§701-115 Defenses. (1) A defense is a fact or set of facts which negatives penal liability.

(2) No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented. If such evidence is presented, then:

(a) If the defense is not an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant's guilt; or

(b) If the defense is an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in light of any contrary prosecution evidence, proves by a preponderance of the evidence the specified fact or facts which negative penal liability.

(3) A defense is an affirmative defense if:

(a) It is specifically so designated by the Code or another statute; or

(b) If the Code or another statute plainly requires the defendant to prove the defense by a preponderance of the evidence. [L 1972, c 9, pt of §1; am L 1973, c 136, §2(b)]

COMMENTARY ON §701-115

The Code establishes two classes of defenses. As to both, it places an initial burden on the defendant to come forward with some credible evidence of facts constituting the defense, unless, of course, those facts are supplied by the prosecution's witnesses.

As to the burden of persuasion, two different rules are codified. In the case of defenses which are not affirmative, the defendant need only raise a reasonable doubt as to the defendant's guilt. The other side of the coin is that the prosecution must prove beyond a reasonable doubt facts negativing the defense. The prosecution in fact does this when the jury believes its case and disbelieves the defense.

In the case of affirmative defenses, the burden on the defendant increases. Now the defendant must prove by a preponderance of the evidence facts which negative the defendant's penal liability. Subsection (4) defines "affirmative defense," making it clear that this type of defense needs special legislative prescription. Unless the legislature has made a particular defense affirmative, the defendant's burden is only to raise a reasonable doubt.

Case Notes

Provisions of this section and §702-237, requiring defendant to prove entrapment by preponderance of the evidence, do not violate due process. 58 H. 234, 566 P.2d 1370 (1977).

Provisions on entrapment not inconsistent with §702-205. 58 H. 479, 572 P.2d 159 (1977).

Requirement that defendant establish entrapment is not violation of due process. 58 H. 479, 572 P.2d 159 (1977).

Justification is not an affirmative defense and prosecution has burden of disproving it once evidence of justification has been adduced. 60 H. 259, 588 P.2d 438 (1978).

Due process violation where jury may have reached verdict by improperly shifting burden of proof from prosecution to defense by concluding that defendant had not established defendant's claim of extreme mental or emotional distress before considering whether prosecution had disproved that defense beyond a reasonable doubt. 80 H. 172, 907 P.2d 758 (1995).

Trial courts must specifically instruct juries, where the record so warrants, that the burden is upon the prosecution to prove beyond a reasonable doubt that the defendant was not ignorant or mistaken as to a fact that negates the state of mind required to establish an element of the charged offense or offenses. 107 H. 239, 112 P.3d 725 (2005).

Rule of lenity required the construction, under the specific facts of the case, of §§329-121, 329-122, and 329-125 against the government, as there was an irreconcilable inconsistency between the authorized transportation of medical marijuana under §329-121, and the prohibition on transport of medical marijuana through "any ... place open to the public" under [§329-122(c)(2)(E)]; thus, under subsection (2)(b), petitioner was entitled to an acquittal because petitioner's evidence, when considered in light of any contrary prosecution evidence proved by a preponderance of the evidence the specified fact or facts with negatived penal liability. 129 H. 397, 301 P.3d 607 (2013).

Synthesizing and applying this section, its commentary, and the Hawaii supreme court's ruling in State v. Malaega in the context of this case, in the case of an unrequested mistake of fact jury instruction denominated as error for the first time on appeal, subsection (2) and its commentary place the burden of production on the defendant to present [("credible")] evidence of the specified facts going to the defense. Further, failure to give the mistake of fact jury instruction under these circumstances constitutes plain error; moreover, where the omission of the instruction constitutes plain error, it shall be a basis for reversal of the defendant's conviction only if an examination of the record as a whole reveals that the error was not harmless beyond a reasonable doubt. 130 H. 196, 307 P.3d 1142 (2013).

Defendant's claim of justification, in defense against prosecution for terroristic threatening, was established regardless of whether or not defendant used deadly force. 1 H. App. 167, 616 P.2d 229 (1980).

Court's instruction that defendant had the burden of proving self defense by a preponderance of the evidence was plain error which affected substantial rights of the defendant. 1 H. App. 214, 617 P.2d 573 (1980).

Since exception to animal nuisance offense, if proved, would negative defendant's penal liability for animal nuisance, it constituted a defense; because defendant offered absolutely no evidence at trial, and the facts constituting defendant's defense were not supplied by the State, the State was not required to present any evidence disproving defendant's defense beyond a reasonable doubt. 10 H. App. 353, 873 P.2d 110 (1994).

Defense that someone other than defendant confessed to the offense and alibi defense, i.e., evidence that defendant was not present at the time of the crime, are not affirmative defenses. 10 H. App. 448, 877 P.2d 891 (1994).

Defendants did not prove affirmative defense of entrapment under §702-237(1)(b) by preponderance of evidence as required by subsection (2)(b); officer's conduct merely provided defendants with opportunity to commit offense of promoting a dangerous drug in the first degree. 82 H. 499 (App.), 923 P.2d 916 (1996).

Proof of self-insurance under §431:10C-105 is a "defense" within the meaning of this section. 90 H. 130 (App.), 976 P.2d 444 (1999).