The new application of the old prosecutorial-misconduct standard (and prosecutors can’t call defendants liars anymore)

 State v. Hirata (HSC October 31, 2022)

Background. Chanse Hirata was charged with continuous sexual assault of a minor under the age of 14. HRS § 707-733.6. At trial, the prosecutor, Honolulu DPA Kristen Yamamoto, told the jury in her opening statement that there was no DNA evidence, no surveillance videos, and no eyewitnesses “But you will hear from the one person that lived through all of this[,]” the complaining witness.

 

The complaining witness, her parents, two police officers, a doctor who examined the complaining witness, and an expert in the “dynamics of child sexual abuse” testified for the prosecution. The defense called Hirata, his parents, and his girlfriend.

 

The trial court, with the Hon. Judge Catherine Remigio presiding, instructed the jury on credibility with Hawai'i Standard Jury Instructions Criminal (HAWJIC) 3.09:

 

It is your exclusive right to determine and to what extent a witness should be believed and to give weight to his or her testimony accordingly. In evaluating the weight and credibility of a witness’s testimony, you may consider the witness’s appearance and demeanor; the witness’s manner of testifying; the witness’s intelligence; the witness’s candor or frankness, or lack thereof; the witness’s interest, if any, in the result of this case; the witness’s relation, if any, to a party; the witness’s temper, felling, or bias, if any has been shown; the witness’s means and opportunity of acquiring information; the probability or improbability of the witness’s testimony; the extent to which the witness is supported or contradicted by other evidence; the extent to which the witness has made contradictory statements, whether in trial or at other times; and all other circumstances surrounding the witness and bearing upon his or her credibility.

 

The family court also gave the standard instruction to treat the Defendant like any other testifying witness. HAWJIC Inst. No. 3.15.

 

In her closing argument, the prosecutor emphasized that this case came down to the complainant’s credibility. She argued that Hirata and his witnesses could not believed because they have “a motive to lie.”

 

[T]he defendant also testified, and the jury instructions say that when a defendant testifies, his credibility is to be tested in the same manner as any other witness. . . .

 

So is the defense’s story believable? We look at the same factors. They have bias. They have a motive to lie.

 

In another part of her closing, the prosecutor argued that the complainant was credible because she was brave and got emotional.

 

So let’s go through the factors of [CW]’s credibility. Her appearance, demeanor, her manner of testifying. She came here last week. You saw her. She’s 11 years old. She was nervous and understandably so. And she tried to be brave up there on the stand. She answered all of my questions. She answered all of the defense attorney’s questions. Almost three hours up there.

 

And then at the end of almost those three hours, she couldn’t be brave anymore, and you saw her when she got emotional. She broke when the defense attorney continued to call—to question her credibility and if she was making this up, and her answer to you as this really happened. It’s consistent with a child who is traumatized.

 

Hirata did not object and no curative instruction was given. The jury found Hirata guilty as charged. He was sentenced to 20 years imprisonment and appealed to the ICA, which found that the prosecutor’s argument was misconduct, but harmless misconduct and affirmed. Hirata petitioned to the HSC.

 

Reshuffling the deck when it comes to plain error and prosecutorial misconduct. The defense did not object to the two comments at issue in this appeal—the prosecutor’s statement about the CW testifying like “a child who is traumatized” and calling the defendant a liar. Because there was no objection, the plain error standard of review applies. Plain errors “seriously effect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” State v. Williams, 146 Hawai'i 62, 72, 456 P.3d 135, 145 (2020).

 

The HSC noted that prosecutorial misconduct claims are claims alleging violations of the right to a fair trial, which is indeed a fundamental right. State v. Williams, 149 Hawai'i 381, 392, 491 p.3d 592, 603 (2021); State v. Yoshino, 50 Haw. 287, 290, 439 P.2d 666, 668-669 (1968). The HSC also observed that when it comes to prosecutorial misconduct at least, there is no difference between “plain error” and “harmless error.” See State v. Riveira, 149 Hawai'i 427, 431 n. 10, 494 P.3d 1160, 1164 n. 10 (2021).

 

The three-factored prosecutorial misconduct standard does not change with or without an objection at trial. The HSC presented the same three-factors in determining prosecutorial misconduct regardless of any objection below:

 

In prosecutorial misconduct cases, then, once the defense establishes misconduct—objection or no objection—appellate review is the same: “After considering the nature of the prosecuting attorney’s conduct, promptness or lack of a curative instruction, and strength or weakness of the evidence against the defendant, a reviewing court will vacate a conviction if there is a reasonable possibility that the conduct might have affected the trial’s outcome.” Id. at 431, 494 P.3d 1164.

 

The “motive to lie” comment was prosecutorial misconduct. The HSC began with the prosecutor’s assertion that Hirata as the defendant had a “motive to lie” when he testified. The HSC held that this comment was prosecutorial misconduct. Prosecutors rely on “arguments that are uncoupled from evidence showing the defendant has a particular interest in the outcome separate from the generic interest shared by all defendants in criminal cases.” State v. Salvea, 147 Hawai'i 564, 585 n. 29, 465 P.3d 1011, 1032 n. 29 (2020). Prosecutors “cannot ask the jury to infer a defendant’s lack of credibility based solely on the fact that [they are the] defendant.” State v. Basham, 132 Hawai'i 97, 117, 319 P.3d 1105, 1125 (2014).

 

Prosecutors can’t use the word “lie” or its “derivatives” in closing. The HSC in a footnote pointed out that the prosecutor’s use of the word “lie” is misconduct. “The word’s strongly pejorative tone conveys the speaker’s subjective disapproval that the witness would taint the judicial process with dishonesty.” State v. Austin, 143 Hawai'i 18, 51, 422 P.3d 18, 51 (2018) (Pollock, J. concurring in part). The HSC warned prosecutors to “scrub lie  and its derivatives from their closing argument vocabulary.” On top of that, it did not matter that the prosecutor said motive to lie as oppose to lie. This distinction still implied the opinion had lied.

 

The problem with HAWJIC Inst. No. 3.09 after the defendant testifies. The HSC also pointed out a problem with the standard instruction. The instruction identifies factors jurors can use to assess any witness’s credibility—including the “interest, if any, in the result of the case.” Id. That would include the defendant. In this case, the prosecutor committed misconduct by telling the jury Hirata had a motive to lie because he was the party in this case. The instruction amplifies the problem. The HSC directed trial courts to strike the clause in certain cases:

 

Given the risk that HAWJIC 3.09 poses to defendants’ due process right to a fair trial, we direct trial courts to excise HAWJIC 3.09’s ‘interest, if any, in this result of this case’ clause when a defendant testifies and there’s no specific evidence to support a credibility attack other than the universal interest in the result of the case shared by all defendants.

 

Arguing that the complaining witness was “consistent with a child who is traumatized” is also misconduct. The HSC also held that the comment that the complaining witness’s testimony was “consistent with a child who is traumatized” constituted prosecutorial misconduct. According to the HSC, prosecutors have “a duty to seek justice, to play fair and square.” They cannot express personal beliefs about the evidence. See, e.g., State v. Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986). They cannot introduce new information and evidence during the closing argument. State v. Basham, 132 Hawai'i at 113, 319 P.3d at 1121. And so “expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tent to exploit the influence of the prosecutor’s office and undermine the objective detachment that should separate an attorney from the cause being argued.” State v. Salavea, 142 Hawai'i at 582, 465 P.3d at 1029.

 

In this case, the prosecutor told the jury that the complaining witness’s testimony was “consistent with a child who is traumatized” without presenting any evidence that this is consistent with a traumatized child. No witnesses testified about her mental health or psychological condition. This comment amounted to the prosecutor’s personal belief on the witness’s credibility and is unsupported by any evidence presented at trial. It also invited the jury to infer that the prosecutor had undisclosed information about her mental health that could corroborate her claim.

 

The second prong—promptness of or lack of curative instruction—does not seem to matter. The HSC noted that in this case there was no curative instruction and the prong itself “pales in comparison to that of the first and third factors[.]” The HSC explained that “curative instructions are not particularly effective.” See State v. Riveria, 149 Hawai'i at 433, 494 P.3d at 1166 (“Court instructions often serve as an unsatisfactory, ineffectual fix when prejudicial matters surface at trial”). The HSC also noted curative instructions are almost never given without an objection that factor would make it “easier in a plain error prosecutorial misconduct case” like this one. Id. It would, according to the HSC, “disincentivize” the defense from objecting. While “a strongly-worded admonition immediately following minor prosecutorial misconduct may mitigate the effect” of the misconduct, the first and third factors are primary

 

The third prong—the strength or weakness of the case—pointed away from harmlessness. The third prong requires the court to assess the strength or weakness of the evidence against the defendant. Id. at 431, 494 P.3d at 1164. If there is a reasonable possibility that the misconduct affected the outcome of the trial, it cannot be deemed harmless. Id. The HSC expanded on what that means:

 

Typically, a trial ends one of three ways: with a guilty verdict, a not guilty verdict, or a hung jury mistrial. So a prosecutor’s improper remarks affect the trial’s outcome if there’s a reasonable possibility that at least one juror might have been affected by the misconduct: it just takes one unconvinced juror to hang a jury. The reasonably possibility standard, then, is satisfied if there’s a showing that it’s reasonably possible that, absent the misconduct, a single juror would have voted differently.

 

The HSC noted that this case hinged on credibility of either the defendant or the complaining witness. The evidence was far from overwhelming and attacking credibility is seldom harmless beyond a reasonable doubt. State v. Underwood, 142 Hawai'i 317, 329, 418 P.3d 658, 670 (2018). The HSC held that neither comment was harmless and remanded the case for a new trial.

 

Chief Justice Recktenwald’s Dissent. The Chief Justice dissented because while he agreed that the prosecutor’s comment about Hirata having a “motive to lie,” the single reference had minimal impact on the outcome of the trial. The CJ also distinguished between the argument that a person has the motive to lie as opposed to calling the person a liar and relied on cases from other jurisdictions to support the distinction. See State v. King, 288 Kan. 333, 352-353, 204 P.3d 585, 598 (Kan. 2009). Moreover, the CJ took issue with the majority’s direction to have trial courts excise the clause from the HAWJIC instruction. For him “[w]e should refer this issue to our Standing Committee on Pattern Criminal Jury Instructions, which can consider other possible revisions to the instructions, evaluate approaches taken by other jurisdictions, and importantly, guard against unforeseen consequences.”

 

He also disagreed that the prosecutor’s argument that the complaining witness testified like a “child who is traumatized” was misconduct. The prosecution had an expert witness testify about the general dynamics of child abuse such as tunnel memory, delayed reporting, and failure to recall the exact number of instances of abuse. That allowed a fair basis for the prosecutor’s comment. Justice Nakayama joined.