Opinion
NO. 9612
January 25, 1984
LUM, C.J., NAKAMURA, PADGETT, HAYASHI AND WAKATSUKI, JJ.
Peter Van Name Esser, Deputy Prosecuting Attorney, for petitioner.
Walter G. Chuck for respondent Salz.
Mark R. Zenger, Deputy Public Defender, for respondent Siaosi.
This is a petition brought by the prosecutor of the City and County of Honolulu against a district judge to prohibit him from ordering the production, by the prosecution, of statements of witnesses who testified at the preliminary hearing.
The particular proceeding complained of below had terminated before the petition was filed. The district judge has stated that the course followed in that proceeding was an extraordinary one brought on by the peculiar circumstances of that particular proceeding. He has taken the position that, in the future, once a witness has testified at a preliminary hearing, normally he will order the production of that witness' prior statement so that the defendant's counsel's cross-examination of the witness can be effective. This is in accord with the law as we have announced it in Toledo v. Lam, 67 Haw. 20, 675 P.2d 773 (1984).
Because of the recent amendment to our State Constitution permitting the State to proceed in felony cases by way of preliminary hearing and complaint in the circuit court as an alternative to grand jury indictment, we will not treat the present case as moot. However, what we have said today in Toledo v. Lam, applies equally to this case. The matter of the production of such statements is one for the discretion of the district judge and normally should be exercised in favor of the defendant. Accordingly, the petition for a writ of prohibition is denied.