (the situation where the trial is stopped without a resolution. A mistrial can lead to a retrial at a later date, but can also lead to the charges being dismissed).

The federal public defenders’ office had found evidence that indicated that the Kealohas had collaborated with five members of the HPD to stage the mailbox theft to pin it on Gerald to keep him from succeeding in the state civil case.  This evidence lead largely was ignored until the federal public defenders office dug it up.

The federal prosecutor’s office moved to have Gerard’s case not only dismissed, but dismissed “with prejudice,” meaning that it could not be brought back at a later date. The federal public defenders office then presented the evidence of the collusion between the Kealohas and four HPD officers to the FBI, which investigated these allegations in preparation for a potential federal criminal case against Louis and Katherine.

Meanwhile, once the federal criminal case was dismissed with prejudice, the state civil trial of Florence and Gerard Puana versus Katherine Kealoha continued, but in 2015 a jury not only found that Katherine was not liable to her grandmother, but awarded Katherine hundreds of thousands of dollars for the alleged damage to her reputation, for a total of $658,000 to be paid by Florence and Gerard to Katherine.^[6]

However, the FBI investigation continued, and in October 2017 the federal prosecutor brought a 20 count indictment, later amended to 23 counts, in federal court against the Kealohas for multiple offenses, including staging the mailbox theft to frame Gerard, but also charging Katherine with additional counts of stealing money from two children’s trusts and creating a false identity in order to get bank loans.^[7]. Two HPD officers pled guilty before trial.

In June 2019, the Kealohas and two other HPD officers were convicted guilty of federal conspiracy charges and obstruction of justice. Louis was sentenced to 7 years in prison and Katherine to 13 years. In September 13, 2019, a state civil court judge vacated the verdict that had granted Katherine a judgment of $658,000 against Gerard and Florence and granted a new trial.^[8]  In October 2019, the Kealohas signed plea agreements with federal prosecutors on the bank fraud charges and trust fund theft charges.

So what can we glean from this story?

First, unlike the legislature, where bills are made to apply to classes of people, at the judiciary level justice is personal. In these intertwined cases, you saw a grandmother and uncle trying to get their money back from the granddaughter. You saw the uncle accused of theft, and later, the prosecutor and the police chief charged with multiple crimes related to conspiracy, obstruction of justice, and other wrongdoing.  While there is such a thing as a “class action” in which a group of people who suffer the same injury, such as the case in the movie (taken from a real life case) Erin Brockovich in which a California power company was sued in a class action for water pollution, in general court cases are structured to provide justice to the specific people in the courtroom before them.

Second, you can see that the courts are divided into two jurisdictions, state and federal. Within each level, the courts are further divided into two different types: civil and criminal. A civil action, as will read more about below, is where one or more people sue another person in order to make things right between the parties. The typical remedy that the plaintiff in a civil cases asks for, as in the case of Florence and Gerard versus Katherine, is money. However, the defendant in the civil case can turn around and also make a claim against the plaintiffs, and can also ask for money damages, as occurred in the state civil trial where Katherine asked for and was awarded over $650,000 against Florence and Gerard.

On the criminal side, which in this case happened at the federal level, there is a prosecutor who brings charges against one or more defendants, and if the defendants lose, they can be put in jail. That was the potential fate of Gerard in the federal criminal trial against him for allegedly stealing the mailbox, and that was the actual fater of Louis and Katherine Kealoha when they were found guilty of framing Gerard for the mailbox theft.

There are more differences between the civil and criminal cases, but the potential punishment, money versus jail time, is one of the biggest. Another takeaway from this case is that the trial process can take time. Unlike TV shows that sometimes show attorneys getting a case on Monday and going to trial on Friday, it can take months or even longer for a plaintiff, in a civil case, and the prosecution, in a criminal case, to do their research and file lawsuits. Another difference is that the courts have processes to try to ensure the parties’ rights. For example, the state civil case was paused while the criminal case was playing out so that information that might have come up in a civil case could not be used at the criminal trial, where the penalties are more grave.

What is the Hawaiʻi state court system?

The court system refers to the four levels of courts in the state: two layers that hear trials, and two layers that hear appeals. We will cover appeals in the next chapter, so let’s start with the trial courts, whichare more familiar to most people. In Hawaiʻi, there are specific judges who are selected to serve in District Court which hears the less serious civil and criminal offenses.^[9] Because these are less serious, the judges are only required to have practiced as an attorney for five years before being selected as a judge. The Circuit Court^[10] is assigned the more serious civil and criminal offenses, and for that reason judges must have served as an attorney for 10 years before becoming a judge. In Honolulu, which is the largest circuit by far due to its large population, there are separate courthouses for the district court, the circuit court, and the family court (see specialty courts below for more information on Family Court). However, on the neighbor islands, because there are far fewer judges, there is just one courthouse where all the judges sit. However, the judges are still listed as District Court, Circuit Court, or Family Court.

Specialty courts within the circuit court/district court system

One example of a specialty court is Family Court^[12], which has judges who serve at both the district and circuit court levels.  In all districts except for Kauai, family Court has their own set of judges.   Family court also sits (meets) at a different location in Honolulu. Whereas the criminal and family civil courts meet in Honolulu, Honolulu Family Court sits in Kapolei. In the neighbor islands, there is not a separate courthouse for the courts as the number of judges is much smaller.

Family Court hears legal matters involving divorce, including child support, child custody, and paternity; children, including abuse and neglect, juvenile delinquency, and adoption; and domestic violence, including abuse of household members and restraining orders.

The Judiciary understands that divorce cases are personal and emotional, and most people do not have any knowledge of their legal rights and protections, so they offer monthly “Divorce Law in Hawaii” zoom sessions, which you can access to the judiciaries homepage. Here is the current link (https://www.courts.state.hi.us/self-help/divorce/divorce_law_in_hawaii). Please note that the link itself may be subject to change, but you can always go onto the Judiciary’s website and search for this information.

Please note that the information on the pre-trial process and the trial itself can be substantially different in divorce actions, and it is highly recommended that you hire an attorney, or, if you cannot afford one, that at least you attend one of the  “divorce law in Hawaii” sessions.

The Legal Aid Society of Hawaii has a helpful video on “what to do if you receive divorce papers from your spouse.” (link: https://www.youtube.com/watch?v=7iZL1PElfOw)

Other specialty courts include land court (for some specific classes of real property^[13], the tax appeal court^[14] and the environmental court.^[15] There are also judges who sit for probate court  (the court that handles disputes in wills, trusts, and guardianships), girls court for female juvenile offenders (https://www.girlscourthawaii.org/), mental health court (https://www.courts.state.hi.us/docs/special_projects/additional_info_MHC.pdf), and the HOPE court (Hawaiʻi Opportunity Probation with Enforcement) for drug offenders, https://www.courts.state.hi.us/docs/news_and_reports_docs/State_of_%20the_Art_of_HOPE_Probation.pdf).

Aside from Family Court, all of the rest of the judges who handle these different specialties are chosen from the regular ranks of district and circuit courts. For more information about each court, and four the most current information about each court, please consult the Judiciary’s website. The links above will get you started.

We will only be talking about the state trial system as there is no county judicial branch. Unlike other states, where there are not only county courts, but sometimes even municipal (city) courts and magistrate courts, Hawaiʻi’s two-tier trial system is quite streamlined.

Who are judges, what do they do, and how does someone become a judge?

How would you select a judge? What qualities would be important?

The American Bar Association defines it as “compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law.”^[16]

You may already be familiar with the federal judge and justice nomination practice from your own knowledge or from an earlier chapter. Therefore, in this chapter, we’re going to concentrate on how our Hawaiʻi state judges are selected, and just refer to the federal process as a baseline.

At the federal level, the qualifications for becoming a judge (lower two tiers of courts) or a justice the term for a judge serving on the United States Supreme Court) are extremely loose. As only the Supreme Court is even mentioned in the constitution, and that only briefly, there are no constitutional requirements, such as age, or citizenship, such as we see in the constitutional requirements to be president, or even experience, to become a federal judge. Every time there’s a vacancy on the United States Supreme Court, some news outlets drag up the old tired story that “you don’t even have to be a lawyer to be appointed to the United States Supreme Court!” While technically there is no such requirement in the constitution, as a practical matter, every single justice on the court has either attended law school, took law classes, was admitted to the bar, or practiced law.^[17].

For example, President George W. Bush attempted to appoint attorney Harriet Miers, an attorney with over 30 years experience practicing law and whose career included being the first woman to be hired at one of Dallas’s top law firms, the first woman to become President of that firm, the first woman to lead a large law firm in the state of Texas, the first woman president of the Dallas Bar Association, and the first woman elected president of the State Bar of Texas, to the Supreme Court.  However, she had neither served as a judge nor had any constitutional law experience and she had a tough time when reviewed by the Senate Judiciary committee, struggling with their questions, and having the chair of the committee send back her written questionnaire and ask for better answers. After only three weeks into the nomination process, she withdrew her nomination.^[18] So even though there are no constitutional requirements, they United States Senate has their own requirements to ensure that only qualified nominees are approved (this refers to their qualifications to be a judge, not their political opinions).

Hawaiʻi, like most if not all other states, has specific requirements for our judges.  The Hawaiʻi Constitution provides: “Justices and judges shall be residents and citizens of the State and of the United States, and licensed to practice law by the supreme court.  A justice of the supreme court, a judge of the intermediate appellate court and a judge of the circuit court shall have been so licensed for a period of not less than ten years preceding nomination.  A judge of the district court shall have been so licensed for a period of not less than five years preceding nomination.”^[19]. If there is a temporary vacancy on a court, a judge from a lower court can be temporarily appointed to fill that vacancy. If there is the need to fill in additional judges at the lowest court level, the District Court, the Chief Justice is authorized to appoint “per diem” judges (part time judges) to the District Court on an as-needed basis. The per diem judges must meet the same qualifications as a regular District Court judge.

How do the majority of states select their judges?

The majority of states elect either all of their judges, or their lower court judges. A few states appoint their judges for their first term, and then are elected for additional terms.^[20] When asked how judges should be selected, many people instinctively assume that they should be elected, and that elections that would lead to better judges.

However, in reviewing judicial ads in some of the places where judges are elected, you can see that there is a tendency for opponents of a judge to deter voters by claiming that the judges “soft on crime.” Not only do these ads ignore the fact that judges have a duty to ensure that the rights of all defendants meet constitutional standards, but this can cause judges to unfairly take a harder stance against criminal defendants just avoid this accusation, which is not fair to defendants, who should be treated fairly, not as props to support someone’s campaign. Here are a couple of screenshots from jurisdictions in which people were campaigning against a judge.

These sensationalistic ads do not tell the complete story: for example, in the attack ad against Judge McLaughlin on the right, claiming that she “chose to void the guilty plea of a drunk driver who admitted to killing a pregnant woman” does not indicate that she agreed with another judge that a defendant deserved a new trial because his attorney had given him incorrect information. This ad was found to be so misleading that the Pennsylvania State Bar Association notified the other judge that the ad ran afoul of its judicial campaign advertising standards.^[21].  However, how many people saw the newspaper article versus how many people saw and remembered the sensationalistic TV ad?

How does Hawaiʻi select its judges?

Hawaiʻi is in the minority in that we have a merit selection process in which potential judges apply to a special commission as provided in the Hawaiʻi Constitution. The commission reviews the application, and then passes along 4 to 6 names for each vacancy for most positions, and no less than 6 names for each district court vacancy.  According to the Judiciary Selection Commission rules,

Rule 10.     EVALUATION OF APPLICANTS AND PETITIONERS

      A.  The commission shall consider each applicant’s and petitioner’s background, professional skills and character, and may give consideration to the following qualities.

(1) integrity and moral courage
(2) legal ability and experience
(3) intelligence and wisdom
(4) compassion and fairness
(5) diligence and decisiveness
(6) judicial temperament
(7) such other qualities that the commission deems appropriate^[22]

The governor receives this list of nominees and selects one for the three higher courts, and the Hawaiʻi Supreme Court Chief Justice selects a name from their list for the lower level trial courts, the district courts. In both cases, after the governor or the chief justice has selected the name, the nominee still needs to be approved by the Hawaiʻi Senate. The state counterpart of the ABA, the Hawaiʻi State Bar Association (HSBA), can weigh in with a recommendation to see what the Senate as to whether the attorneys’ association finds the nominee to be qualified or not qualified. The HSBA uses the criteria of integrity and diligence, legal knowledge and ability, professional experience, judicial temperament, financial responsibility, public service, health, and ability to perform the responsibilities and duties required of the position.^[23]. If approved, the District Court judges receive a six year term, and the other judges and justices receive a 10 year term.^[24] The judges may apply for additional terms.

The trial process

So let’s take a closer look at the civil and criminal trial courts. When you see lawyers on TV, the time frame is often ridiculously shortened, with attorneys receiving a case on Monday and going to trial on a Friday. However, before that can happen, there is a formal process where the two sides of a legal dispute can set out their positions. Going to trial is not necessarily the goal of all people who have a dispute, and many cases are “settled” (agreed on and ended) before they get to the trial. Therefore, you should know how cases are started and what the process is before trial, because if you are ever actually involved in a case, the odds are good that you won’t necessarily get to the trial phase. Therefore, how you organize your case before the trial can determine whether you are satisfied with the outcome or not.

We’re going to talk first about civil cases, and cover criminal cases later, because the pre-trial process is different for both. First, what is a civil case? A civil case is a case in which one or more persons  (and a “person” in the law could be a business, an agency, or other organization, not only a human being) believes that another person or persons has done them some type of harm, and they want to be made whole. This first person is called the “plaintiff,” and the person that they are bringing the suit against is called the “defendant.”  Samples of common types of civil cases are personal injury suits, where a plaintiff is harmed by the actions of a defendant; real property disputes, such as a disagreement about neighborhood boundary lines, or a contract dispute, where the plaintiff thinks that the defendant has violated the terms of some business agreement, such as failure to deliver goods or  breech of a lease.  Often the plaintiff seeks to be paid money for the loss caused by the defendant, such as the payment for their medical expenses, loss of work, and out-of-pocket expenses in a personal injury suit, payment for an easement (right of use) in a real property boundary case, and repayment for monetary loss for the goods not received in a contract dispute.

Basic trial process

The following is a bare-bones outline of the pleadings in a civil case. The section does not include the more sophisticated additions and variations on the process but is intended to outline the general process of setting out a claim and defending against it.  Everyone in a lawsuit needs to be fully informed of the grounds against them, so a civil lawsuit starts with a formal document called a “complaint,”^[26] which is filed with the right trial court and lists all of the alleged wrongs of the defendant and states what the plaintiff is looking for to be made whole. This document needs to be “served” on the defendant, which means that the defendant receives a copy of the complaint with enough time to dispute it^[27] The document the defendant must file to keep the case going is called an “answer,” and if the defendant does not file their answer on time, which is 20 days after they have been served with a complaint,^[28], the plaintiff can go to the court and ask for a “default judgment” against the defendant. This means that the court considers the defendant’s failure to answer as an admission that they are wrong. With this default judgment, the plaintiff can seek to force the defendant to pay for their damages without going any further in the trial process. That is why it is absolutely vital, if you were ever served with a complaint, to take positive steps to file an answer within the required time frame. Don’t ever ignore a complaint because you think it is ridiculous or without merit, or because the idea of being involved in a legal proceeding makes you nervous. Even if you agree that you may have done something wrong that is harmed the plaintiff, you have a much better position to settle the case if you file an answer, as it gives you time to negotiate with the plaintiff.

Sometimes the defendant not only thinks that they are not liable to the plaintiff, but they think the plaintiff has wronged them. In that case, rather than filing a separate lawsuit, the defendant can file a legal document called a “counterclaim,” which is the defendant’s claim against the plaintiff for compensation.^[29]

Here’s an example of the difference between an answer and a counterclaim: In a contract dispute where a farmer sues a grocery store for not paying for crates of tomatoes that they delivered, the grocery store could file an answer stating that the tomatoes received were rotten and unable to be sold to consumers. By filing this answer, if the grocery store wins, they would not have to pay the farmer. However, the grocery store could also file a counterclaim against the farmer if the farmer sold them tomatoes contaminated with salmonella and the grocery store had to throw away all its other tomatoes because the contaminated tomatoes had been stacked with the healthy tomatoes from other producers. In this case, the counterclaim would ask for reimbursement for the loss of all of the other farmers’ tomatoes that had to be thrown away.

The plaintiff then responds to the counterclaim by filing a “reply,” which is their formal claim of lack of responsibility for the damages listed in the counterclaim. Watch the two videos below, on criminal complaints, civil complaints, and resources that you can access if someone serves you with a complaint.

Once all of the pleadings have been submitted, the case goes through the pre-trial litigation process.

If a plaintiff has a personal injury case with a probable jury award of $150,000 or less, they cannot go directly to trial.  Instead, the Judiciary has a mandatory arbitration program called CAAP (Court Annexed Arbitration Program) in which an arbitrator presides at a hearing that is less formal and faster than a trial. These arbitrators are volunteer attorneys who have been in practice for at least five years and who have received specific arbitration training by the court. Parties still present evidence and call witnesses. If one of the parties disagree with the arbitrators award, they can file a “Notice of appeal and request for trial de novo” (a fresh trial in circuit Court) but if the party who filed the appeal does not improve on their arbitration award by 30% or more, the trial court may impose penalties on that party. Therefore, many of these relatively low cost personal injury cases settle or agree to the arbitrators award, and at that point the case is final before it ever goes to trial.

Criminal cases start differently. Individuals cannot bring them; the only people who can bring them are the prosecutors office, either at the state or federal level, or in some instances, the state Department of the Attorney General. While many people know that the county prosecutor’s office charges crimes, fewer people are aware of the fact that there is a division of the state Department of the Attorney General (AG) that also prosecutes crimes.^[30]

The simplest cases are brought with a bare-bones complaint which differs from the civil complaint that you saw in the earlier video as it only has to provide enough detail so that the defendant will have a clear idea what is being alleged. A basic criminal complaint in Hawaiʻi, for a misdemeanor, which is the lower level of crime, starts with simply alleging that the named defendant violated a specific section of the criminal statutes, and lists the place and the date and time. as shown in the video above.

A felony, which is the more serious level of crime, can be brought either by an “indictment,” which is a document issued by a “grand jury,” which is a panel of citizens convened to hear the evidence brought by the prosecution and decide whether there is “probable cause” to charge the defendant with the offense. To establish probable cause, Hawaiʻi Rules of Penal Procedure Rule 7 requires the State to offer sufficient evidence to “lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion” that the defendant has committed the felony.

The defendant does not testify at these grand jury hearings, but if they are indicted they can get a copy of the transcript of the presentation which they can use in preparing for trial. It is also now possible in Hawaiʻi to bring a more serious criminal action through something called an “information,” which is a list of the charges submitted in writing with supporting exhibits that does not have to go to the grand jury but is decided on by a judge. [fn: It is also possible to charge a felony through the simpler complaint process if specific requirements are met under the Hawaiʻi Rules of Penal Procedure rule 7(b), https://www.courts.state.hi.us/docs/court_rules/rules/hrpp.pdf, accessed 3/4/22]

Unlike a civil case, where a defendant must submit a written answer that usually goes into detail, within 20 days, a criminal defendant will come to court and either plead “not guilty,” “guilty,” or “no contest.” Pleading no contest means that the defendant is not willing to fight the legal action and will accept the judge’s sentence, but they are not admitting to having committed the crime.

The Hawaiʻi Rules of Penal Procedure (HRPP) require the prosecutors to disclose some types of information in the prosecutor’s possession to the defendant and their attorney, including as the names and addresses of the prosecution witnesses; any reports or statements of experts; any evidence, including books, papers, documents, photographs, or tangible objects which the prosecutor intends to introduce at trial; whether there has been any electronic surveillance of relevant conversations; and “any material or information which tends to negate the guilt of the defendant… or would tend to reduce the defendant’s punishment.”^[31] The defendant has even more limited requirements than that, but if they are going to allege certain defenses, such as claiming an alibi, they have to disclose those in advance so the prosecution can have the opportunity to check this out prior to trial.

Jury trial or Bench trial?

If a jury trial is selected, there will be 12 jurors selected to serve on the jury selected from a larger pool of jurors. The potential jurors in the pool are asked questions by the judge and the attorneys in a process called “voir dire,” which is designed to help eliminate jurors who would be specifically prejudiced in this case. Each side gets unlimited “for cause” challenges for jurors who have a clear conflict of interest in the case, such as a juror who knows one of the parties.  Each side has a limited number of “peremptory” challenges, which are a “gut feeling” challenge against potential jurors where one side does not  have a specific reason to have that juror be eliminated from the jury, but who they feels would be unduly prejudiced against them. In general, each side has only three of these peremptory challenges, although that can change depending on how many parties there are, how many alternate jurors are selected, or if the charge is punishable by lifetime imprisonment.^[32]

Again, often on TV, you will see dramatizations where all 12 jurors need to be in agreement in order to render a verdict. That is only true in criminal cases, where the jury must be unanimous. However, in civil trials, there only needs to be ten of the twelve jurors in agreement.^[33]

After the jurors are selected, the trial will start.

Trial process

This textbook is being created as a companion piece to the Kapi’olani Community College LAW 101 course, the Hawaiʻi Legal System, which is part of the Kapi’olani Community College (KCC) Paralegal program. Therefore, detailed information about the actual process of the civil trial is covered in KCC’s LAW 111, Litigation, course, and the process for criminal trial is covered in LAW 176, the Criminal Law course. The information provided here is merely a general overview.

So, in brief, the plaintiff (civil case) and prosecutor (criminal case) start the trial with their opening statement.  The opening statement contains their theory of the case and the facts that they are going to prove in the trial and what they think the correct conclusion is going to be. It doesn’t doesn’t cite to the statute or cases. It just tells the judge and the jury (if there is one) what the position is for that side.

The defendant has the option to go next and present their opening statement right after the prosecutor. However, the defendant also has the right to reserve sharing their opening statement until the start of their “case in chief.” The case in chief is each side’s complete package of their evidence, excluding any rebuttal (reply) to the allegations that the other side raises in trial.

The plaintiff/prosecution will start by introducing evidence, usually by calling a witness. Evidence is usually introduced through witnesses, who give eyewitness testimony; experts, who use their expertise in areas such as DNA in a criminal trial or cryptocurrency in a banking fraud trial to review the evidence and offer their opinion on what the evidence shows; documents, such as contracts, wills, or deeds to land, and physical evidence, such as a broken car part to establish a product liability claim in a tort action. For each witness who is called, the plaintiff/prosecution will ask the first set of questions, called “open-ended” questions, which are meant to allow the witness to tell their story without coaching. After the plaintiff/prosecution is done questioning their witness, the defense counsel will have their turn to ask questions at the same witness, and in this case they are allowed to ask what are called “leading” questions, which suggest an answer.

Watch the video below which is the actual transcript of the federal trial against Gerard Puana, and which we will compare the direct, open ended questions of the prosecution versus the very targeted, leading questions of the defense counsel.

optional: you can read the trial transcript to the link below and in addition to seeing the full cross-examination of Niall Silva, you can see and compare both side’s opening statements, as well as the crucial moment when Louis Kealoha triggers the mistrial.

After the defendant asks their leading questions, the prosecution or plaintiff can ask rebuttal questions aimed at rehabilitating the witness in the eyes of the jury and the court.

Once all of the evidence has been entered, either through witnesses, or through exhibits, as shown in the video above, the plaintiff/prosecution rests their case. At this point, if the defense feels that the prosecution or plaintiff has not proved their case, they can move the court for a “summary judgment,” which means that the defense will win without having to produce any evidence. However, this is very rare, and more typically the case moves on to the defendant’s side. If the defense has already provided their opening statement directly after the prosecution/plaintiff’s, then the defense would go directly into calling their witnesses as the plaintiff/prosecution did. However, if the defense counsel has reserved their opening statement, they would start their own case in chief by making the statement about what they think is the theory of the cases. Whether the defendant provides their opening statement at the beginning of the case or waits until their own case in chief is a matter of strategy. In some cases, the defense wants to get their theory out in front of the jury immediately after the plaintiff/prosecution, not allowing the jury to sit through days or weeks of testimony having only one version of the facts before them. However, in other cases, because it can be very abrupt to start a case in chief by calling witnesses, the defense wants to wait and provide their whole theory directly before they start calling witnesses, so that the jury will have a fresh understanding of the witness’s testimony in context.

When the defense calls their witnesses, they are bound by the same rules that the plaintiff/prosecution had with theirs: they can only ask their witnesses direct, open-ended questions, and this time it is the plaintiff/prosecution who gets to ask the leading questions. Again, after each witness is done, the defense counsel can ask additional rebuttal questions to try to rehabilitate the witness.

After each side has presented its witnesses, each side will present their closing argument. Unlike the opening statements, which are factual and which describe what the side is planning to prove, the closing argument ties it all together. It is designed to not only summarize and highlight the facts, but to appeal to the jury’s or judge’s emotion in doing so. After the closing arguments, the judge gives the jury “jury instructions,” which is the specific rules of law that the jury is to apply to the fact that they have just heard from both sides.

The jury then goes to the jury room, by themselves, without the attorneys there, and discusses what they think the results should be. This discussion is called “jury deliberation.” If the jury reaches agreement by at least 10 out of the 12 jurors in a civil case, and unanimously in the case of a criminal case, they will tell the bailiff, who will inform the judge. All the parties are called back to the courtroom and the jury delivers its final verdict or liability (civil) or guilt (criminal). In a civil case, the jury will have a verdict form in which they will indicate the specific monetary damages that they want to award to the winning party, but in a serious criminal case, the issue of guilt is decided by the jury at that point, but the sentencing is a separate hearing held later, without the jury, and decided on by the judge.

Is that the end of the case? Not necessarily! In the next chapter we will talk about appeals to a higher court.