Having determined that jurisdiction exists to consider Defendant's challenge of findings concerning dangerousness, it is to be noted that the burden of proof required for commitment where a defendant is acquitted by reason of mental disease, disorder, or defect is a preponderance of the evidence. See Thompson v. Yuen, 63 Haw. 186, 188, 623 P.2d 881, 883 (1981). Based on the court's findings, there was a preponderance of the evidence, aside from the probation records, to support the conclusion that Defendant should be committed.
Id. at 368. This court came to a similar conclusion in Thompson v. Yuen, 63 Haw. 186, 623 P.2d 881 (1981), in the context of an equal protection challenge. In Thompson, we approved the following analysis:
The right of confrontation is a fundamental constitutional right of the accused. Thompson v. Yuen, 63 Haw. 186, 189, 623 P.2d 881, 884 (1981); State v. Adrian, 51 Haw. 125, 131, 453 P.2d 221, 225 (1969). But, this right is not absolute and defense counsel can waive certain aspects of the right where such waiver is considered a matter of trial tactics and procedure; Thompson v. Yuen, supra at 190, 623 P.2d at 884; State v. El'Ayache, 62 Haw. 646, 649, 618 P.2d 1142, 1144 (1980); State v. Casey, 51 Haw. 99, 100, 451 P.2d 806, 808 (1969); in which event the trial court is not required to determine whether defendant had knowingly and voluntarily waived his right.
Id. Likewise, in Thompson v. Yuen, 63 Haw. 186, 188, 623 P.2d 881, 883 (1981), this court held that an insanity acquittee could be committed on proof by a preponderance of the evidence that he or she is insane and dangerous, even though a higher burden of proof is required for civil commitments. We held:
Accordingly, HRS § 586-5.5 does not constitute a significant deprivation of a defendant's freedom of movement, requiring that he or she be afforded the greater protection of a clear and convincing standard of proof. Cf. Addington, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (holding that clear and convincing standard is required by due process in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital because civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection); Thompson v. Yuen, 63 Haw. 186, 623 P.2d 881 (1981) (holding the due process rights of one acquitted by insanity are not violated when he or she is committed on a determination of risk of danger to self or the person or property of others by a preponderance of the evidence); State v. Miller, 84 Haw. 269, 933 P.2d 606 (1997) (holding HRS § 704-411(4), which places the burden on the insanity acquittee to prove, by a preponderance of the evidence, that he or she is fit to be released, does not violate due process principles). We hold, therefore, that the legislature is not prohibited by the due process clauses from choosing the lesser burden of a preponderance of the evidence as the appropriate judicial basis for the issuance of a protective order.
We reiterate our belief that "[t]he decision whether to call witnesses in a criminal trial is normally a matter within the judgment of counsel and, accordingly, will rarely be second-guessed by judicial hindsight." State v. Onishi, 64 Haw. 62, 64, 636 P.2d 742, 744 (1981); accordThompson v. Yuen, 63 Haw. 186, 190, 623 P.2d 881, 884 (1981); State v. El'Ayache, 62 Haw. 646, 649, 618 P.2d 1142, 1144 (1980); State v. McNulty, 60 Haw. 259, 270, 588 P.2d 438, 446 (1978), cert. denied, 441 U.S. 961 (1979). Nonetheless, absent here is a foundational factual predicate upon which an informed decision whether to call a witness to testify must be based.
Defense counsel can waive certain aspects of a defendant's right of confrontation “where such waiver is considered ... a matter of trial tactics and procedure.” El'ayache, 62 Haw. at 648, 618 P.2d at 1143; Thompson v. Yuen, 63 Haw. 186, 190, 623 P.2d 881, 884 (1981). B.
Defense counsel can waive certain aspects of a defendant's right of confrontation "where such waiver is considered ... a matter of trial tactics and procedure." El'ayache, 62 Haw. at 648, 618 P.2d at 1143; Thompson v. Yuen, 63 Haw. 186, 190, 623 P.2d 881, 884 (1981). B.
State v. Oyama, 64 Haw. 187, 188, 637 P.2d 778, 779-80 (1981) (citations omitted). Accord, Thompson v. Yuen, 63 Haw. 186, 190, 623 P.2d 881, 884 (1981); State v. El'Ayache, 62 Haw. 646, 648, 618 P.2d 1142, 1143 (1980); State v. Casey, 51 Haw. 99, 101, 451 P.2d 806, 808 (1969); Territory v. Yamba, 37 Haw. 477, 478 (1947). See also State v. Richie, 88 Haw. 19, 39, 960 P.2d 1227, 1247 (1998) (trial decisions such as what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and what evidence should be introduced, are strategic and tactical decisions that should be made by defense counsel, after consultation with the client where feasible and appropriate); State v. Gomes, 93 Haw. 13, 20 n. 5, 995 P.2d 314, 321 n. 5 (2000).