§710-1068 Irregularities no defense. It is not a defense to a prosecution under this part:

(1) That the defendant was not competent, for reasons other than lack of penal responsibility, to make the false statement alleged;

(2) That the statement was inadmissible under the law of evidence;

(3) That the oath was administered or taken in an irregular manner; or

(4) That the person administering the oath lacked authority to do so, if the taking of the oath was required or authorized by law. [L 1972, c 9, pt of §1]

Revision Note

In paragraphs (1) and (2), "or" deleted pursuant to §23G-15.

COMMENTARY ON §710-1068

This section precludes certain defenses which might be raised by a defendant in a prosecution under a section in this part. The same result would probably be reached by court interpretation; however, to avoid confusion this section deals with these defenses specifically.

Subsection (1) precludes a defense based on the incompetency of a defendant to give certain testimony. This subsection does not apply where the incompetency is based on a complete lack of penal responsibility (i.e., the defenses to penal liability provided by chapter 704.).

Subsection (2) precludes a defense based on the inadmissibility, under the rules of evidence, of the false testimony. For example, a defendant in a perjury prosecution could not claim that, because a correct application of the rules of evidence would have precluded the defendant's testimony as being hearsay or irrelevant, the defendant is not guilty of the falsification offense. This subsection follows logically from the definition of "materially false statement" in §710-1000(9), which separates "materiality" from "admissibility." "These provisions are based on the same basic principle that once a person's testimony is admitted he cannot excuse his perjury on the ground that the testimony was subject to objection and should have been excluded in the first instance."[1]

Subsection (3) states the general rule that irregularities in the administration of the oath are not a defense to falsification under oath.

Section[s 710-1060, 1061, and 1062] deal with statements under oath or affirmation. The guiding principle is that when the community commands or authorizes certain statements to be made with special formality or on notice of special sanction, the seriousness of the demand for honesty is sufficiently evident to warrant application of criminal sanctions. Oath, affirmation for those with religious or other scruples against oaths, or--under Section [710-1000(10)]--notice that the state means to apply criminal penalties to misstatements, should suffice. Technical irregularities in the administration of the oath are of no concern to the defendant, as we have expressly provided in subsection (3).[2]

Subsection (4) "is designed to deal with a situation where the oath was taken as required by law, but was administered by a person who lacked authority to do so,"[3] such as a notary whose commission expired. The Code precludes a defense to falsification under such circumstances.

Previous Hawaii statutory law was silent on the subjects covered in this section. The case law has not dealt with the subjects covered by subsections (1) and (2), is in accord with subsection (3),[4] and is, in an old case, contrary to subsection (4).5 The Code, in this section, represents an addition to the law and a slight modification of an old decision.

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§710-1068 Commentary:

1. Prop. Mich. Rev. Cr. Code, comments at 406.

2. M.P.C., Tentative Draft No. 6, comments at 127 (1957).

3. Prop. Mich. Rev. Cr. Code, comments at 406.

4. Territory v. Kawano, 20 Haw. 469 (1911).

5. The King v. Papa, 1 Haw. 346 (1855).