§710-1066 No prosecution based on previous denial of guilt. No prosecution shall be brought:

(1) Under this part, if the substance of the defendant's false statement is the defendant's denial of guilt of an offense for which the defendant has previously been put in jeopardy; or

(2) For a substantive offense, the denial of which was the basis of a former prosecution under this part. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §710-1066

The basic problem with which this section attempts to deal is concisely stated by the commentary to the Model Penal Code:

It has been argued, nearly always unsuccessfully, that a defendant who has once been acquitted of a substantive offense ought not to be tried for perjury committed in defending that prosecution, at least where the perjury was as to the "core" of guilt in the first trial. Double jeopardy does not bar the perjury prosecution, since the offenses are different, and honest testimony under oath must be insisted upon even in the case of persons defending themselves against charges of crime. The doctrine of res judicata does not preclude conviction, even where conviction would seem to require direct contradiction of the acquittal of the original prosecution.[1]

The Model Penal Code goes on to admit that there is "almost no escape from the dilemma of either giving immunity to perjury by defendants or permitting the opportunity for abusive retrials of the original charge."[2]

There are, however, some constitutional grounds for barring such prosecutions. In one case,3 a prosecution for false unsworn statements to FBI agents was dismissed on the ground, among others, that it would be a violation of due process to abandon the substantive charges against the defendants and subsequently indict them for previously denying their complicity therein.

The Code takes the position that this section will serve the worthwhile purpose of implementing the basic policy underlying our double jeopardy prohibition by forbidding a retrial of a substantive offense through the guise of a falsification charge and by barring a prosecution of a substantive offense the denial of which was the subject of a former falsification prosecution. Both prohibitions are necessary to ensure the desired result. If the section were only to bar a falsification prosecution subsequent to the prosecution of the substantive offense, there would be nothing to prevent the State from merely prosecuting the falsification offense first, and then the substantive offense the denial of which led to the first prosecution.

The section, as drafted, leaves open the possibility of prosecuting for false statements on collateral or subsidiary issues. The prohibition of prosecution only runs where the substance of the alleged false statement is a denial of guilt for an offense.

Previous Hawaii law had no provisions dealing with this problem, nor are there any reported Hawaii cases on this point.

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§710-1066 Commentary:

1. M.P.C., Tentative Draft No. 6, comments at 122-23 (1957).

2. Id.

3. United States v. Stark, 131 F. Supp. 190 (D.Md. 1955).