§710-1066  No prosecution based on previous
denial of guilt.  No prosecution shall be brought:



(1)  Under this part, if the substance of the
defendant's false statement is the defendant's denial of guilt of an offense
for which the defendant has previously been put in jeopardy; or



(2)  For a substantive offense, the denial of which
was the basis of a former prosecution under this part. [L 1972, c 9, pt of §1;
gen ch 1993]



 



COMMENTARY ON §710-1066



 



  The basic problem with which this section attempts to deal is
concisely stated by the commentary to the Model Penal Code:



It has been
argued, nearly always unsuccessfully, that a defendant who has once been
acquitted of a substantive offense ought not to be tried for perjury committed
in defending that prosecution, at least where the perjury was as to the
"core" of guilt in the first trial.  Double jeopardy does not bar the
perjury prosecution, since the offenses are different, and honest testimony
under oath must be insisted upon even in the case of persons defending
themselves against charges of crime.  The doctrine of res judicata does not
preclude conviction, even where conviction would seem to require direct
contradiction of the acquittal of the original prosecution.[1]



The Model Penal Code goes on to admit that there is
"almost no escape from the dilemma of either giving immunity to perjury by
defendants or permitting the opportunity for abusive retrials of the original
charge."[2]



  There are, however, some constitutional grounds for barring
such prosecutions.  In one case,[3] a prosecution for false unsworn statements
to FBI agents was dismissed on the ground, among others, that it would be a
violation of due process to abandon the substantive charges against the
defendants and subsequently indict them for previously denying their complicity
therein.



  The Code takes the position that this section will serve the
worthwhile purpose of implementing the basic policy underlying our double
jeopardy prohibition by forbidding a retrial of a substantive offense through
the guise of a falsification charge and by barring a prosecution of a
substantive offense the denial of which was the subject of a former
falsification prosecution.  Both prohibitions are necessary to ensure the
desired result.  If the section were only to bar a falsification prosecution
subsequent to the prosecution of the substantive offense, there would be
nothing to prevent the State from merely prosecuting the falsification offense
first, and then the substantive offense the denial of which led to the first
prosecution.



  The section, as drafted, leaves open the possibility of
prosecuting for false statements on collateral or subsidiary issues.  The
prohibition of prosecution only runs where the substance of the alleged false
statement is a denial of guilt for an offense.



  Previous Hawaii law had no provisions dealing with this
problem, nor are there any reported Hawaii cases on this point.



 



__________



§710-1066 Commentary:



 



1.  M.P.C., Tentative Draft No. 6, comments at 122-23 (1957).



 



2.  Id.



 



3.  United States v. Stark, 131 F. Supp. 190 (D.Md. 1955).