Miranda Rights have come a long way

The theme of this year’s Law Day will be Miranda Rights. We’ve come a long way in my lifetime in Hawaii.

In December 1968, the late Judge Donald Tsukiyama and I started the Public Defender program in Hawaii. We were both Legal Aid lawyers and had a contract with the Judiciary to provide criminal defense services for indigent defendants on Oahu. This was the result of Gideon v. Wainwright (1963) when the U.S. Supreme Court unanimously held that an accused had a right to an attorney even if he could not afford to hire one. This extended the right to counsel under the 5th and 6th Amendments to the U.S. Constitution.

Initially, our Hawaii courts applied this ruling only to persons charged with felony offenses (crimes punishable by more than one year in jail). Personal injury lawyers in private practice were appointed to represent such indigent defendants. Later, appointments of counsel were extended to misdemeanor crimes. That’s when we got involved. Later, in 1972, we formed the Public Defender Office and became a State of Hawaii Department.

In those days, Don was busy building the office and doing all the administrative work. I held up our end in the courts trying cases. The office grew, adding more attorneys and, of course, more cases. Brook Hart later became the head of the office. Burning out from trying back-to-back jury trials, I was persuaded to come to Kauai to “watch the grass grow.”

In those days, defendants had the right to a lawyer, but not a right to know who the witnesses were or what the police reports recorded as witness statements until after the witness testified in court under direct examination. We would have a brief recess so that defense counsel could read the report and formulate a cross examination. It was trial by surprise and ambush. That changed. Defense lawyers now have a right to “discovery” (list of prosecution witnesses and their statements). This leveled the playing field.

Early in my career on Kauai, a distraught mother came to my office to seek my help. She related that her teen son had been arrested and was in custody at the Kauai Police Station. I immediately went there and was greeted by the detective in charge. He told me that I was not allowed to see the kid until he got to court. His erroneous interpretation caused case to be dismissed; the kid’s statement was ruled inadmissible. Years later, that same detective called on me for help to represent his nephew, who was also a Kauai police detective, who had been indicted for burglary. We went to trial and the nephew was acquitted. The detective’s attitude toward me went from dislike to respect!

I look back at my 30 years, about 500 jury trials and 5,000 bench trials, as a criminal defense lawyer, filled with gratitude that I was given that opportunity to help so many members of our community.

The sound of Gideon’s Trumpet and recitation of Miranda Rights have come a long way in Hawaii, including Kauai.

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