As amended through August 30, 2021
Rule 5 - Proceedings Following Arrest(a)In general. (1) UPON ARREST. An officer making an arrest under a warrant shall take the arrested person without unnecessary delay before the court having jurisdiction, or, for the purpose of admission to bail, before any judge or officer authorized by law to admit the accused person to bail.(2) PROBABLE CAUSE DETERMINATION UPON ARREST WITHOUT A WARRANT. As soon as practicable, and, Rule 45 notwithstanding, not later than 48 hours after the warrantless arrest of a person held in custody, a district judge shall determine whether there was probable cause for the arrest. No judicial determination of probable cause shall be made unless there is before the judge, at the minimum, an affidavit or declaration of the arresting officer or other person making the arrest, setting forth the specific facts to find probable cause to believe that an offense has been committed and that the arrested person has committed it. If probable cause is found as aforesaid, an appropriate order shall be filed with the court as soon as practicable. If probable cause is not found, or a proceeding to determine probable cause is not held within the time period provided by this subsection, the arrested person shall be ordered released and discharged from custody.(3) CONSOLIDATION WITH OTHER PROCEEDINGS. The probable cause determination may, in the discretion of the judge, be combined with a bail hearing under subsection (a)(1) of this rule, an arraignment, a preliminary hearing or any other preliminary proceeding in the criminal case so long as the probable cause determination takes place in the time period provided under subsection (a)(2) of this rule. A probable cause determination shall not constitute an initial appearance unless it is combined with another preliminary proceeding in the same case.(b)Offenses other than felony. (1) ARRAIGNMENT. In the district court, if the offense charged against the defendant is other than a felony, the complaint shall be filed and proceedings shall be had in accordance with this section (b). A copy of the complaint, including any affidavits in support thereof, and a copy of the appropriate order, if any, shall be furnished to the defendant. If a defendant is issued a citation in lieu of physical arrest pursuant to Section 803-6(b) of the Hawai'i Revised Statutes and summoned to be orally charged as authorized by Rule 7(a) of these rules, a copy of the citation shall be filed and proceedings shall be had in accordance with this section (b). When the offense is charged by complaint, arraignment shall be in open court, or by video conference when permitted by Rule 43. The arraignment shall consist of the reading of the complaint to the defendant and calling upon the defendant to plead thereto. When the offense is charged by a citation and the defendant is summoned to be orally charged, arraignment shall be in open court or by video conference when permitted by Rule 43. The arraignment shall consist of a recitation of the essential facts constituting the offense charged to the defendant and calling upon the defendant to plead thereto. The defendant may waive the reading of the complaint or the recitation of the essential facts constituting the offense charged at arraignment, provided that, in any case where a defendant is summoned to be orally charged by a citation as authorized by Rule 7(a), the recitation of the essential facts constituting the offense charged shall be made prior to commencement of trial or entry of a guilty or no contest plea. In addition to the requirements of Rule 10(e), the court shall, in appropriate cases, inform the defendant of the right to jury trial in the circuit court and that the defendant may elect to be tried without a jury in the district court.(2) PLEA. The plea shall be entered in accordance with the provisions of Rule 11. The defendant shall not be entitled to a preliminary hearing; provided that if a defendant, having been arrested without a warrant, is held in custody for a period of more than 48 hours, Rule 45 notwithstanding, after the defendant's initial appearance in court without a commencement of trial, the defendant shall be released to appear on the defendant's own recognizance unless the court finds from a sworn complaint or from an affidavit or affidavits filed with the complaint or pursuant to subsection (a)(2) of this rule that there is probable cause to believe that an offense has been committed and that the defendant has committed it; provided further that if the defendant demands a jury trial under subsection (b)(3) of this rule, the court shall, upon the defendant's motion, discharge the defendant unless probable cause is found as aforesaid.(3) JURY TRIAL ELECTION. In appropriate cases, the defendant shall be tried by jury in the circuit court unless the defendant waives in writing or orally in open court the right to trial by jury. If the defendant does not waive the right to a trial by jury at or before the time of entry of a plea of not guilty, the court shall commit the defendant to the circuit court for trial by jury. Within 7 days after the district court's oral order of commitment (i) the district court shall sign its written order of commitment, (ii) the clerk shall enter the district court's written order, and(iii) the clerk shall transmit to the circuit court all documents in the proceeding and any bail deposited with the district court; provided, however, that if trial by jury is waived in the circuit court, the proceedings may be remanded to the district court for disposition. (4) TRIAL. A defendant who pleads not guilty and is not entitled to or has waived the right to trial by jury shall be tried in the district court.(5) SENTENCE. If the defendant is adjudged guilty after trial or plea, sentence shall be imposed without unreasonable delay.(c) Felonies. In the district court, a defendant charged with a felony shall not be called upon to plead, and proceedings shall be had in accordance with this section (c). (1) INITIAL APPEARANCE; SCHEDULING OF PRELIMINARY HEARING. At the initial appearance the court shall, in addition to the requirements under Rule 10(e), furnish the defendant with a copy of the complaint and affidavits in support thereof, if any, together with a copy of the appropriate order of judicial determination of probable cause, if any, and inform the defendant of the right to a preliminary hearing. If the defendant waives preliminary hearing pursuant to subsection (c)(2) of this rule, the court shall forthwith commit the defendant to answer in the circuit court. If the defendant does not waive such hearing, the court shall schedule a preliminary hearing, provided that such hearing shall not be held if the defendant is indicted or charged by information before the date set for such hearing.(2) WAIVER OF PRELIMINARY HEARING. The defendant may in open court waive preliminary hearing, provided that the court shall accept such waiver only after the defendant has signed a written statement acknowledging: (i) The defendant is aware of the defendant's constitutional right to require the State to establish probable cause before the State can begin formal felony prosecution in circuit court; (ii) That in order to establish probable cause the State must offer sufficient evidence to "lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion" that the defendant has committed the felony charged or an included felony; (iii) That the State has the choice of establishing probable cause at a public preliminary hearing in front of a judge, at a closed proceeding before the grand jury, or through an information with supporting exhibit(s) presented to a judge; (iv) That if a judge or the grand jury concludes that the State has established probable cause and if formal charges are then filed in circuit court, a defendant then has the right to obtain written transcripts of the grand jury proceeding or preliminary hearing, or a copy of the exhibit(s) supporting the information and the transcript or exhibit(s) that might help the defendant in preparing for trial; (v) That if a defendant waives preliminary hearing, the State may then prosecute the defendant immediately in circuit court, without waiting for a grand jury indictment or finding of probable cause by a judge based on an information and supporting exhibit(s); and (vi) By waiving a preliminary hearing, the defendant is giving up the right to a probable cause determination and is also giving up the right to obtain written transcripts of the preliminary hearing or grand jury proceeding and exhibit(s) supporting the information.(3) TIME FOR PRELIMINARY HEARING; RELEASE UPON FAILURE OF TIMELY DISPOSITION. The court shall conduct the preliminary hearing within 30 days of initial appearance if the defendant is not in custody; however, if the defendant is held in custody for a period of more than 2 days after initial appearance without commencement of a defendant's preliminary hearing, the court, on motion of the defendant, shall release the defendant to appear on the defendant's own recognizance, unless failure of such determination or commencement is caused by the request, action or condition of the defendant, or occurred with the defendant's consent, or is attributable to such compelling fact or circumstance which would preclude such determination or commencement within the prescribed period, or unless such compelling fact or circumstance would render such release to be against the interest of justice. (4) EVIDENCE. The prosecution and the defendant may introduce evidence and produce witnesses, who shall be subject to cross-examination. The defendant may testify, subject to cross-examination. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary hearing. Motions to suppress must be made to the trial court as provided in Rule 12.(5) DURATION OF HEARING; CONTINUANCE. Once the preliminary hearing has commenced, the court, for good cause shown, may continue it.(6) DISPOSITION. If from the evidence it appears that there is probable cause to believe that the felony charged, or an included felony, has been committed and that the defendant committed it, the court shall commit the defendant to answer in the circuit court; otherwise, the court shall discharge the defendant. The finding of probable cause may be based in whole or in part upon hearsay evidence when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge. If the defendant is held to answer in the circuit court, the court shall transmit to the circuit court all papers and articles received in evidence at the preliminary hearing and any bail received by it.(7) TIME FOR COMMITMENT TO CIRCUIT COURT. Within 7 days after the district court's oral order of commitment (i) the district court shall sign its written order of commitment,(ii) the clerk shall enter the district court's written order, and(iii) the clerk shall transmit to the circuit court all documents in the proceeding and any bail deposited with the district court.(8) BAIL. The district court, as authorized by Hawai'i Revised Statutes, chapter 804, may admit the defendant to bail or modify bail any time prior to the filing of the written order committing the case to circuit court.Amended February 28, 1983, effective February 28, 1983; amended effective September 2, 1988; further amended November 22, 1994, effective December 5, 1994; further amended April 11, 1995, effective April 26, 1995; further amended September 5, 1996, effective October 1, 1996; further amended effective September 17, 1997; further amended February 4, 2000, effective July 1, 2000; further amended November 17, 2000, effective January 1, 2001; further amended December 7, 2006, effective January 1, 2007; further amended December 21, 2007, effective January 1, 2008; further amended April 23, 2012, effective June 18, 2012; amended January 31, 2014, effective July 1, 2014.