§710-1064 Retraction. (1) It is a defense to a prosecution under this part that the defendant retracted the defendant's falsification:

(a) If the falsification was made in an official proceeding, in the course of the same proceeding before discovery of the falsification became known to the defendant; or

(b) If the falsification was not made in an official proceeding, before reliance upon the falsification by the person or body for whom it was intended.

(2) "In the course of the same proceeding" includes separate hearings at separate stages of the same official or administrative proceeding but does not include any stage of the proceeding after the close of the evidence. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §710-1064

Previous Hawaii law contained no provision or case dealing with the problems of retraction. The common-law rule is that while retraction may be used to show inadvertence in making the statement, perjury once committed cannot be purged even by a correction during the same hearing.[1]

The rationale underlying this section is that it is socially desirable to keep the door open to a defense as an incentive for a witness to correct the witness' misstatement and tell the truth before the end of the proceeding.

[In the Proposed Draft, subsection (2) provided: "Statements made in separate hearings at separate stages of the same official or administrative proceeding shall be deemed to have been made in the course of the same proceeding." The Commentary herein is based on the Proposed Draft.]

Subsection (1)(a) requires that, if the falsification was made in a proceeding, the retraction must be made in the course of the same proceeding. Subsection (2) ensures that the phrase "in the course of the same proceeding" will be sufficiently broadly defined to encompass hearings at separate stages of a proceeding. Perjury committed at a preliminary hearing, for example, could be offset by retraction at the subsequent trial. Also, the retraction must be made before discovery of the falsification becomes known to the actor. This requirement is intended to deny the benefits of retraction to the person whose falsification has already been discovered and who, knowing the discovery, seeks to avoid liability by retraction. The necessity for so providing is the danger that otherwise a liberal retraction defense will encourage falsification. In discussing a claim that retraction even after discovery should constitute a defense, the United States Supreme Court said:

The argument overlooks the tendency of such a view to encourage false swearing in the belief that if the falsity be not discovered before the end of the hearing it will have its intended effect, but, if discovered, the witness may purge himself of crime by resuming his role as witness and substituting the truth for his previous falsehood.2

The language in subsection (1)(a) allows retraction while avoiding this problem.

Subsection (1)(b) deals with falsification not made in a proceeding. Here, the test of "reliance" is used in determining whether any harm has occurred. It is difficult to see a point in punishing the actor where no State agency or employee has relied upon the falsification in ordering State action or in disbursing State funds.

SUPPLEMENTAL COMMENTARY ON §710-1064

The Code as adopted by the legislature differs from the Proposed Draft in the wording of subsection (2). The Proposed Draft had provided that statements made in separate hearings at separate stages of the same official or administrative proceeding shall be deemed to be made in the course of the same proceeding. The legislature felt that as a defense, that proposal may provide too many avenues to avoid prosecution for perjury or any other related offense. Conference Committee Report No. 2 (1972). Thus, subsection (2) now states that "in the course of the same proceeding" includes separate hearings at separate stages of the same official or administrative proceeding, but does not include any stage of the proceeding after the close of the evidence.

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§710-1064 Commentary:

1. Perkins, Criminal Law 392 (1957); see United States v. Norris, 300 U.S. 564 (1937).

2. United States v. Norris, supra at 574.