State v. Hirata.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
31-OCT-2022
09:11 AM
Dkt. 13 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

CHANSE HIRATA,
Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1FFC-XX-XXXXXXX)

OCTOBER 31, 2022

McKENNA, WILSON, AND EDDINS, JJ.; AND RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY EDDINS, J.

A jury found Chanse Hirata guilty of violating Hawai‘i

Revised Statutes § 707-733.6 (2014), continuous sexual assault

of a minor under the age of fourteen years.

Hirata wants a new trial. He argues two of the deputy

prosecuting attorney’s closing argument remarks prejudiced his
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

right to a fair trial: (1) Hirata had “a motive to lie”; and (2)

the complaining witness (CW) testified “consistent with a child

who is traumatized.”

We hold that each of these remarks constitute misconduct,

and that neither was harmless beyond a reasonable doubt.

We vacate Hirata’s conviction and remand the case to the

trial court.

I.

The deputy prosecuting attorney’s (DPA) opening statement

previewed the State’s theory of the case. The case turned on

CW’s credibility.

Now, ladies and gentlemen, during the course of this trial,
you will not be presented with DNA evidence, you will not
be presented with surveillance videos, you will not be
presented with eyewitnesses, because there is none. But
you will hear from the one person that lived through all of
this. You’ll hear from [CW].

CW testified. The State also presented testimony from her

parents, a police officer, a detective who interviewed CW, a

doctor who examined CW, and an expert in the dynamics of child

sexual abuse.

Hirata, his parents, and his girlfriend testified for the

defense.

Both the prosecution and the defense acknowledged that the

case hinged on the jurors’ assessments of Hirata and CW’s

relative credibility.

2
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

The DPA’s closing argument circled back to the theme

introduced in her opening statement. The jury’s decision “comes

down to one question, is [CW] believable?” The DPA continued:

“the answer is clear to this question. Yes [CW] is believable.”

Then to support CW’s credibility, the DPA explained that her

“brave” testimony is “consistent with a child who is

traumatized.”

The DPA began her closing argument:

[DPA]: Now, at the beginning of this trial I told you you
were not gonna hear about DNA evidence. You weren’t gonna
see surveillance videos. You weren’t gonna hear from
eyewitnesses because in a case like this, there is none.
But you would hear from the one person that lived through
it, and at the end of this, it comes down to that one
person, comes down to [CW]. And it also comes down to one
question, is [CW] believable?

Now, the Court gave you the jury instructions that you all
have in front of you, and on page 8, there are a list of
factors that you can consider when you deliberate to
determine if a witness is credible. So you look at their
demeanor, their candor, lack of motive, and if what they
say makes sense.

So when you look at the factors – and I’ll go through them
with you, ladies and gentlemen – the answer is clear to
this question. Yes, [CW] is believable. And because [CW]
is believable, it’s – it is the testimony that has a
convincing force upon you that counts, and the testimony of
even a single witness, if believed, can be sufficient to
prove a fact.

So let’s go through the factors of [CW]’s credibility. Her
appearance, demeanor, her manner of testifying. She came
here last week. You saw her. She’s 11 years old. She was
nervous and understandably so. And she tried to be brave
up there on the stand. She answered all of my questions.
She answered all of the defense attorney’s questions.
Almost three hours up there.

And then at the end of almost those three hours, she
couldn’t be brave anymore, and you saw her when she got
emotional. She broke when the defense attorney continued
to call – to question her credibility and if she was making
this up, and her answer to you was this really happened.
It’s consistent with a child who is traumatized.

3
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

(Emphases added.)

The court’s jury instruction on credibility listed the

factors the DPA referenced. Before the closing arguments, the

court read this standard instruction about witness credibility.

See Hawaiʻi Standard Jury Instructions Criminal (HAWJIC) 3.09. 1

Because Hirata testified, the court also gave the standard

instruction directing the jury to treat him like other

witnesses. 2 Those instructions allowed the jury to consider

Hirata’s “interest, if any, in the result of this case” as it

evaluated the weight and credibility of his testimony.

1 The parties agreed to the court’s instruction. HAWJIC 3.09 (2000)
reads, in part:

It is your exclusive right to determine whether and to what
extent a witness should be believed and to give weight to
his or her testimony accordingly. In evaluating the weight
and credibility of a witness’s testimony, you may consider
the witness’s appearance and demeanor; the witness’s manner
of testifying; the witness’s intelligence; the witness’s
candor or frankness, or lack thereof; the witness’s
interest, if any, in the result of this case; the witness’s
relation, if any, to a party; the witness’s temper,
feeling, or bias, if any has been shown; the witness’s
means and opportunity of acquiring information; the
probability or improbability of the witness’s testimony;
the extent to which the witness is supported or
contradicted by other evidence; the extent to which the
witness has made contradictory statements, whether in trial
or at other times; and all other circumstances surrounding
the witness and bearing upon his or her credibility.

(Emphasis added.)

2 HAWJIC 3.15 (2012) instructs:

The defendant in this case has testified. When a defendant
testifies, his/her credibility is to be tested in the same
manner as any other witness.

4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

During her closing, the DPA spotlighted the court’s

instructions: the jury had to assess Hirata’s credibility just

like that of the other witnesses and could consider his interest

in the case’s result. Then the DPA declared that none of the

defense’s witness – Hirata included - could be believed because

“[t]hey have a motive to lie”:

Additionally, the defendant also testified, and the jury
instructions say that when a defendant testifies, his
credibility is to be tested in the same manner as any other
witness. So we still need to use – or you still need to
use those factors on page 8.

So is the defense’s story believable? We look at the same
factors. They have bias. They have a motive to lie. What
they said doesn’t make sense, and at times, they even
contradicted each other. The defense’s story is not
believable. The defense’s story is not believable, and
this is what their story is.

(Emphases added.)

The jury found Hirata guilty as charged of continuous

sexual assault of a minor under the age of fourteen years.

Hirata appealed.

In a Summary Disposition Order, the ICA held that the DPA

improperly undermined Hirata and his witnesses’ testimony by

saying they had a motive to lie. But, it said, this misconduct

was harmless because “[t]he evidence against Hirata was

overwhelming.” The ICA did not address Hirata’s argument that

the prosecutor crossed the line by claiming the CW testified

“consistent with a child who is traumatized.”

5
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

In his cert application, Hirata presents a single question:

“Whether the ICA gravely erred in holding that the misconduct by

the DPA was harmless beyond a reasonable doubt and did not

violate Hirata’s constitutional right to a fair trial?”

II.

Hirata did not object to the DPA’s closing argument, so his

appeal is subject to plain error review. 3

We apply the plain error standard of review “to correct

errors which seriously affect the fairness, integrity, or public

reputation of judicial proceedings, to serve the ends of

justice, and to prevent the denial of fundamental rights.”

State v. Williams, 146 Hawaiʻi 62, 72, 456 P.3d 135, 145 (2020).

Prosecutorial misconduct claims concern violations of the

right to a fair trial. That’s a fundamental right. See State

v. Williams, 149 Hawaiʻi 381, 392, 491 P.3d 592, 603 (2021) (“The

constitutions of the United States and the State of Hawaiʻi

guarantee every individual accused of a crime the fundamental

right to a fair trial.”). 4

3 The issues were briefed by the parties on appeal as required by Hawaiʻi
Rules of Appellate Procedure Rule 28(b)(4)(D) (2022).

4 See also State v. Yoshino, 50 Haw. 287, 290, 439 P.2d 666, 668–69
(1968) (“A fair trial in a fair tribunal is a basic requirement of due
process. Fairness of course requires an absence of actual bias in the trial
of cases. But our system of law has always endeavored to prevent even the
probability of unfairness. . . . To perform its high function in the best
way justice must satisfy the appearance of justice.” (cleaned up)) (quoting
In re Murchison, 349 U.S. 133, 136 (1955)).

6
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Because prosecutorial misconduct impacts the fundamental

right to a fair trial, there is no difference between the plain

error and harmless beyond a reasonable doubt standards of

review. See State v. Riveira, 149 Hawai‘i 427, 431 n.10, 494

P.3d 1160, 1164 n.10 (2021) (observing that “courts have

considered the same three [harmless beyond a reasonable doubt]

factors” when considering prosecutorial misconduct claims under

plain error review).

In prosecutorial misconduct cases, then, once the defense

establishes misconduct - objection or no objection - appellate

review is the same: “After considering the nature of the

prosecuting attorney’s conduct, promptness or lack of a curative

instruction, and strength or weakness of the evidence against

the defendant, a reviewing court will vacate a conviction if

there is a reasonable possibility that the conduct might have

affected the trial’s outcome.” Id. at 431, 494 P.3d at 1164.

III.

Both the motive-to-lie remark and the prosecutor’s claim

that CW testified “consistent with a child who is traumatized”

were prosecutorial misconduct.

To the extent the motive-to-lie remark concerns Hirata’s

testimony (as opposed to that of his parents and girlfriend), it

is misconduct because it suggests that Hirata had a motive to

7
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

lie without presenting any evidence in support of that claim

other than Hirata’s party status. 5

Our caselaw forbids “arguments that are uncoupled from

evidence showing the defendant has a particular interest in the

outcome separate from the generic interest shared by all

defendants in criminal cases.” State v. Salavea, 147 Hawai‘i

564, 585 n.29, 465 P.3d 1011, 1032 n.29 (2020). 6 Our law is

5 The DPA’s motive-to-lie remark is also misconduct because of its use of
the word “lie” in connection with the testimony of Hirata’s mother, father,
and girlfriend. A prosecutor’s use of the verb lie when linked to witness
credibility is improper. “The word’s strongly pejorative tone conveys the
speaker’s subjective disapproval that the witness would taint the judicial
process with dishonesty.” State v. Austin, 143 Hawaiʻi 18, 51, 422 P.3d 18,
51 (2018) (Pollock, J., concurring in part). Prosecuting attorneys must
scrub lie and its derivatives from their closing argument vocabulary. See
id. at 56, 422 P.3d at 56 (barring the use of “lie” to describe a witness’s
testimony to “allay[] the uncertainty of counsel and trial courts otherwise
tasked with determining when the use of the term crosses the line . . . into
actual impropriety” (cleaned up)).

The ICA correctly ruled the DPA’s motive-to-lie remark improperly
impugned the defense witnesses’ testimony. This is true even though the DPA
didn’t say that mother, father, and girlfriend lied, just that they had “a
motive to lie.” Saying a person has a motive to lie implies an opinion that
the person has lied. Cf. id. at 51, 422 P.3d at 51 (explaining that “the
prosecutor’s statement that [defendant] ‘lied to you’ was functionally
equivalent to ‘I think [defendant] lied to you’”). We also agree with the
ICA that, to the extent this inappropriate remark concerned the credibility
of Hirata’s parents and girlfriend (and not Hirata himself) it was harmless
error because there is not a reasonable possibility that, standing alone, it
would have impacted the trial’s outcome. This case depended on the jury’s
credibility determinations regarding CW and Hirata.

6 The ICA cited Salavea in holding that the DPA’s motive-to-lie argument
was an improper credibility attack because it suggested to the jury that
Hirata had a motive to lie simply because he was the defendant and didn’t
“refer to any specific facts or evidence showing that Hirata had a motive to
lie.” Implicit in the ICA’s decision was the notion that a juror might
reasonably believe the DPA linked her “they had a motive to lie” remark to
Hirata. During her closing the DPA mentioned the defense witnesses’
testimony. Next she referenced the court’s credibility instruction, saying
that Hirata’s “credibility is to be tested in the same manner as any other
witness.” Then the DPA immediately asked the jury: “So is the defense’s
story believable? We look at the same factors. They have bias. They have a
motive to lie.” The order of operation: mentioning mother, father, and

8
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

clear: prosecuting attorneys “cannot ask the jury to infer a

defendant’s lack of credibility based solely on the fact that

[they are the] defendant.” State v. Basham, 132 Hawaiʻi 97, 117,

319 P.3d, 1105, 1125 (2014).

In both Basham and Salavea, we gave defendants new trials

when the prosecuting attorneys suggested they had a “motive to

lie” to the police (in Basham 7) and to the jury (in Salavea 8).

Here, the State argues that unlike in Basham and Salavea,

the prosecuting attorney discussed specific evidence justifying

its claim that Hirata had a motive to lie: “When discussing[]

Hirata’s credibility,” the DPA “argued that Hirata’s testimony

contradicted other witnesses’ testimony.” 9

girlfriend, next referencing the jury instruction concerning Hirata’s
credibility, and then saying “They have a motive to lie,” clearly conveys to
the jury that Hirata is one of the people with a motive to lie. The State’s
briefing does not argue otherwise.

7 In Basham, we said that the prosecuting attorney’s statement that
Basham – who unlike Hirata did not testify in his own defense - had a motive
to lie to the police expressed “a personal view on the credibility of the
State’s witnesses and the guilt of the defendants.” 132 Hawaiʻi at 115, 319
P.3d at 1123. Basham received a new trial.

8 In Salavea, the prosecuting attorney argued that the testifying
defendant lacked credibility because she had a “motive to lie.” Yet as in
Basham, the DPA did not explain the defendant’s alleged “motive to lie.” The
DPA referenced no specific facts or evidence. There was nothing behind the
prosecutor’s motive-to-lie remark aside from the interest all defendants have
in avoiding conviction. Salavea received a new trial. 147 Hawaiʻi at 584-85,
465 P.3d at 1031-32.

9 Excluding an eight-page reproduction of the DPA’s summation, the
argument section in the State’s answering brief omits the words “motive to
lie.” And this section only mentions one quote from one case, Salavea:
“Prosecutors may . . . cite to specific facts or evidence indicating the lack
of trustworthiness of the witness or defendant when discussing a witness or
defendant’s testimony during summation.”

9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

This argument makes no sense.

There is no logical relationship between the claim that

Hirata’s testimony contradicted that of other witnesses and the

claim that Hirata had an interest in lying on the stand.

Discussing inconsistencies or discrepancies between witnesses is

a traditional evidence-based method to undercut credibility.

But that routine credibility attack does not provide an

evidentiary bridge to support a motive-to-lie comment.

Here, there were no specific facts or evidence to justify

the DPA’s credibility attack, only Hirata’s defendant status

could explain the remark. So the prosecutor’s comment was

misconduct.

The State also attempts to justify this misconduct on the

grounds that it was made “in light of the jury instruction

regarding credibility.” But this argument fails: far from

justifying the prosecutor’s motive-to-lie remark, the court’s

use of a credibility instruction identical to HAWJIC 3.09 and

the DPA’s references to that instruction during closing

aggravated the motive-to-lie misconduct.

This court flagged a potential pitfall with HAWJIC 3.09 in

Salavea. In that case, this court considered whether Basham’s

holding – a prosecutor cannot undermine a defendant’s

credibility based solely on party status - was inconsistent with

HAWJIC 3.09. Salavea concluded that there was no inconsistency

10
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

when the prosecutor supports the inference that the defendant

lacks credibility with non-status evidence. But it did not

condone the use of HAWJIC 3.09’s “interest, if any, in the

result of this case” clause in the way more common situation

where there’s no evidence other than a defendant’s status as

defendant to support a credibility attack. Salavea, 147 Hawai‘i

at 585, 465 P.3d at 1032.

Here, the DPA committed misconduct when she stated Hirata

had a motive to lie based solely on his party status. This

misconduct was amplified by the DPA’s references to a

credibility instruction that, by its terms, generically attacks

the credibility of testifying defendants 10 and, in doing so,

“transform[s] a defendant’s decision to testify at trial into an

automatic burden on credibility.” Basham, 132 Hawaiʻi at 118,

319 P.3d at 1126 (cleaned up). Given the risk that HAWJIC 3.09

poses to defendants’ due process right to a fair trial, we

direct trial courts to excise HAWJIC 3.09’s “interest, if any,

10 In our courtrooms the trial judge reads the jury instructions, most
jurors read along, and all jurors take the instructions to the jury room.
Then jurors at some point consult the credibility instruction to fact find.
In most trials, HAWJIC’s 3.09’s “interest in the result of this case” clause
deflates a testifying defendant’s credibility. The instruction invites
jurors to disbelieve a testifying defendant for no reason other than their
interest in the result of the case, their status as Defendant. And this is
wrong. Attacking a defendant’s credibility with remarks “uncoupled from
evidence showing the defendant has a particular interest in the outcome
separate from the generic interest shared by all defendants in criminal
cases” is misconduct. Salavea, 147 Hawaiʻi at 585 n.29, 465 P.3d at 1032
n.29.

11
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

in the result of this case” clause when a defendant testifies

and there’s no specific evidence to support a credibility attack

other than the universal interest in the result of the case

shared by all defendants. 11

The DPA’s remark that the CW testified “consistent with a

child who is traumatized” was also misconduct. 12

A prosecuting attorney has a duty to seek justice, to play

fair and square. A prosecuting attorney’s words have an

outsized influence on a jury. For this reason, this court has

often directed prosecutors to not express personal beliefs about

the evidence. See, e.g., State v. Marsh, 68 Haw. 659, 660, 728

P.2d 1301, 1302 (1986) (stating that prosecutors must “refrain

from expressing their personal views as to a defendant’s guilt

or credibility of witnesses”).

Prosecutors are also forbidden from introducing new

information or evidence in closing argument. See Basham, 132

Hawaiʻi at 113, 319 P.3d at 1121 (“Closing arguments are not the

11 The HAWJIC 3.09 clause “all other circumstances surrounding the witness
and bearing upon his or her credibility” covers other “interests” that are
useful to evaluating the credibility of a witness and the weight to be given
to their testimony. We suggest the Standing Committee on Pattern Criminal
Jury Instructions rethink HAWJIC 3.09, an instruction that has not been
updated for over twenty years.

12 The ICA’s Summary Disposition Order did not address this point of
error. Hirata’s “Statement of Point of Error” in his opening brief
identifies the misconduct he alleges, including the “consistent-with-a-child-
who-is-traumatized” remark. And his opening and reply briefs urge reversal
because of this remark. Hirata’s application for certiorari highlights the
ICA’s omission regarding this point of error.

12
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

place to introduce new evidence outside the safeguards of the

Hawaiʻi Rules of Evidence.”). We have explained that

“expressions of personal opinion by the prosecutor are a form of

unsworn, unchecked testimony and tend to exploit the influence

of the prosecutor’s office and undermine the objective

detachment that should separate an attorney from the cause being

argued.” Salavea, 147 Hawai‘i at 582, 465 P.3d at 1029.

Here, the jury heard the DPA opine that the CW testified

“consistent with a child who is traumatized.” But it heard no

evidence that could legitimately support the prosecutor’s claim

that the CW testified consistent with a traumatized child. 13 No

witness testified about CW’s mental health or psychological

condition. 14

The DPA improperly expressed her personal belief about

CW’s credibility and injected new evidence by explaining to the

jury that CW’s testimony is “consistent with a child who is

traumatized.” Her unsupported comment invited the jury to infer

that she had undisclosed information about CW’s mental health,

information that could corroborate a trauma-inducing event like

13 Nor in most cases could they. See Riveira, 149 Hawaiʻi at 431, 494 P.3d
at 1164 (explaining that testimony about “a crime’s after-effects are rarely
allowed” because the information is both irrelevant and highly prejudicial).

14 The state’s expert testified generally about delayed disclosure,
“tunnel memory,” and other dynamics of child sexual abuse. But the expert
supplied no evidence about post-abuse “trauma” or how traumatized children
act or testify in court. The expert was also unfamiliar with CW or the
case’s factual scenario.

13
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

the charged crime. We hold that the DPA’s remarks constituted

serious prosecutorial misconduct.

IV.

Having determined that both of the challenged remarks

constitute prosecutorial misconduct, we turn now to determining

whether there is a reasonable possibility that this misconduct

“might have affected the trial’s outcome.” See Riveira, 149

Hawai‘i at 431, 494 P.3d at 1164.

Typically, a trial ends one of three ways: with a guilty

verdict, a not guilty verdict, or a hung jury mistrial. So a

prosecutor’s improper remarks affect the trial’s outcome if

there’s a reasonable possibility that at least one juror might

have been affected by the misconduct: it just takes one

unconvinced juror to hang a jury. The reasonable possibility

standard, then, is satisfied if there’s a showing that it’s

reasonably possible that, absent the misconduct, a single juror

would have voted differently.

We have historically considered three factors in applying

this standard: (1) the nature of the prosecuting attorney’s

misconduct; (2) the promptness or lack of a curative

instruction; and (3) the strength or weakness of the evidence

against the defendant. Id.

Here, however, our analysis will focus on the first and

third factors. Put differently, the lack of a curative

14
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

instruction, though technically a consideration that should

weigh in Hirata’s favor, does not impact our analysis of whether

there’s a reasonable possibility that either of the DPA’s

remarks impacted the trial’s outcome.

The importance of the second factor — promptness or lack of

a curative instruction — pales in comparison to that of the

first and third factors for two reasons.

First, curative instructions are not particularly

effective. See id. at 433, 494 P.3d at 1166 (recognizing that

“[c]ourt instructions often serve as an unsatisfactory,

ineffectual fix when prejudicial matters surface at trial”).

Often, even if a curative instruction is given, its effect is

minimal.

Second, because curative instructions are less likely

without an objection, giving great weight to the promptness or

lack of a curative instruction factor in assessing harmless

error makes “a successful appeal easier in a plain error

prosecutorial misconduct case.” Id. And, in doing so, it may

even disincentivize defendants from objecting at trial. We are

thus disinclined to “reward” defendants for failing to object at

trial by giving significant weight to the resultant lack of a

curative instruction.

To be sure, a strongly-worded admonition immediately

following minor prosecutorial misconduct may mitigate the

15
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

effects of that misconduct on the trial’s outcome and should be

considered. But in many cases, this one included, the first and

third factors of the harmless error analysis are primary.

A.

There is a reasonable possibility that the DPA’s motive-to-

lie remark affected the outcome of Hirata’s trial.

We view unfounded allegations that a defendant has a

“motive to lie” as extreme misconduct. The suggestion that a

defendant’s party status might motivate dishonesty – no matter

how veiled — meddles with defendants’ constitutional rights to

testify and not to testify.

The choice to testify, or not, is the biggest decision a

defendant makes at trial. Our courts do a lot to ensure this

crucial call is made knowingly, intelligently, and voluntarily. 15

Knowing that the prosecuting attorney can generically attack

credibility may impermissibly alter defendants’ calculus about

which constitutional right to choose. 16

15 See e.g. State v. Lewis, 94 Hawai‘i 292, 293, 12 P.3d 1233, 1234 (2000)
(describing the comprehensive colloquy - designed to protect the right to
testify and the right not to testify - that happens before the start of trial
and at the end of trial).

16 See Basham, 132 Hawaiʻi at 118, 319 P.3d at 1126 (Impugning credibility
because a defendant has a motive to lie “discourage[s] a defendant from
exercising [their] constitutional right to testify on [their] own behalf.”).

See also id. at 116, 319 P.3d at 1124 (identifying the constitutional
rights diluted by a motive or interest comment directed at testifying
defendants and observing that the tactic “impinges upon fundamental
principles of our system of justice, including the presumption of innocence,

16
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

As we put it in Austin:

Because such an argument can be asserted indiscriminately
as to any defendant, regardless of the evidence, it is
completely unhelpful to the finder of fact. Moreover,
arguing that the testimony of defendants should inherently
be doubted contradicts the presumption of innocence — a
foundation of our criminal justice system. That is, a
contention that defendants are inherently motivated to lie
effectively places the burden on defendants to prove they
are testifying truthfully, which also has a chilling effect
on the constitutional right to testify.

143 Hawaiʻi at 56 n.12, 422 P.3d at 56 n.12.

In this case, not only did the DPA launch a generic

credibility attack, but the DPA told the jury Hirata has a

motive to lie. The comment is not a rhetorical device or fair

commentary on the evidence. Rather it’s an improper courtroom

epithet. See Austin, 143 Hawai‘i at 51, 422 P.3d at 51 (“[t]he

word’s strongly pejorative tone conveys the speaker’s subjective

disapproval that the witness would taint the judicial process

with dishonesty, effectively coupling an assertion of the

speaker’s opinion with the factual contentions that are innate

in the word ‘lie’”).

In cases like this one, where the misconduct was the

improper suggestion that a testifying defendant had a “motive to

lie,” and decisions about the “strength or weakness of the

evidence against the defendant” hinge entirely on credibility

assessments, there will always be a reasonable possibility that

the burden of proof upon the government, the right to testify without
penalty, and the right to a fair trial with an unbiased jury”).

17
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

the misconduct affected the trial’s outcome. We need not even

look at “the promptness or lack of a curative instruction.” It

doesn’t matter. In a case that turns on credibility, the mere

suggestion that a defendant was untruthful because of their

interest in avoiding conviction necessarily affects the outcome

of the trial.

Turning to the DPA’s consistent-with-a-child-who-is-

traumatized misconduct, we find that it too, standing alone is

reasonably likely to have affected the trial’s outcome.

The State argues the DPA’s remarks about CW’s credibility

were “based on specific evidence adduced at trial considered in

light of the jury instruction regarding credibility.” We are

unpersuaded.

Prosecutors recap evidence in every closing argument. This

intrinsic feature of summation does not greenlight personal

opinions. We were clear about this in Salavea: “a statement may

improperly imply a personal opinion . . . even if specific facts

or evidence are invoked.” 147 Hawaiʻi at 582 n.23, 465 P.3d at

1029 n.23 (emphasis added).

The DPA’s remark exceeds fair commentary on the evidence.

Worse, the information resembles prejudicial victim-impact

evidence. See Riveira, 149 Hawaiʻi at 433, 494 P.3d at 1166.

The DPA effectively hinted she knew something the jury didn’t

know: CW presently suffers trauma, and CW’s demeanor and

18
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

testimony match the way victims of child sexual abuse testify.

The DPA thus expressed a “personal opinion” that took the “form

of unsworn, unchecked testimony.” See Basham, 132 Hawaiʻi at

115, 319 P.3d at 1123.

Because the prosecutor improperly bolstered CW’s

credibility and, by extension, undermined Hirata’s credibility,

the nature of the misconduct factor strongly favors reversal.

Turning to the third factor, here, the “strength or

weakness of the evidence against the defendant” pivoted on the

jury’s decisions about CW and Hirata’s credibility.

The State’s opening statement advanced its theory of the

case; that is, believe CW. And in closing the State bookended

its theory: “and at the end of this, it comes down to that one

person, comes down to [CW]. And it also comes down to one

question, is [CW] believable?”

The defense’s theory of the case was the inverse: believe

Hirata and disbelieve CW.

There was not, as the ICA concluded, “overwhelming”

evidence of Hirata’s guilt. There was testimony that the jury

could believe, or not.

In cases reliant on the jury’s credibility findings,

misconduct attacking a defendant’s credibility or bolstering a

complainant’s (or critical witness’s) credibility is seldom

harmless beyond a reasonable doubt. See State v. Underwood, 142

19
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Hawaiʻi 317, 329, 418 P.3d 658, 670 (2018) (explaining that

evidence of an offense is not overwhelming “[w]hen a conviction

is largely dependent on a jury’s determination as to the

credibility of a complainant’s testimony”).

The DPA enhanced the CW’s credibility, and, by extension,

drained Hirata’s credibility. Given the evidence presented

against Hirata there is a reasonable possibility that the DPA’s

remark about the CW’s testimony, standing alone, contributed to

the trial’s outcome.

We hold that neither instance of prosecutorial misconduct

that occurred in this case was harmless beyond a reasonable

doubt. See Williams, 149 Hawaiʻi at 397, 491 P.3d at 608

(holding the evidence of guilt was not overwhelming where the

complaining witness “was the only witness other than defendant

who could describe the actual acts” and that “testimony

constituted the most significant evidence against” the

defendant). 17 There is a reasonable possibility that each

17 See also State v. Conroy, 148 Hawai‘i 194, 205, 468 P.3d 208, 219 (2020)
(stating “[o]f significance to a determination of the strength of the
prosecution’s case is that there were no witnesses to the altercation other
than [the defendant] and CW”); State v. David, 149 Hawai‘i 469, 481, 494 P.3d
1202, 1214 (2021) (holding that because the defendant’s self-defense argument
depended on his credibility, the exclusion of the aggressor’s blood alcohol
concentration levels prevented a fair trial); Salavea, 147 Hawai‘i at 580, 465
P.3d at 1027 (finding ineffective assistance of counsel not to elicit
evidence of the CW’s meth use because the evidence was critical to “‘the
outcome of the case [which] depended on the credibility’ of the CW and [the
defendant]”); State v. Tuua, 125 Hawai‘i 10, 17, 250 P.3d 273, 280 (2011)
(explaining this court’s reluctance to hold improper statements harmless
“[i]n close cases involving the credibility of witnesses, particularly where
there are no disinterested witnesses or other corroborating evidence”);

20
 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

instance of misconduct, standing alone, contributed to the

trial’s outcome.

V.

We vacate the ICA’s Judgment on Appeal and the circuit

court’s Judgment of Conviction and Sentence. The case is

remanded to the circuit court. 18

Hayley Y.C. Cheng /s/ Sabrina S. McKenna
(Jon N. Ikenaga, on the
/s/ Michael D. Wilson
briefs)
for petitioner /s/ Todd W. Eddins

Brian R. Vincent
for respondent

State v. Walsh, 125 Hawai‘i 271, 297, 260 P.3d 350, 376 (2011) (understanding
“when a prosecution’s case against the defendant is not overwhelming but
turns on the credibility of the defendant, it is likely that the error might
have contributed to the conviction”); Marsh, 68 Haw. at 661, 728 P.2d at 1302
(holding “[t]he pivotal issue was the credibility of the witnesses. The jury
had to decide whether to believe the victim or the alibi witnesses. We
cannot conclude beyond a reasonable doubt that the prosecutor’s remarks had
little likelihood of influencing this critical choice.”).

18 When the remedy for prosecutorial misconduct is remand, the appellate
court has not barred retrial. The judgment establishes that the misconduct
is “not so egregious as to clearly deny [the defendant] a fair trial, and the
protections of double jeopardy.” Underwood, 142 Hawaiʻi at 329, 418 P.3d at
670. From this point on, for appeals that allege prosecutorial misconduct,
the briefs do not need to address the double jeopardy issue first identified
in State v. Rogan, 91 Hawaiʻi 405, 423, 984 P.2d 1231, 1249 (1999). The
appellate court may order supplemental briefing at its discretion.

21