§710-1068  Irregularities no defense. 
It is not a defense to a prosecution under this part:



(1)  That the defendant was not competent, for reasons
other than lack of penal responsibility, to make the false statement alleged;
or



(2)  That the statement was inadmissible under the law
of evidence; or



(3)  That the oath was administered or taken in an
irregular manner; or



(4)  That the person administering the oath lacked
authority to do so, if the taking of the oath was required or authorized by
law. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §710-1068



 



  This section precludes certain defenses which might be raised
by a defendant in a prosecution under a section in this part.  The same result
would probably be reached by court interpretation; however, to avoid confusion
this section deals with these defenses specifically.



  Subsection (1) precludes a defense based on the incompetency
of a defendant to give certain testimony.  This subsection does not apply where
the incompetency is based on a complete lack of penal responsibility (i.e., the
defenses to penal liability provided by Chapter 704.).



  Subsection (2) precludes a defense based on the
inadmissibility, under the rules of evidence, of the false testimony.  For
example, a defendant in a perjury prosecution could not claim that, because a
correct application of the rules of evidence would have precluded the
defendant's testimony as being hearsay or irrelevant, the defendant is not
guilty of the falsification offense.  This subsection follows logically from
the definition of "materially false statement" in §710-1000(9), which
separates "materiality" from "admissibility."  "These
provisions are based on the same basic principle that once a person's testimony
is admitted he cannot excuse his perjury on the ground that the testimony was
subject to objection and should have been excluded in the first
instance."[1]



  Subsection (3) states the general rule that irregularities in
the administration of the oath are not a defense to falsification under oath.



Section[s
710-1060, 1061, and 1062] deal with statements under oath or affirmation.  The
guiding principle is that when the community commands or authorizes certain
statements to be made with special formality or on notice of special sanction,
the seriousness of the demand for honesty is sufficiently evident to warrant
application of criminal sanctions.  Oath, affirmation for those with religious
or other scruples against oaths, or--under Section [710-1000(10)]--notice that
the state means to apply criminal penalties to misstatements, should suffice. 
Technical irregularities in the administration of the oath are of no concern to
the defendant, as we have expressly provided in subsection (3).[2]



  Subsection (4) "is designed to deal with a situation
where the oath was taken as required by law, but was administered by a person
who lacked authority to do so,"[3] such as a notary whose commission
expired.  The Code precludes a defense to falsification under such
circumstances.



  Previous Hawaii statutory law was silent on the subjects
covered in this section.  The case law has not dealt with the subjects covered
by subsections (1) and (2), is in accord with subsection (3),[4] and is, in an
old case, contrary to subsection (4).[5]  The Code, in this section, represents
an addition to the law and a slight modification of an old decision.



 



__________



§710-1068 Commentary:



 



1.  Prop. Mich. Rev. Cr. Code, comments at 406.



 



2.  M.P.C., Tentative Draft No. 6, comments at 127 (1957).



 



3.  Prop. Mich. Rev. Cr. Code, comments at 406.



 



4.  Territory v. Kawano, 20 Haw. 469 (1911).



 



5.  The King v. Papa, 1 Haw. 346 (1855).