A T T O R N E Y A T L A W
RICHARD L. HOLCOMB
HOLCOMB LAW, LLLC
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1136 Union Mall Suite 808 Honolulu, HI 96813
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Discovery in DUI / OVUII cases
Discovery is the information that parties in litigation are supposed to exchange with one another. Court proceedings are supposed to be quests for the truth. And the parties are obligated to exchange information in order to reduce surprise. In civil cases, discovery is fairly inclusive. In other words, almost all information (except privileged information) must be divulged to the adversary. In criminal cases, however, it is somewhat more limited even thought the Constitution requires that some information must be disclosed.
In Hawaii OVUII / DUI cases, discovery is much more limited. Types of information that must be disclosed are specifically enumerated in Rule 16 of the applicable rules of Criminal or Penal Procedure. In Hawaii, discovery in petty misdemeanors, such as DUI / OVUII case, discovery is even more limited. Specifically, the Hawaii Supreme Court held, back in 1990 in a case called Marsland v. Ames, that Hawaii DUI / OVUII defendants do not get information that is readily disclosed in other states and could actually assist defendants in mounting a defense. This abhorrent opinion has been expanded to mean that DUI / OVUII defendants only receive discovery “by the grace of the court.”
Fortunately, the federal constitution requires, through the Fifth and Sixth Amendments, that prosecutors must disclose information that is “material to guilt or innocence” or that could mitigate sentencing. This has been the law since the early 1960’s and the United States Supreme Court’s opinion, Brady v. Maryland. In federal courts, this has been expanded to prohibit prosecutors from turning blind eyes and deaf ears to this type of “exculpatory” information. Indeed, prosecutors must actually investigate their cases to determine whether any of this evidence exists for “there can be no obligation [to disclose] unless prosecutors first determine whether the duty exists.” It also includes “impeachment” evidence, which is any type of evidence that might show that a witness is not telling the truth. It is also fortunate that states have to provide this information pursuant to the Fourteenth Amendment.
Unfortunately, however, because of Marsland v. Ames, prosecutors in Hawaii do not investigate the cases at all. And, when defendants request evidence that is clearly required to be disclosed pursuant to the federal constitution, the District Courts routinely refuse to require the disclosure. In fact, at least one judge has stated on the record that Marsland v. Ames created an exception to Brady in Hawaii DUI / OVUII cases. And, remarkably, the Prosecuting Attorney for the Island of Hawaii wrote a public record requesting that the Office of Disciplinary Counsel decline to amend the ethical obligations of Hawaii prosecutors to further comply with Brady. The reasoning was that if Brady were actually implemented in Hawaii, prosecutors would be forced to disclose more information than they currently do.
To anyone with even cursory knowledge of the law, this state of affairs is nothing short of unbelievable. Obviously, state courts cannot overturn the United States Supreme Court. Yet, that is exactly how Hawaii courts are interpreting Marsland. Indeed, Marsland says that the lower courts do not have “jurisdiction” (or the power) to order the disclosure of evidence that is specifically enumerated in Marsland. It makes no exception to when that evidence could be exculpatory and show that a Defendant is actually innocent of the crime!
This fundamentally unconstitutional procedure should not go unchallenged. Unfortunately, few lawyers are challenging it. In Honolulu DUI / OVUII attorney Rick Holcomb’s view, this is one of the most pressing issues facing Defendants. Mr. Holcomb litigates these issues in every single case and will continue to do so until it is changed. It may take intervention from the federal courts. However, persistence is a trait found in good lawyers and certainly characterized attorney Holcomb. You must hire a qualified DUI / OVUII lawyer such as Mr. Holcomb if faced with a DUI in Honolulu courts. Your lawyer must be willing to take “your case to the mat.” If your lawyer fails to raise these issues, it may be waived forever. On the other hand, it may win your case if your lawyer properly litigates these issues and has the gumption to see it through.