§710-1065  Inconsistent statements. 
(1)  Where a person has made inconsistent statements, each of which if made
with the requisite state of mind and under the requisite circumstances would
constitute an offense specified in this part, and both statements have been
made within the period of the statute of limitations, the prosecution may
proceed by setting forth the inconsistent statements in a single count alleging
in the alternative that one or the other was false and not believed by the
defendant.  In such case it shall not be necessary for the prosecution to prove
which statement was false; it shall only be necessary for the prosecution to
prove:



(a) That one or the other was false and not believed
by the defendant to be true; and



(b) The attendant circumstances and states of mind
necessary to constitute each statement, if false, as an offense.



(2)  The most serious offense of which a person
may be convicted in such an instance shall be determined by hypothetically
assuming each statement to be false.  If offenses of different classes or
grades would be established by the making of the two statements, the person may
only be convicted of the lesser class or grade. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §710-1065



 



  At common law, no conviction for perjury could be based upon
two contradictory sworn statements, even where one of them was obviously
intentionally false, unless the prosecution could prove which was the false
statement.[1]  The common-law rule has suffered much criticism for its apparent
logical inconsistency.[2]  Moreover, many recent code revisions have rejected
the common-law rule.[3]



  Accordingly, the Code adopts §710-1065, allowing prosecution
on the basis of the inconsistent statements alone, provided that the requisite
circumstances and culpability are also proved.  The unwitting maker of
contradictory statements will be protected by the requirement that the
attendant circumstances and requisite state of mind be proved with regard to
each statement.  Note also that where two contradictory statements carry
different sanctions, the declarant may only be convicted of the lesser offense
under this section.



  Previous Hawaii law contained no specific provisions for
inconsistent statements, nor are there any reported Hawaii cases on this point.



 



__________



§710-1065 Commentary:



 



1.  Regina v. Hughes, 1 Car. & K. 519, 527, 174 Eng. Rep.
919, 923 (1844); see generally Comment, 53 Mich. L. Rev. 1165 (1955); Perkins,
Criminal Law 390 (1957).



 



2.  See Young v. United States, 212 F.2d 236, 241, 994 U.S.
App. D.C. 54 (1954), cert. denied, 347 U.S. 1015 (1954); United States v.
Buckner, 118 F.2d 468 (2d Cir. 1941); A.B.A. Commission on Organized Crime
Report, 50-52 (1951).



 



3.  M.P.C. §241.1(5); Ill. Cr. Code §32-2(b); N.Y.R.P.L.
§210.20; Prop. Del. Cr. Code §724; Prop. Mich. Rev. Cr. Code §4915.