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State v. Chong11/25/1997
d, an indictment that is the result of prosecutorial misconduct or other circumstances which prevent the exercise of fairness and impartiality by the grand jury may be successfully attacked. State v. Joao, 53 Haw. 226, 491 P.2d 1089 (1971); State v. Pacific Concrete and Rock Co., 57 Haw. 574, 560 P.2d 1309 (1977).
Bell, 60 Haw. at 256-57, 589 P.2d at 526 (Kidwell, J., Concurring) (emphasis added). We therefore expressly approve and adopt Justice Kidwell's construct and overrule any dictum or analysis in the ICA's decision to the contrary.
C. On The Record Before It, The Joao Analysis Did Not Support The Circuit Court's Order Dismissing The Indictment Against Chong.
Given the record in this case, see supra section I, we hold that the prosecution's use of pre-scripted questions and answers in connection with its grand jury witnesses, called in the proceeding as a result of which the indictment against Chong was returned, did not so clearly infringe upon the jury's decision-making function and was not so innately prejudicial that the practice -- in and of itself -- violated Chong's right to due process of law by invading the province of the grand jury or tending to induce action other than that which the grand jurors, in their uninfluenced judgment, deemed warranted on the evidence fairly presented before them. In this connection, we agree with the ICA that, pursuant to Rule 1.1 of the Hawai'i Rules of Professional Conduct, " lawyer has a responsibility . . . to thoroughly prepare his or her witnesses before calling them to the stand." ICA's decision at 23.
III. Conclusion
For the foregoing reasons, we reaffirm the Joao analysis and adopt the views expressed by Justice Kidwell, Concurring in Bell. In all other respects, the ICA's decision is affirmed. Accordingly, we reverse the circuit court's order granting Chong's motion to dismiss the indictment and remand for further proceedings.
Ronald T.Y. Moon
Robert G. Klein
Steven H. Levinson
Paula A. Nakayama
Mario R. Ramil
Disposition
Affirmed.
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