§710-1064  Retraction.  (1)  It is a
defense to a prosecution under this part that the defendant retracted the
defendant's falsification:



(a) If the falsification was made in an official
proceeding, in the course of the same proceeding before discovery of the
falsification became known to the defendant; or



(b) If the falsification was not made in an official
proceeding, before reliance upon the falsification by the person or body for
whom it was intended.



(2)  "In the course of the same
proceeding" includes separate hearings at separate stages of the same
official or administrative proceeding but does not include any stage of the
proceeding after the close of the evidence. [L 1972, c 9, pt of §1; gen ch
1993]



 



COMMENTARY ON §710-1064



 



  Previous Hawaii law contained no provision or case dealing
with the problems of retraction.  The common-law rule is that while retraction
may be used to show inadvertence in making the statement, perjury once
committed cannot be purged even by a correction during the same hearing.[1]



  The rationale underlying this section is that it is socially
desirable to keep the door open to a defense as an incentive for a witness to
correct the witness' misstatement and tell the truth before the end of the
proceeding.



  [In the Proposed Draft, subsection (2) provided: 
"Statements made in separate hearings at separate stages of the same
official or administrative proceeding shall be deemed to have been made in the
course of the same proceeding."  The Commentary herein is based on the
Proposed Draft.]



  Subsection (1)(a) requires that, if the falsification was
made in a proceeding, the retraction must be made in the course of the same
proceeding.  Subsection (2) ensures that the phrase "in the course of the
same proceeding" will be sufficiently broadly defined to encompass
hearings at separate stages of a proceeding.  Perjury committed at a
preliminary hearing, for example, could be offset by retraction at the
subsequent trial.  Also, the retraction must be made before discovery of the
falsification becomes known to the actor.  This requirement is intended to deny
the benefits of retraction to the person whose falsification has already been
discovered and who, knowing the discovery, seeks to avoid liability by
retraction.  The necessity for so providing is the danger that otherwise a
liberal retraction defense will encourage falsification.  In discussing a claim
that retraction even after discovery should constitute a defense, the United
States Supreme Court said:



The argument
overlooks the tendency of such a view to encourage false swearing in the belief
that if the falsity be not discovered before the end of the hearing it will
have its intended effect, but, if discovered, the witness may purge himself of
crime by resuming his role as witness and substituting the truth for his
previous falsehood.[2]



The language in subsection (1)(a) allows retraction while
avoiding this problem.



  Subsection (1)(b) deals with falsification not made in a
proceeding.  Here, the test of "reliance" is used in determining
whether any harm has occurred.  It is difficult to see a point in punishing the
actor where no State agency or employee has relied upon the falsification in
ordering State action or in disbursing State funds.



 



SUPPLEMENTAL COMMENTARY ON §710-1064



 



  The Code as adopted by the Legislature differs from the
Proposed Draft in the wording of subsection (2).  The Proposed Draft had
provided that statements made in separate hearings at separate stages of the
same official or administrative proceeding shall be deemed to be made in the
course of the same proceeding.  The Legislature felt that as a defense, that
proposal may provide too many avenues to avoid prosecution for perjury or any
other related offense.  Conference Committee Report No. 2 (1972).  Thus,
subsection (2) now states that "in the course of the same proceeding"
includes separate hearings at separate stages of the same official or
administrative proceeding, but does not include any stage of the proceeding
after the close of the evidence.



 



__________



§710-1064 Commentary:



 



1.  Perkins, Criminal Law 392 (1957); see United States v.
Norris, 300 U.S. 564 (1937).



 



2.  United States v. Norris, supra at 574.