§701-112  Former prosecution in another
jurisdiction:  when a bar.  When behavior constitutes an offense within the
concurrent jurisdiction of this State and of the United States or another
state, a prosecution in any such other jurisdiction is a bar to a subsequent
prosecution in this State under any of the following circumstances:



(1)  The first prosecution resulted in an acquittal
which has not subsequently been set aside or in a conviction as defined in
section 701-110(3), and the subsequent prosecution is based on the same
conduct, unless:



(a)  The offense for which the defendant is
subsequently prosecuted requires proof of a fact not required by the former
offense and the law defining each of the offenses is intended to prevent a
substantially different harm or evil; or



(b)  The second offense was not consummated
when the former trial began.



(2)  The former prosecution was terminated, after the
information was filed or the indictment found, by an acquittal or by a final
order or judgment for the defendant which has not been set aside, reversed, or
vacated and which acquittal, final order, or judgment necessarily required a
determination inconsistent with a fact which must be established for conviction
of the offense for which the defendant is subsequently prosecuted.



(3)  The former prosecution was improperly terminated,
as improper termination is defined in section 701-110(4), and the subsequent
prosecution is for an offense of which the defendant could have been convicted
had the former prosecution not been improperly terminated. [L 1972, c 9, pt of
§1]



 



COMMENTARY ON §701-112



 



  If the defendant has engaged in only one course of penal
conduct, it seems very unjust to permit the defendant to be prosecuted twice
simply because of the fortuitous circumstance that the defendant's behavior
constitutes an offense in more than one jurisdiction.  It is increasingly true
that the federal law has made criminal various acts which are also criminal
under this Code.  If the federal prosecution is conducted first, it is unseemly
as well as unfair for a state prosecution to follow, perhaps adding another
penalty to the penalty set by federal law for the same act.  Of course, a
principle that there should be only one prosecution will require close
cooperation between the authorities in both jurisdictions to assure that
justice is done.



  Subsection (1) bars a prosecution in Hawaii for the same
conduct which has already resulted in an acquittal or a conviction in another
jurisdiction unless the offense for which the defendant is subsequently
prosecuted requires proof of a fact not required by the former offense and the
law defining each of the offenses is intended to prevent a substantially
different harm or evil, or unless the second offense was not completed when the
former trial began.



  Subsection (2) gives a collateral estoppel effect similar to
that given in §701-111(2), and subsection (3) has the same effect as
§701-111(3).



  The proposed section differs from previous law.  In Territory
v. Lii,[1] it was held that the conviction of a person under the federal law
for violation of the Mann Act did not preclude the person's conviction for
procuring and pimping under Hawaii law.[2]  The court looked upon the
defendant's conduct as constituting two separate offenses and stated that:



The Fifth Amendment, having for its objective that no person
shall be subjected to punishment for the same offense more than once, does not
prohibit presentation of evidence in another and separate trial for a different
offense.  Neither does the Amendment nor our own statute prohibit successive
prosecutions if the alleged wrongful act constitutes separate offenses in
violation of two separate and distinct criminal statutes.[3]



Although the Lii case accords with the Constitution, it seems
purely formalistic and harsh to subject a defendant to multiple prosecution
simply because two jurisdictions have determined that the defendant's behavior
constitutes an offense.



 



Case Notes



 



  A Uniform Code of Military Justice Article 15 nonjudicial
proceeding does not amount to a criminal prosecution, and thus, could not
result in a "judgment of conviction" pursuant to §701-110(3); thus,
none of the circumstances barring state prosecution outlined in this section
were met.  100 H. 132, 58 P.3d 643.



 



__________



§701-112 Commentary:



 



1.  39 Haw. 574 (1952).



 



2.  H.R.S. §768-56.



 



3.  39 Haw. 574, 581 (1952).