The rule prohibiting the prosecution from commenting on a defendant's failure to testify is a bedrock principle of the Hawai'i Constitution: article I, section 10 provides that "[n]o person shall . . . be compelled in any criminal case to be a witness against oneself." See Kaneshiro v. Belisario, 51 Haw. 649, 651-52, 466 P.2d 452, 454 (1970) ("[I]t is clear that United States Supreme Court decisions and Hawai'i law prohibit prosecutorial comment on the accused's assertion of the right [against self-incrimination] in a criminal proceeding . . ." (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)).).
We note that, in Almeida v. Correa, 51 Haw. 594, 465 P.2d 564 (1970), we held that the exhibition of a child before the jury in a paternity case to show resemblance as proof of paternity is inadmissible demonstrative evidence because there is no probative value. See also Kaneshiro v. Belisario, 51 Haw. 649, 650, 466 P.2d 452, 453 (1970) (following Almeida with respect to the "exhibition of a child" issue). Constitutional challenges to the "exhibition" of human beings in criminal trials have generally arisen in the context of the Fifth Amendment to the United States Constitution.
In Malloy v. Hogan, 378 U.S. 1, 8 (1964), the Supreme Court said "[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement β the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." Thus in Kaneshiro v. Belisario, 51 Haw. 649, 654, 466 P.2d 452, 455 (1970), we held "that in a civil proceeding the assertion of defendant's right against self-incrimination is protected by the state and federal constitutions and shall not be the subject of any comment or adverse inference by the opposing party." The Supreme Court, however, has since ruled "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment `does not preclude the inference where the privilege is claimed by a party to a civil cause.' 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961).
The Fifth Amendment of the United States Constitution prohibits either adverse comment by the prosecutor on the accused's silence or instructions by the court that such silence is evidence of guilt. Lakeside v. Oregon, 435 U.S. 333 (1978); Griffin v. California, 380 U.S. 609 (1965); Kaneshiro v. Belisario, 51 Haw. 649, 466 P.2d 452 (1970). However, commenting on a defendant's silence, which is highly disfavored, will not automatically require reversal.
Our State Constitution in Art. I, Β§ 8 likewise assures this right in identical language. As stated in part in Kaneshiro v. Belisario, 51 Haw. 649, 466 P.2d 452 (1970), at pages 652-653, where we quoted from Tehan v. Shott, 382 U.S. 406, 415-416 (1966), "[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution `shoulder the entire load.' * * * [T]he federal privilege against self-incrimination reflects the Constitution's concern for the essential values represented by `our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life,"' * * *." (Footnote omitted)
It is therefore clear, since this is not a criminal proceeding, that the summoning of Rick to the stand to invoke his privilege against self-incrimination did not violate his constitutional rights. With regard to the allegation that comment by the prosecution on defendant's refusal to testify is a violation of the fifth amendment's privilege against self-incrimination, Rick cites Kaneshiro v. Belisario, 51 Haw. 649, 466 P.2d 452, 455 (1970). In Kaneshiro, the court held that a defendant's assertion of the privilege against self-incrimination in a paternity proceeding is protected by the state and federal constitutions and may not be the subject of any comment or adverse inference by the opposing party.
It is therefore clear, since this is not a criminal proceeding, that the summoning of Rick to the stand to invoke his privilege against self-incrimination did not violate his constitutional rights.With regard to the allegation that comment by the prosecution on defendant's refusal to testify is a violation of the fifth amendment's privilege against self-incrimination, Rick cites Kaneshiro v. Belisario, 51 Haw. 649, 466 P.2d 452, 455 (1970). In Kaneshiro, the court held that a defendant's assertion of the privilege against self-incrimination in a paternity proceeding is protected by the state and federal constitutions and may not be the subject of any comment or adverse inference by the opposing party.
It is therefore clear, since this is not a criminal proceeding, that the summoning of Rick to the stand to invoke his privilege against self-incrimination did not violate his constitutional rights. With regard to the allegation that comment by the prosecution on defendant's refusal to testify is a violation of the fifth amendment's privilege against self-incrimination, Rick cites Kaneshiro v. Belisario, 51 Haw. 649, 466 P.2d 452, 455 (1970). In Kaneshiro, the court held that a defendant's assertion of the privilege against self-incrimination in a paternity proceeding is protected by the state and federal constitutions and may not be the subject of any comment or adverse inference by the opposing party.
Eldridge v. Herman, supra. Defendant relies on State v. District Court, 426 P.2d 431 (Wyo. 1967), and Kaneshiro v. Belisario, 51 Haw. 649, 466 P.2d 452 (1970), both of which support his position. But these cases were decided before the U.S. Supreme Court addressed the issue in Baxter, supra.
The question on appeal is whether the remarks were improper and, if so, whether their effect was harmful. State v. Melear, 63 Haw. 488, 630 P.2d 619 (1981); State v. Padilla, 57 Haw. 150, 552 P.2d 357 (1976); Kaneshiro v. Belisario, 51 Haw. 649, 466 P.2d 452 (1970).