§710-1065 Inconsistent statements. (1) Where a person has made inconsistent statements, each of which if made with the requisite state of mind and under the requisite circumstances would constitute an offense specified in this part, and both statements have been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false; it shall only be necessary for the prosecution to prove:

(a) That one or the other was false and not believed by the defendant to be true; and

(b) The attendant circumstances and states of mind necessary to constitute each statement, if false, as an offense.

(2) The most serious offense of which a person may be convicted in such an instance shall be determined by hypothetically assuming each statement to be false. If offenses of different classes or grades would be established by the making of the two statements, the person may only be convicted of the lesser class or grade. [L 1972, c 9, pt of §1]

COMMENTARY ON §710-1065

At common law, no conviction for perjury could be based upon two contradictory sworn statements, even where one of them was obviously intentionally false, unless the prosecution could prove which was the false statement.[1] The common-law rule has suffered much criticism for its apparent logical inconsistency.[2] Moreover, many recent code revisions have rejected the common-law rule.3

Accordingly, the Code adopts §710-1065, allowing prosecution on the basis of the inconsistent statements alone, provided that the requisite circumstances and culpability are also proved. The unwitting maker of contradictory statements will be protected by the requirement that the attendant circumstances and requisite state of mind be proved with regard to each statement. Note also that where two contradictory statements carry different sanctions, the declarant may only be convicted of the lesser offense under this section.

Previous Hawaii law contained no specific provisions for inconsistent statements, nor are there any reported Hawaii cases on this point.

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§710-1065 Commentary:

1. Regina v. Hughes, 1 Car. & K. 519, 527, 174 Eng. Rep. 919, 923 (1844); see generally Comment, 53 Mich. L. Rev. 1165 (1955); Perkins, Criminal Law 390 (1957).

2. See Young v. United States, 212 F.2d 236, 241, 994 U.S. App. D.C. 54 (1954), cert. denied, 347 U.S. 1015 (1954); United States v. Buckner, 118 F.2d 468 (2d Cir. 1941); A.B.A. Commission on Organized Crime Report, 50-52 (1951).

3. M.P.C. §241.1(5); Ill. Cr. Code §32-2(b); N.Y.R.P.L. §210.20; Prop. Del. Cr. Code §724; Prop. Mich. Rev. Cr. Code §4915.