dissenting, with whom LEVINSON, Justice, joins.
I disagree with the approach taken by the majority in this case. In my view, our prior case law, our statutory scheme, the policies underlying statutes of limitations, and the policies underlying included offense instructions argue in favor of a different approach. Therefore, I respectfully dissent.
For the sake of clarity, I believe that the issue presented in this case, i.e., the effect of the statute of limitations on included offenses, should be separated into two subsidiary issues: (1) whether the statute of limitations for an included offense can be “waived” and (2) whether an included offense jury instruction is required even if the statute of limitations for the included offense has expired.
I. DISCUSSION
A. Whether the Statute of Limitations Can Be “Waived”
The prosecution argues that the statute of limitations for an included offense can be waived and that, in the present case, Timoteo waived it. However, before addressing this issue, a more extensive definition of the term “waiver” is warranted. In the past, courts have used the term “waiver” rather loosely and have failed to distinguish between two important concepts. Strictly speaking, “waiver” is the “intentional relinquishment or abandonment of' a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). However, “[w]aiver is different from forfeiture.” Id. “Forfeiture” should be defined as the automatic and unintentional loss of a right, such as that resulting from the “failure to make the timely assertion of a right.” Id. The California Supreme Court has recently applied the waiver/forfeiture distinction in the *120context of the very issue addressed in the present case, and I adopt this distinction for my analysis. See Cowan v. Superior Court, 14 Cal.4th 367, 58 Cal.Rptr.2d 458, 926 P.2d 438 (1996).
Courts in other jurisdictions have apparently taken three different approaches to statutes of limitations. Under the first approach, known as the “jurisdictional” approach, statutes of limitations can be neither waived nor forfeited. Statutes of limitations are regarded as implicating considerations of subject matter jurisdiction; they limit the power of the court to punish defendants for crimes committed beyond the limitations period. See, e.g., Grayer v. State, 234 Ark. 548, 353 S.W.2d 148 (1962); Cane v. State, 560 A.2d 1063 (Del.1989); State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959); State v. Stillwell, 175 N.J.Super. 244, 418 A.2d 267 (Ct.App.Div.1980); State v. Thomas, 72 N.D. 537, 9 N.W.2d 442 (1943).
Under the second approach, adopted by the majority, which I refer to as the “forfeiture” approach, defendants can automatically and unintentionally lose the statute of limitations defense by failing to raise it before or during trial, by requesting an included offense instruction, or upon a guilty plea. See. e.g., United States v. Arky, 938 F.2d 579 (5th Cir.1991) (failing to raise), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992); United States v. DeTar, 832 F.2d 1110 (9th Cir.1987) (requesting an included offense instruction); United States v. Karlin, 785 F.2d 90 (3d Cir.1986) (failing to raise), cert. denied, 480 U.S. 907, 107 S.Ct. 1351, 94 L.Ed.2d 522 (1987); United States v. Williams, 684 F.2d 296 (4th Cir.1982) (requesting an included offense instruction), cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74 L.Ed.2d 961 (1983); People v. Speller, 46 Ill.App.3d 208, 4 Ill.Dec. 780, 360 N.E.2d 1155 (1977) (failing to raise); People v. Kurzawa, 202 Mich.App. 462, 509 N.W.2d 816 (1993) (failing to raise); State v. Johnson, 422 N.W.2d 14 (Minn.Ct.App.1988) (guilty plea); Longhibler v. State, 832 S.W.2d 908 (Mo.1992) (guilty plea); State v. Atlas, 75 Mont. 547, 244 P. 477 (1926) (failing to raise); State v. Wiemer, 3 Neb.App. 821, 533 N.W.2d 122 (1995) (guilty plea); State v. Holder, 133 N.C. 709, 45 S.E. 862 (1903) (failing to raise); State v. Brown, 43 Ohio App.3d 39, 539 N.E.2d 1159 (1988) (guilty plea); Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983) (failing to raise); State v. Lambrechts, 585 A.2d 645 (R.I.1991) (requesting an included offense instruction); State v. Yount, 853 S.W.2d 6 (Tex.Crim.App.1993) (requesting an included offense instruction).
Under the third approach, which I refer to as the “waiver” approach, a defendant may waive the statute of limitations as long as it is done expressly (as opposed to implicitly) or it is done knowingly, intelligently, and voluntarily. See, e.g., United States v. Wild, 551 F.2d 418 (D.C.Cir.), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977); Hall v. State, 497 So.2d 1145 (Ala.Crim.App.1986); Padie v. State, 594 P.2d 50 (Alaska 1979); Cowan, supra;1 State v. Littlejohn, 199 Conn. 631, 508 A.2d 1376 (1986); Tucker v. State, 417 So.2d 1006 (Fla.Ct.App.1982), aff'd, 459 So.2d 306 (Fla.1984); Lowe v. State, 14 Kan.App.2d 119, 783 P.2d 1313 (1989); People v. Dickson, 133 A.D.2d 492, 519 N.Y.S.2d 419 (N.Y.App.Div.1987); People v. Soto, 76 Misc.2d 491, 352 N.Y.S.2d 144 (N.Y.Crim.Ct.1974); People v. Perico, 143 Misc.2d 961, 542 N.Y.S.2d 911 (N.Y.Dist.Ct.1989); State v. Pearson, 858 S.W.2d 879 (Tenn.1993); State v. Muentner, 138 Wis.2d 374, 406 N.W.2d 415 (1987).
In my view, the jurisdictional approach is ultimately unsatisfactory. Years ago, the overwhelming majority of states followed the jurisdictional approach. See C. Marvel, Annotation, Conviction of Lesser Offense, Against Which Statute of Limitations Has Run. Where Statute Has Not Run Against Offense with Which Defendant is Charged, 47 A.L.R.2d 887 (1956). However, the modern trend is clearly against the jurisdictional *121approach and in favor of the other approaches. See T. Thomas, Annotation, Waiv-ability of Bar of Limitations Against Criminal Prosecution, 78 A.L.R.4th 693 (1990). In fact, commentators in recent years have generally advocated the waiver approach. See Comment, The Statute of Limitations in a Criminal Case: Can It Be Waived?, 18 Wm. & Mary L.Rev. 823 (1977); Note, Waiver of the Statute of Limitations in Criminal Prosecutions: United States v. Wild, 90 Harv.L.Rev. 1550 (1977) (hereinafter Waiver: Wild); R. Moot, Fourth Circuit Review— Waiver of Criminal Statutes of Limitation, 40 Wash. & Lee L.Rev. 459, 712-25 (1983).
More importantly, the notion that the statute of limitations is an aspect of jurisdiction is inconsistent with our statutes. HRS § 701-114(l)'(e) provides that the statute of limitations must be proven beyond a reasonable doubt in order for a defendant to be convicted. However, HRS § 701-114(l)(e) provides that jurisdiction must also be proven.2 Because two subsections in the same statute expressly distinguish between jurisdiction and the statute of limitations, they must of necessity be treated as distinct concepts. Therefore, I believe that the statute of limitations is not an aspect of the jurisdiction of the courts, but rather, is a substantive statutory right held by the defendant.
Not only is the jurisdictional approach unsatisfactory, but the forfeiture approach is unsatisfactory as well. Based on an examination of our statutory scheme, it is apparent that the protection of the statute of limitations is too important to be unintentionally lost. HRS § 701-108 currently provides in relevant part:
Time limitations. (1) A prosecution for murder, murder in the first and second degrees, attempted murder, and attempted murder in the first and second degrees may be commenced at any time.
(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:
(a) A prosecution for manslaughter where the death was not caused by the operation of a motor vehicle must be commenced within ten years after it is committed;
(b) A prosecution for a class A felony must be commenced "within six years after it is committed;
(c) A prosecution for any other felony must be commenced within three years after it is committed;
(d) A prosecution for a misdemeanor or a parking violation must be commenced within two years after it is committed;
(e) A prosecution for a petty misdemeanor or a violation other than a parking violation must be commenced within one year after it is committed.
HRS § 701-108 (Supp.1996). The mandate of HRS § 701-108 is not merely procedural. Rather, it is an important component of the prosecution’s prima facie case. A prima facie case is “[a] case which has proceeded upon sufficient proof to that stage where it will support [a] finding if evidence to the contrary is disregarded.” Black’s Law Dictionary 1190 (6th ed.1990). It “consists of sufficient evidence ... to get the plaintiff past a motion for directed verdict in a jury case[.]” Id. In Hawai'i criminal law, the prima facie case is the legal minimum that the prosecution must establish in order to survive a motion for judgment of acquittal under HRPP Rule 29.3 Only if the prosecution proves each of *122the components of the prima facie case beyond a reasonable doubt is entry of a judgment of conviction allowed. HRS § 701-114 lays out the components of the prosecution’s prima facie case:
Proof beyond a reasonable doubt. (1) Except as otherwise provided in section 701-115, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:
(a) Each element of the offense;
(b) The state of mind required to establish each element of the offense;
(c) Facts establishing jurisdiction;
(d) Facts establishing venue; and
(e) Facts establishing that the offense was committed within the time period specified in section 701-108.
(2) In the absence of the proof required by subsection (1), the innocence of the defendant is presumed.
HRS § 701-114 (1993) (emphasis added). Thus, the statute of limitations is an essential part of the prosecution’s prima facie case that must be proven beyond a reasonable doubt. The statute of limitations occupies such a critical position in the Hawai'i Penal Code because it serves a number of important policies:
Several important policies underlie the ... statute of limitations. The most persuasive is the fact that after a certain time, evidence tending to prove or disprove criminal liability becomes stale. Witnesses die, move away, or forget; physical evidence disintegrates, and it becomes impossible to ascertain what actually happened. Statutes of limitations may also be viewed as statutes of repose. Even a person who has committed a penal act is entitled, after the passage of some time, to conduct the person’s affairs on the assumption that they will not be disrupted by a prosecution. This is particularly true in the case of someone who has ceased to engage in penal activity and is leading a law-abiding life. These policies explain why, even when a time limitation is extended by one of the provisions in this section, an upper limit is set.
Commentary on HRS § 701-108 (1993). Similarly, the United States Supreme Court has noted:
The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.
Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 859-60, 25 L.Ed.2d 156 (1970). For these reasons, the statute of limitation occupies the status of a substantive statutory right. Because of the importance of the statute of limitations, it should not be subject to forfeiture.
Additionally, I believe that forfeiture of a component of the prosecution’s prima facie case is disfavored under Hawai'i case law. In State v. Black, 66 Haw. 530, 668 P.2d 32 (1983), this court refused to allow the “waiver” (i.e., forfeiture) of proof of-venue. We held that the defendant did not lose his right to insist on proof of venue simply because he had failed to raise the issue prior to his motion for judgment of acquittal. Id. at 531, 668 P.2d at 33. This court subsequently stated, in State v. Kwak, 80 Hawai'i 297, 909 P.2d 1112 (1995) (opinion on motion for reconsideration), that if the prosecution fails to meet its burden of proving a prima facie case, the trial court is required, sua sponte, to grant a judgment of acquittal under HRPP Rule 29, even if the defendant has not so moved. Id. at 305, 909 P.2d at 1120 (quoting State v. Miyashiro, 3 Haw.App. 229, 232-33, 647 P.2d 302, 304-05, cert. denied, 65 *123Haw. 683 (1982)). In other words, a defendant does not forfeit his right to proof of the prosecution’s prima facie case as a precondition to conviction, simply by failing to move for judgment of acquittal. Together, Black and Kwak indicate that Hawaii law disfavors the forfeiture of components of the prosecution’s prima facie case.
In addition, the forfeiture approach would create an unfortunate loophole that could virtually nullify the effectiveness of the statute of limitations. Under the forfeiture approach, it would be theoretically possible for prosecutors to circumvent the statute of limitations by deliberately overcharging a defendant in the expectation of convicting him of an included offense. When the defendant requests an included offense instruction, he would forfeit the statute of limitations defense and become subject to conviction of the included offense. Thus, the prosecution could convict the defendant of an offense that would ordinarily be time-barred if it were charged directly. The forfeiture approach therefore encourages prosecutors to attempt to circumvent our statutes.4
Because of the important place the statute of limitations occupies within our statutory scheme, the reluctance reflected in our case law toward allowing forfeiture of the components of the prosecution’s prima facie case, and the policy of discouraging the circumvention of our laws, I would reject the forfeiture approach.
In contrast to the first two approaches, the waiver approach has a number of advantages. There are many situations in which a defendant might decide that it is in his or her own best interest to waive the statute of limitations:
Before the statute of limitations has run, a defendant might make a calculated decision to waive the statute when it is about to run in order to gain time for plea bargaining. A defendant might also waive his limitations defense in order to vindicate his good name in the face of a serious and publicly known charge barred by statute.... Finally, a defendant might wish to plead guilty or nolo contendere to an offense after the statute of limitations has run in order to unburden his conscience or ... to avoid going to trial on the greater charge which has no statute of limitations.
Padie, 594 P.2d at 56-57 n. 16. See also Waiver: Wild, supra, at 1554-55. Because the purpose of the statute of limitations is primarily to protect the defendant, the defendant should retain the prerogative of waiving the statute if it perceived to be in his or her own interest to do so. Id. at 1555.
Secondly, this court has long permitted defendants to waive constitutional rights, provided it is done knowingly, intelligently, and voluntarily. See, e.g., State v. Merino, 81 Hawai'i 198, 219, 915 P.2d 672, 693 (1996) (right to counsel); Tachibana v. State, 79 Hawai'i 226, 233-34, 900 P.2d 1293, 1300-01 (1995) (right to testify); State v. Hoey, 77 Hawai'i 17, 33, 881 P.2d 504, 520 (1994) (Miranda rights); State v. Young, 73 Haw. 217, 220-21, 830 P.2d 512, 514 (1992) (right to jury trial). If constitutional rights are waiva-ble, then a statutory right such as the statute of limitations should be waivable as well. “A leap of logic is not required to maintain that if an accused can waive constitutional rights, he certainly can waive one conferred by the statute of limitations!!]” Littlejohn, 508 A.2d at 1381 (citing Wild, 551 F.2d at 424).
Therefore, I would adopt the waiver approach and hold that a defendant may waive the statute of limitation as long as it is done knowingly, intelligently, and voluntarily. However, because of the importance of the statute of limitations, I would also hold that the trial court must engage in an on-the-record colloquy with the defendant in order to ensure that the waiver is indeed knowing, intelligent, and voluntary. In the past, Hawaii courts have often employed the on-the-record colloquy as a means of protecting the rights of defendants. Tachibana, 79 Hawai'i at 235-36, 900 P.2d at 1302-03 (citing State v. Kupau, 76 Hawai'i 387, 395-96 n. 13, 879 P.2d 492, 500-01 n. 13 (1994); State v. Ibuos, *12475 Haw. 118, 121, 857 P.2d 576, 578 (1993); State v. Vares, 71 Haw. 617, 622-23, 801 P.2d 555, 558 (1990); Conner v. State, 9 Haw.App. 122, 126, 826 P.2d 440, 442-43 (1992)). Thus, this procedure should be required for waiver of the statute of limitations as well.
Waivers would be most likely to occur in the context of a guilty or nolo contendere plea, possibly pursuant to a plea agreement. In such situations, the trial court, while conducting the colloquy required under HRPP Rule ll,5 should ensure that the defendant is aware of the statute of limitations and is waiving it voluntarily and intelligently.6 If,' however, the defendant pleads not guilty and refuses to waive the statute, or if waiver is somehow defective, the defendant’s statute of limitations defense should remain intact. Assuming that: the case goes to trial, the question then becomes whether the defendant is entitled to an included offense jury instruction for the time-barred offense.
B. Whether an Included Offense Jury Instruction is Required
The second issue to be addressed, ie., whether an included offense jury instruction is required, has been addressed by courts in other jurisdictions. In some states, trial courts may refuse to give included offense instructions if the statute of limitations has expired. See, e.g., People v. Diedrich, 31 Cal.3d 263, 182 Cal.Rptr. 354, 643 P.2d 971 (1982); Tucker, supra. In other states, however, trial courts must give included offense instructions despite expiration of the statute of limitations. See, e.g., State v. Short, 131 N.J. 47, 618 A.2d 316 (1993); Muentner, supra.
Although cases from other jurisdictions provide useful guidance, I believe that our decision on this issue should be consistent with our prior case law on included offense jury instructions. In State v. Kupau, 76 Hawai'i 387, 879 P.2d 492 (1994), we reiterated the importance of included offense instructions. In Kupau, the defendant appealed his conviction of assault in the second degree, claiming that the trial court committed plain error by failing to instruct the jury sua sponte on the included offense of assault in the third degree. Id. at 388, 879 P.2d at 493. The Kupau court stated that
it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he or she shall state to them fully the law applicable to the facts. And faced with inaccurate or incomplete instructions, the trial court has a duty to, with the aid of counsel, either correct the defective instruction or to otherwise incorporate it into its oum instruc*125tion. In other words, the ultimate responsibility properly to instruct the jury lies with the circuit court and not with trial counsel.
Kupau, 76 Hawai'i at 395, 879 P.2d at 500 (quoting Briones v. State, 74 Haw. 442, 472-73, 848 P.2d 966, 980 (1993) (Levinson, J., concurring)) (internal citations and quotation marks omitted) (emphasis in original).
However, because both the prosecution and the defense may desire or object to included offense instructions for tactical reasons, the Kupau court was unwilling to impose a per se obligation upon the trial court to give all possible included offense instructions. Id. In reconciling the competing interests of the prosecution and defendants, as well as ensuring that juries are appropriately instructed in criminal cases, the court held as follows:
The trial judge must bring all included offense instructions that are supported by the evidence to the attention of the parties. The trial judge must then give each such instruction to the jury unless (1) the prosecution does not request that included instructions be given and (2) the defendant specifically objects to the included offense instructions for tactical reasons. If the prosecution does not make a request and the defendant makes a tactical objection, the trial judge must then exercise his or her discretion as to whether the included offense instructions should be given. The trial judge’s discretion should be guided by the nature of the evidence presented during the trial, as well as the extent to which the defendant appears to understand the risks involved.
Id. at 395-96, 879 P.2d at 500-01 (footnotes omitted) (emphasis added)-. Thus, a trial court is obligated (unless the prosecution remains silent and the defendant objects) to instruct the jury regarding included offenses that are supported by the evidence.
The question then becomes whether a time-barred included offense is an offense that is “supported by the evidence.” I believe that it is. I would hold that a tidal court is obligated to provide an included offense instruction even if the statute of limitations for the included offense has expired.
■ The term “supported by the evidence” in Kupau refers to the second holding in that case: the trial court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. Kupau, 76 Hawai'i at 390-92, 879 P.2d at 495-97. See also HRS § 701-109(5) (1985).7 In determining whether there was a “rational basis” for an included offense, the Kupau court looked only at the elements of the offense and the state of mind required: “HRS § 701-114 [ (l)(a) and (b) (1985) ] requires proof beyond a reasonable doubt of each element of the offense, as well as ‘[the] state of mind required to establish each element of the offense.’ ” Kupau, 76 Hawai'i at 390, 879 P.2d at 495 (alterations in original). Kupau made no mention of HRS § 701-114(l)(c), (d), or (e)—jurisdiction, venue, or the statute of limitations, respectively. Therefore, the holding of Kupau does not in fact require the trial court to look at jurisdiction, venue, or the statute of limitations. Indeed, from the omission of these factors, one can infer that only the elements of the offense and the necessary state of mind are relevant in determining whether an included offense instruction should be given. In any case, the most that can be said of the holding in Kupau, for present purposes, is that it leaves the issue open.
Even assuming arguendo that the actual holding of Ku/pau does not control the present case, the policies underlying Kupau definitely do. Included offense instructions serve two purposes: (1) they foster the search for the truth and (2) they ensure that the defendant has received a fair trial. The Intermediate Court of Appeals (ICA) discussed these policies in its own Kupau decision:
*126The ultímate goal of criminal proceedings should be a solemn search for the truth, so that one accused of crime will be acquitted or convicted depending on the sufficiency of the evidence when measured against the reasonable-doubt standard of proof. Moreover, if the defendant’s alleged conduct constitutes a lesser-included crime within the offense charged, and the defendant has received sufficient notice thereof to adequately prepare his defense, he will have received that quantum fairness to which he is entitled, under principles of due process.
State v. Kupau, 10 Haw.App. 503, 516, 879 P.2d 559, 564-65 (quoting Edward G. Mascolo, Procedural Due Process and the Lesser-Included Offense Doctrine, Alb. L.Rev. 263, 299-300 (1986)) (emphasis added), aff'd, 76 Hawai'i 387, 879 P.2d 492 (1994).
The search for the truth involves the determination of what particular crime the defendant actually committed—Did the defendant commit the offense charged or did he actually commit an included offense? The jury makes this determination by comparing the facts of the case to the definitions of crimes in the Penal Code. The elements of the offense and the state of mind are included within the statutory definitions of crimes.8 Therefore, these two factors are relevant to the factual determination made by the jury. However, jurisdiction, venue, and the statute of limitations have nothing to do with the determination of what crime the defendant committed. These factors concern the legal question of whether the court has the power to punish the defendant or whether the defendant has the right not to be punished, not the factual question of what crime the defendant committed. When the trial judge decides whether to give an included offense instruction, it is proper for the judge to require sufficient evidence as to the elements of the offense and the state of mind. The judge should not have to deliver an instruction if the evidence is so weak that the jury could not possibly decide that the defendant committed that offense. However, it is not proper for the judge to require evidence as to jurisdiction, venue, and the statute of limitations because these factors are irrelevant to the factual determination that the jury is to make. Indeed, if the judge refuses to deliver an included offense instruction because of a defect in jurisdiction, venue, or the statute of limitations, the judge would be impeding the determination of the truth. Therefore, jurisdiction, venue, and the statute of limitations should not be considered in deciding whether an included offense instruction is warranted.
Courts in other jurisdictions have reached similar conclusions. In State v. Muentner, 138 Wis.2d 374, 406 N.W.2d 415 (1987), the Wisconsin Supreme Court held:
[I]n determining whether a lesser included instruction should be given ... the first step [is] to determine, as a matter of law, whether the offense was lesser included. The second step is to determine whether there is a reasonable basis in the evidence for an acquittal on the greater charge and for a conviction on the lesser charge.... [I]n determining whether a lesser included instruction should be given, the second step involves a weighing of the evidence which would be presented to the jury. Thus, the court is assessing the likelihood that the jury would find all the elements of the particular crime. This determination does not relate to the effect the running of a statute of limitations may have....
We conclude that the running of the statute of limitations does not preclude, the jury from reaching a verdict convicting the defendant of a crime; it rather precludes the trial court from entering a judgment of conviction on the finding of guilt.
Id. 406 N.W.2d at 421. Thus, the jury must be allowed to make its factual determination, through rendering a verdict, of what crime the defendant has committed. The statute of *127limitations should not prevent the jury from rendering its verdict; rather, the statute functions by preventing the trial court from entering a judgment of conviction. Our own rules and statutes support the distinction between a verdict of acquittal/conviction and a judgment of aequittal/conviction. HRS § 701-109(5) states that an included offense instruction is not required unless there is a rational basis for a verdict acquitting the defendant of the greater offense and convicting him of the included offense.9 As noted in the discussion supra, the rational basis is determined by examining only the elements of the offense and the state of mind required. In contrast, HRPP Rule 29 authorizes the trial court to grant a Judgment of acquittal if the prosecution fails to prove the components of the prima facie case, i.e., all the factors enumerated in HRS § 701-114, including the statute of limitations.10
Another reason the search for the truth is implicated is that if trial courts are not required to give instructions on time-barred included offenses, the truth will never be determined in many cases. No one will ever know what the jury would have decided if it had been given the option of rendering a verdict on an included offense.
The second purpose served by included offense instructions, protecting the defendant’s right to a fair trial, is implicated by the risk that the defendant will be convicted of a crime he did not commit. As we noted in Kupau:
[I]f a jury is instructed only with respect to the offense charged and one or more of the jurors “believed that the defendant committed some crime, but not necessarily the one charged,” the absence of included offense instructions could cause them to “convict the defendant [of] the greater charge in order not to let the defendant go free or cause a mistrial.”
Kupau, 76 Hawai'i at 394, 879 P.2d at 499. To convict a defendant of a crime that he did not commit would be fundamentally unfair. Included offense instructions help to ensure that if the defendant is convicted, he is convicted of the crime he did commit and not a more serious offense. If trial courts are not required to give instructions on time-barred included offenses, a defendant could be convicted of a greater offense that he did not commit. Therefore, the defendant would be deprived of a fair trial.
Critics of this approach argue, based on Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), that delivering an included offense instruction when the defendant will be acquitted upon a guilty verdict constitutes “tricking the jury” and undermines the public’s confidence in the criminal justice system. However, in my view, invalidating an included offense conviction in such cases no more involves “tricking the jury” than a post-verdict judgment of acquittal in any other case. Under HRPP Rule 29, the trial court may grant a judgment of acquittal, even after a guilty verdict, if the prosecution has failed to establish its prima facie case. In ordinary cases (ie., not involving an included offense), the jury is given instructions on the charged offense and is allowed to render a guilty verdict, notwithstanding that the verdict may be set aside by the trial court and a judgment of acquittal entered. Under the approach advocated here, trial courts would simply be doing the same thing for included offenses. In both circumstances, the court is simply acquitting the defendant because the prosecution has failed to prove its prima facie case.
Furthermore, it should be recognized that the argument that public confidence would be undermined is essentially a policy argument. This policy should be balanced against the policies underlying HRS § 701-108, ie., preventing prosecutions based on stale evidence, permitting repose, and encouraging law enforcement officials to investigate criminal activity promptly.
For the foregoing reasons, I would hold that a trial court must give an included offense instruction even if the statute of limitations for the included offense has expired.
*128C. Summary
In summary, I would hold that the statute of limitations may be waived but may not be forfeited. In my view, if a defendant pleads guilty or nolo contendere and, pursuant to the plea, he knowingly, intelligently, and voluntarily waives the statute of limitations, the defendant can be convicted of a time-barred offense. The trial court should be required to ensure that the waiver meets these requirements by conducting an on-the-record colloquy with the defendant. The defendant should not automatically forfeit the statute of limitations defense simply by failing to raise it, by requesting an included offense jury instruction, or by any other action or inaction. If the defendant pleads not guilty and refuses to waive the statute of limitations, or if waiver is otherwise defective, the defendant should retain the statute of limitations defense. If the defendant then goes to trial, he or she should be entitled to an included offense instruction despite the expiration of the statute of limitations. If the jury renders a guilty verdict on the time-barred included offense, the court should be required to enter a judgment of acquittal.
This approach is similar to that followed by the Wisconsin Supreme Court. In Wisconsin, the statute of limitations may be waived as long as it is done by an express waiver. Muentner, 406 N.W.2d at 419 (citing State v. Pohlhammer, 78 Wis.2d 516, 254 N.W.2d 478 (1977)). In Muentner, however, the defendant pled not guilty and specifically refused to waive the statute. Id. Muentner, therefore, exemplifies the procedure that trial courts should follow in the event that the defendant does not waive the statute of limitations. In such a situation, the trial court must deliver included offense jury instructions even for time-barred offenses. Id. 406 N.W.2d at 420-21. If the jury finds the defendant guilty of the included offenses, the defendant must be acquitted. Id. at 423.
The essential problem in cases dealing with time-barred included offenses is that two separate and distinct rights are involved: (1) the right to a fair trial (as protected by included offense instructions) and (2) the right to a statute of limitations defense. To deny a defendant an included offense instruction or to cause a defendant to forfeit the statute of limitations
overlooks the fundamental injustice entailed in forcing a defendant to choose between two critical substantive rights. A defendant’s right to a fair trial cannot be conditioned on his or her giving up a vested right to a statute of limitations defense, and a defendant’s vested right to a statute of limitations cannot be conditioned on his or her giving up the right to a fair trial.
Short, 618 A.2d at 323. The forfeiture approach preserves the defendant’s right to a fair trial, but at the expense of the defendant’s right to a statute of limitations defense. Denying the defendant an included offense instruction preserves the defendant’s right to a statute of limitations defense, but at the expense of the defendant’s right to a fair trial. However, the approach advocated here protects both rights at the expense of neither.
D. The Present Case
In the present case, the statute of limitations had not expired for the offense for which Timoteo was charged, ie., burglary in the first degree, but had expired for 'an included offense, ie., simple trespass. Timoteo pled not guilty and there is no indication in the record that he knowingly, intelligently, and voluntarily waived the statute of limitations defense. Indeed, Timoteo affirmatively asserted the defense in a pre-trial motion and in a post-verdict motion for judgment of acquittal. Timoteo should not be required to forfeit the statute of limitations defense simply by requesting an included offense instruction. Simple trespass is an included offense of burglary in the first degree. See HRS § 701-109(4)(a) & (c) (1985).11 Cf. *129State v. Williams, 6 Haw.App. 17, 708 P.2d 834 (1985). There was a rational basis for an acquittal on burglary in the first degree and a guilty verdict on simple trespass because the evidence conflicted as to whether Timo-teo actually entered Marc Kaanoi’s house and whether he intended to commit a crime. Thus, I would hold that the trial court properly delivered the included offense instruction. Subsequently, the jury found Timoteo guilty of simple trespass. Because the statute of limitations period for simple trespass had expired, I believe the trial court properly granted Timoteo’s motion for judgment of acquittal.
II. CONCLUSION
Accordingly, I would affirm the circuit court’s order granting Timoteo’s motion.
. In Cowan, the California Supreme Court held that defendants can waive the statute of limitations but specifically refused to decide whether a defendant can forfeit the defense as well. Cowan, 58 Cal.Rptr.2d at 462, 926 P.2d at 442. Justice Brown wrote an opinion concurring and dissenting in part advocating adoption of the forfeiture approach. Id. at 468, 926 P.2d at 448. Justice Chin, the author of the majority opinion, wrote a separate concurring opinion arguing that the court should allow waiver but not forfeiture. Id. at 464, 926 P.2d at 444.
. For the text of HRS § 701-114, see infra this section.
. HRPP Rule 29 provides in relevant part:
MOTION FOR JUDGMENT OF ACQUITTAL.
(a) Motion Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses alleged in the charge after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses....
[[Image here]]
(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 10 days after the jury is discharged or within such further time as the court may fix *122during the 10-day period. If a verdict- of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.
. Although the prosecution could also overcharge under the waiver approach, the impact of doing so is mitigated by the requirement that the waiver be knowing, intelligent, and voluntary. Thus, the prosecution might attempt to overcharge, but a defendant could defeat the attempt simply by refusing to waive.
. HRPP Rule 11 provides in relevant part:
(c) Advice to Defendant. The court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that he understands the following:
(1) the nature of the charge to which the plea is offered; and
(2) the maximum penalty provided by law, and the maximum sentence of extended term of imprisonment, which may be imposed for the offense to which the plea is offered; and
(3) that he has the right to plead not guilty, or to persist in that plea if it has already been made; and
(4) that if he pleads guilty or nolo contende-re there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and
(5) that if he is not a citizen of the United States, a conviction of the offense for which he has been charged may have the consequences of deportation, exclusion form admission to the United States, or denial of naturalization pursuant to the laws of the United States.
(d) Insuring that the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to 'plead guilty or nolo contendere results from any plea agreement.
. Of course, in any other situation, the waiver would have to be knowing, intelligent, and voluntary, and the required colloquy should be conducted at the earliest reasonable opportunity. For example, if a defendant wants to vindicate his good name in the face of a serious and publicly known charge, he might want to waive his statute of limitations defense but plead not guilty. In such a situation, the court should ensure that the waiver is knowing, intelligent, and voluntary through an on-thc-rccord colloquy as soon as the defendant’s intentions become clear.
. HRS § 701-109(5) (1985) provides:
(5) The court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the charge for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
. For example, simple trespass is defined in HRS § 708-815 (1993) as follows:
Simple trespass. (1) A person commits the offense of simple trespass if the person knowingly enters or remains unlawfully in or upon premises.
(2) Simple trespass is a violation.
The elements of the offense and the state of mind are included in the statutory definition. The elements of the offense arc "entering] or remain[ing] unlawfully in or upon premises.” The state of mind required is "knowingly.”
. See supra note 7.
. See supra note 3.
. HRS § 701-109 (1985) provides in relevant part:
(4) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
[[Image here]]
(c) It differs from the offense charged only in the respect that a less serious injury or *129risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree culpability suffices to establish its commission.