There is no real qualitative distinction between the testimony found improper in Vliet and our other caselaw, however, with testimony that a driver was "intoxicated." As recently reaffirmed in State v. Ikimaka, 147 Hawai‘i 207, 465 P.3d 654 (2020) : Officer Hsu's testimony on Ikimaka's intent and knowledge was [ ] impermissible because it expressed a legal conclusion as to Ikimaka's state of mind.
Accordingly, when a prosecutor adduces evidence of or comments on a defendant's pre-arrest silence at least as of the time of detention, they have committed prosecutorial misconduct. See id.; accord State v. Ikimaka, 147 Hawai'i 207, 220, 465 P.3d 654, 667 (2020) (stating that a prosecutor making "even one reference," let alone "three references in quick succession" to defendant's pre-arrest silence was "improper"); State v. Pada, CAAP-19-0000680, 2021 WL 1156564, at *7 (Haw. App. Mar. 25, 2021) (SDO) ("[W]e conclude that the State violated Pada's right to remain silent, by eliciting during cross-examination [testimony about his pre-arrest silence], and by commenting on this information during the State's closing argument.").