Anytime the State wants to use the defendant's statements against them, there has to be a pretrial voluntariness hearing.

 State v. Tolentino (HSC June 30, 2026). Henry Tolentino was pulled over for speeding. He was ordered out of the car. An officer drew his gun and ordered him to get on the ground. Tolentino ran away. An officer chased him, caught up to him, and there was a struggle. The officer said that Tolentino kicked and punched him. And then the officer punched Tolentino three but “no more than five” times in the face. As they were fighting a second officer ran into them and all three fell to the ground. They cuffed Tolentino and as they were raising him to his feet he said, “I’m sorry. I was just trying to get a Zip Pac.”

The prosecution charged Tolentino with assault of a law enforcement officer in the first degree. Before trial, Tolentino moved as a motion in limine to exclude his statement about the Zip Pac. The defense did not move to suppress and the prosecution did not ask for a voluntariness hearing. The motion in limine was denied. The defense asked for an evidentiary hearing, which was denied. The statement came in against Tolentino at trial and the prosecutor used his statement during the closing arguments. The jury found him guilty of the included offense of assault of a law enforcement officer in the 2d degree. Tolentino appealed. The ICA affirmed. The ICA determined that the trial court determined voluntariness without a hearing and out of the presence of the jury. Tolentino petitioned for cert.

 

An evidentiary hearing is the only way to determine if the defendant’s statement is voluntary and thus admissible. “Incriminating statements, to be admissible in evidence, must be voluntary.” Territory v. Young, 37 Haw. 189, 192 (Terr. 1945). The Hawaii Constitution also ensures that defendants retain their “free and unconstrained choice” to speak. State v. Baker, 147 Hawaii 413, 422, 465 P.3d 860, 869 (2020). And so, to ensure that a statement is voluntary, due process under Haw. Const. Art. I, Sec. 5, and HRS § 621-26 require a hearing to determine if the statement was voluntary.

 

. . . otherwise it violates Due Process. The HSC here examined the foundation for this requirement under the due process clause. It held that when the trial court does not conduct an evidentiary hearing, two due process violations occur. First, “there is a substantial violation if the statement was in fact involuntary.” State v. Eli, 126 Hawaii 510, 520 n. 17, 273 P.3d 1196, 1206 n. 17 (2012). Second, denying an evidentiary hearing violates procedural due process. See State v. Green, 51 Haw. 260, 264, 457 P.2d 505, 508 (1969).

 

The HSC clarified that the evidentiary hearing is a constitutional requirement. “Skipping a voluntariness hearing snips process and deprives the defendant of these protections.” And so, the HSC made it plain:

 

We clarify that a reliable judicial determination of voluntariness means a pretrial evidentiary proceeding where facts are developed, tested, and found.

 

Perfunctory review, prosecutorial representations, and hearsay analyses do not constitute a “reliable determination.” Due process demands a hearing with three essential pieces: under oath testimony, cross-examination, and evidence-based findings.

 

. . . and the additional protection in the right against self-incrimination. The HSC also linked the voluntariness hearing requirement to the right against self-incrimination in Art. I, Sec. 10. Most statements arise from police encounters. And regardless of custody or not, interrogation or otherwise, the inquiry at a voluntariness hearing is whether the defendant spoke voluntarily given all the circumstances. A proffer will not do.

 

. . . and HRS § 621-26. The statute also “reinforces” the requirement. “No confession shall be received in evidence unless it is first made to appear to the judge before whom the case is being tried that the confession was in fact voluntarily made.” HRS § 621-26. This language carries requirements distinct from the constitutional ones going back to the days of the Hawaiian Kingdom. Rex v. Paakaula, 3 Haw. 30, 39 (King. 1867).

 

The HSC turned to the record and held that the circuit court erred in admitting Tolentino’s statement without first conducting an evidentiary hearing before trial violated the due process clause, the right against self-incrimination, and HRS § 621-26.

 

Nor was it harmless. Harmless error requires the prosecution to show no “reasonable possibility that the error might have affected the outcome.” State v. Aplaca, 96 Hawaii 17, 26, 25 P.3d 792, 801 (2001). A different outcome includes a hung jury. “The reasonable possibility standard, then, is satisfied if there’s a showing that it’s reasonably possible that, . . . a single juror would have voted differently.” State v. Hirata, 152 Hawaii 27, 33, 520 P.3d 225, 231 (2022). The error here was not harmless.

 

According to the HSC, Tolentino’s statement might have contributed to his conviction of recklessly causing bodily injury to a law enforcement officer. HRS § 707-712.6. “An apology’s consciousness of guilt quality is potent.” And it was highlighted by the prosecution at closing. The error is not harmless.

 

The remedy is a new trial. The HSC held that the remedy for violating Art. I, Secs. 5, 10, and 14 and HRS § 621-26 require a new trial. This was a point of contention with the dissent.

 

Justice Ginoza’s dissent. Justice Ginoza dissented about the remedy. She agreed that an evidentiary hearing is required, that the circuit court erred, and that the error was not harmless. But she wanted to vacate and remand back to determine the voluntariness of the statement. Only if the statement was found involuntary, would there be a new trial. See Jackson v. Denno, 378 U.S. 368, 395 (1964). Judge Kimura joined.