Hawaiʻi’s Mandatory Pretrial Evidentiary Voluntariness Hearing Rule for Inculpatory Statements (and the New-Trial Remedy), with State v. Goers Partially Overruled

I. Introduction

In State v. Tolentino (June 30, 2026), the Supreme Court of Hawaiʻi considered whether a circuit court may admit a defendant’s inculpatory out-of-court statement—here, an apology (“I’m sorry. I was just trying to get a Zip Pac.”)—without first conducting an evidentiary hearing to determine voluntariness.

The case arose from a late-night Honolulu traffic stop that escalated into a foot chase and a physical struggle. The State prosecuted Henry K. Tolentino for assault against a law enforcement officer. The prosecution introduced Tolentino’s statement at trial as an “excited utterance” under HRE Rule 803(b)(2), and argued it showed consciousness of wrongdoing. No pretrial voluntariness hearing occurred; the court made a brief voluntariness determination based on representations rather than sworn testimony and cross-examination.

The Intermediate Court of Appeals (ICA) affirmed, reasoning that HRS § 621-26 required only a voluntariness “determination,” not a separate evidentiary hearing. The Supreme Court accepted certiorari to decide (1) whether Hawaiʻi law requires a pretrial evidentiary voluntariness hearing before the factfinder hears an inculpatory statement, and (2) the proper remedy when no such hearing occurred.

II. Summary of the Opinion

The Supreme Court vacated Tolentino’s conviction and remanded for a new trial. It held:

  • Article I, section 5 (due process), Article I, section 10 (right against self-incrimination), and HRS § 621-26 independently require a pretrial evidentiary hearing establishing voluntariness before an inculpatory statement may be heard by the factfinder.
  • An evidentiary voluntariness hearing must include sworn testimony, cross-examination, and evidence-based findings; “argument is not evidence” and “proffers are not evidence.”
  • The trial court and ICA erred by treating admission under the excited utterance hearsay exception as a substitute for the distinct constitutional and statutory voluntariness inquiry.
  • The error was not harmless beyond a reasonable doubt, given the State’s use of the apology as proof of guilt.
  • Rejecting the dissent’s proposed post-trial hearing remedy, the Court held Hawaiʻi law requires a new trial, and it overruled State v. Goers “to the extent it permits voluntariness determinations after trial begins.”
  • The Court articulated a forward-looking framework: it defined “inculpatory statement” broadly and specified procedural features—timing, burden, defendant’s hearing-testimony protections, colloquies (including for waiver), and required findings.

III. Analysis

A. Precedents Cited

1. Voluntariness as a foundational admissibility requirement

  • Territory v. Young anchored the baseline principle: “Incriminating statements, to be admissible in evidence, must be voluntary.” The Court used this to frame voluntariness as a threshold requirement, not a discretionary evidentiary consideration.
  • State v. Baker supplied two core propositions: (i) Hawaiʻi’s voluntariness doctrine protects “free and unconstrained choice,” and (ii) the “question of coercion is separate from that of reliability,” supporting the Court’s rejection of hearsay reliability (e.g., excited utterance) as a stand-in for voluntariness.

2. Due process foundations and the necessity of a hearing

  • State v. Bowe was pivotal to the Court’s due process framing: involuntary statements are “inherently untrustworthy” because free will may be overborne; due process emphasizes the right to make “vital choices voluntarily.” The Court also relied on Bowe to stress that voluntariness concerns may arise even beyond classic interrogation settings.
  • State v. Eli was cited for the proposition that, under article I, section 5, due process requires statements to be voluntary for admissibility.
  • Ex parte Palakiko and State v. Shon demonstrated Hawaiʻi’s longstanding linkage between voluntariness and due process: use of an involuntary confession/offers “denial of due process” and “offends due process.”
  • State v. Wakinekona provided the Court’s structured rationale for exclusion—reliability, accusatorial system integrity, and the principle that the State should not break the law to secure convictions—each tied to fundamental fairness concerns.
  • State v. Green supplied the procedural principle: the trial judge must determine admissibility of an inculpatory statement outside the jury’s presence and before the jury is exposed, supporting the Court’s sequencing requirement.
  • State v. Naititi, relying on Jackson v. Denno, was used for two linked points: (i) failure to conduct a voluntariness hearing is a denial of due process, and (ii) voluntariness hearing obligations under HRS § 621-26 apply regardless of which party initiates the issue (including sua sponte duty by the trial court).
  • Jackson v. Denno was treated as important but not controlling on remedy; the Court emphasized Jackson’s federal due process context and its accommodation to federal-state remedial constraints.
  • State v. Mitake (identification evidence) supported the Court’s broader point that due process requires procedures yielding “a fair hearing and a reliable determination” before prejudicial evidence reaches the factfinder.
  • Interest of JH and State v. Zuffante were invoked to articulate Hawaiʻi due process as context-sensitive and “agile,” requiring procedures “necessary to preserve the integrity of the judicial process,” and to underscore that Hawaiʻi’s constitutional safeguards can exceed federal baselines.

3. Article I, section 10 and voluntariness as a safeguard of autonomy

  • State v. Kelekolio was central: the right against self-incrimination requires that “extrajudicial admissions of guilt” be voluntary; and voluntariness turns on the “totality of circumstances,” including “mental and physical condition.” It also supported interpreting “confession” broadly to include “inculpatory statements.”
  • State v. Matsumoto and State v. Kamana'o reinforced that coercion and autonomy/dignity interests are analyzed within article I, section 10’s framework.
  • Commonwealth v. Peterson (cited in Kelekolio) illustrated that involuntariness can arise from physical trauma and impairment even absent classic coercive interrogation, supporting Tolentino’s emphasis that “custody/interrogation” can be “beside the point.”
  • State v. Santiago and State v. Hewitt (Miranda warnings), Tachibana v. State and State v. Pomroy (colloquies protecting testimonial rights), and State v. Zuffante (videorecording custodial interrogations) were used to place voluntariness hearings within Hawaiʻi’s tradition of constitutionally grounded procedural safeguards.

4. Evidentiary hearing protections and defendant testimony

  • State v. Chang supplied a key procedural protection: a defendant may testify at a suppression-type hearing without that testimony being used against them at trial, and courts must inform defendants so the choice is knowing and voluntary. Tolentino extends this logic to voluntariness hearings and uses Chang to reject post-trial “cures” that undermine the pretrial posture needed for meaningful exercise of that protection.

5. Statutory grounding: HRS § 621-26’s breadth and sequencing

  • The King v. Paakaula provided historical lineage from the Kingdom era for the voluntariness requirement and reinforced the Court’s view that HRS § 621-26 carries forward deep common-law roots.
  • State v. Green and State v. Kelekolio again mattered because they interpret “confession” in HRS § 621-26 to reach “inculpatory statements,” not merely full confessions, preventing the statute from being “defang[ed].”

6. Standard of review and harmless error

  • State v. Kazanas supported rigorous, independent appellate review of voluntariness under the totality of circumstances, underscoring why an evidentiary record is essential.
  • State v. Aplaca and State v. Hirata supplied the “reasonable possibility” formulation for harmless-beyond-a-reasonable-doubt review, including Hirata’s point that a different outcome includes a hung jury, and that it may be enough that “a single juror would have voted differently.”
  • State v. Baker was used to confirm the harmlessness framework for erroneously admitted involuntary statements and to explain why an accused’s words are uniquely powerful evidence.

7. Remedy, state constitutional independence, and partial overruling

  • State v. Goers was the key remedial precedent the Court limited. Goers, following Jackson, had allowed voluntariness determinations “at any time prior to the admission” and (as the Court read it) enabled during-trial/post-trial approaches inconsistent with HRS § 621-26 and Hawaiʻi constitutional requirements. Tolentino overruled Goers “to the extent it permits voluntariness determinations after trial begins.”
  • State v. Wilson and State v. Kaluna were cited for the Court’s duty to interpret the Hawaiʻi Constitution independently from federal doctrine; Hilo Bay Marina, LLC v. State was cited for interpretive methodology and Hawaiʻi’s constitutional context (including values like the Aloha Spirit).

8. The Court’s “framework” and response to the dissent’s “dicta” critique

  • The Court cited a line of cases to justify announcing operative procedural rules beyond the immediate facts: State v. Kaneaiakala (eyewitness identification framework), State v. Kekona (overruled by Zuffante), State v. Padilla (partly overruled), State v. Lewis (right-to-testify advisement timing), State v. Ketchum (bright-line custody rule), State v. Tetu (crime scene access as a due process/right-to-present-defense issue), and State v. Glenn (colloquy requirement for penal-responsibility waiver).
  • State v. Solomon and Wong v. Among were used to contrast voluntariness-hearing colloquies with plea colloquies, emphasizing differing stakes.
  • State v. Torres (right not to testify), and again Tachibana v. State, supported the Court’s comparison of colloquy gravity.
  • Provident Funding Assocs., L.P. v. Gardner (quoting Gakiya v. Hallmark Props., Inc.) supported the proposition that stipulations may be set aside to avoid “manifest injustice,” used to explain why courts retain power to order a hearing even where voluntariness is “waived” or stipulated.
  • State v. Martin provided the burden of proof: the prosecution must prove voluntariness by a preponderance of the evidence.
  • Schwartz v. State was cited to define dicta as what is “not directly upon the question before the court,” supporting the majority’s view that defining “inculpatory statement” and outlining the procedure were necessary to decide the appeal.

B. Legal Reasoning

1. The core holding: “words spoken involuntarily may not” convict

Tolentino’s reasoning begins with the separation between reliability and voluntariness. A statement can be reliable (even corroborated or spontaneous) yet still constitutionally inadmissible if it was not the product of “free and unconstrained choice” (State v. Baker). This distinction drives the Court’s conclusion that hearsay doctrine—especially the “excited utterance” rationale that stress reduces fabrication—cannot substitute for a voluntariness determination.

2. Independent sources of the hearing requirement

The Court emphasized three independent mandates:

  1. Article I, section 5 (Due process): Due process requires a fair trial, and fair trials are incompatible with involuntary statements. Critically, the Court held that the absence of the hearing itself is a due process violation—procedural due process—because once the jury hears the statement, “the damage is done” (State v. Green; State v. Naititi citing Jackson v. Denno).
  2. Article I, section 10 (Self-incrimination): The right not to be compelled to be a witness against oneself is fundamentally about autonomy and dignity. A voluntariness hearing enforces that right by preventing the State from using words that were not freely chosen (State v. Kelekolio; State v. Kamana'o).
  3. HRS § 621-26: The Court read the statute’s text—“No,” “made to appear,” “in fact,” and “first”—as requiring proof by evidence before admission, not a conclusory ruling based on lawyer proffers. The statute’s sequence requirement (“first”) made timing dispositive.

3. What an evidentiary “hearing” means

Tolentino makes “hearing” concrete: a constitutionally “reliable determination” requires (at minimum) oath, cross-examination, and evidence-based findings. This directly repudiates the ICA’s view that a voluntariness “determination” alone suffices.

4. The remedial choice: why a new trial, not a belated hearing

The Court rejected the dissent’s proposed post-trial remand for a voluntariness hearing (the Jackson/Goers approach) on multiple grounds:

  • State constitutional independence: Jackson v. Denno is federal due process; Hawaiʻi’s constitution is “sovereign” and must be construed independently (State v. Wilson; State v. Kaluna; State v. Zuffante).
  • Statutory absolutism: HRS § 621-26 forbids receiving the statement until voluntariness is “first made to appear,” making a belated cure inconsistent with the statute’s sequence.
  • Procedural injury is complete once the jury hears the statement without the hearing: the violation does not depend on whether the statement ultimately proves voluntary.
  • Loss of pretrial protections recognized in State v. Chang: the right to testify at the hearing without trial use is meaningful only in the pretrial posture; a post-conviction hearing alters the strategic and practical context in which the right is exercised.
  • Time and record degradation: years-late reconstruction of the “granular” facts bearing on voluntariness undermines the reliability due process demands.
  • Harmlessness: because the State used the apology to argue guilt, the Court found a “reasonable possibility” it contributed to the verdict (State v. Baker; State v. Aplaca; State v. Hirata).

5. Partial overruling of State v. Goers

The Court resolved a conflict between Goers’ flexibility and Chang’s insistence on separable pretrial protections. It held that “the constitution and the statute require a pretrial hearing that occurs before trial,” and therefore “overrule[d] State v. Goers to the extent it permits voluntariness determinations after trial begins.”

6. The prospective framework: defining “inculpatory statement” and prescribing procedures

To guide trial courts, the Court:

  • Defined “inculpatory statement” broadly, adopting the State v. Kelekolio definition: any statement by a defendant that “admits a fact, circumstance or involvement which tends to establish guilt or from which guilt may be inferred.” The Court listed examples (express admissions, ambiguous admissions, and false statements offered to show consciousness of guilt) and emphasized context and prosecutorial intended use.
  • Announced six essential features of voluntariness hearings, including: (i) pretrial timing for known statements (with a narrow exception for surprise statements, still requiring determination outside the jury’s presence per State v. Green), (ii) motion by either party or sua sponte per State v. Naititi, (iii) evidentiary development and the State’s burden by preponderance per State v. Martin, (iv) defendant’s right to testify without trial use per State v. Chang, (v) two colloquies (one before defendant decides to testify at the hearing; another for waiver of the hearing), and (vi) findings of fact and conclusions of law.

C. Impact

1. Trial court practice and case management

  • Default expectation of a pretrial evidentiary hearing whenever the State intends to use a known inculpatory statement as evidence of guilt (especially in light of HRPP Rule 16(b)(1)(ii) disclosure).
  • Reduced reliance on motions in limine or hearsay rulings as substitutes; judges must separately and first litigate voluntariness on an evidentiary record.
  • Increased sua sponte duties when voluntariness questions appear even without a motion (State v. Naititi).

2. Prosecutorial burdens and strategic shifts

  • The State must be prepared to prove voluntariness by evidence (not proffer) and should expect to call witnesses and create a record early.
  • The State cannot treat “spontaneous” or “excited” statements as low-risk; voluntariness must still be proven even absent interrogation.

3. Defense rights and litigation posture

  • Defendants gain a clarified, enforceable opportunity to contest voluntariness before trial, including the ability to testify at the hearing insulated from trial use (State v. Chang).
  • The new-trial remedy increases the practical importance of timely hearings, because failure to hold one is not easily “cured” after the fact.

4. Appellate review and remedy doctrine

  • The decision strengthens state-constitutional remedial independence and limits reliance on federal remedial accommodations associated with Jackson v. Denno.
  • By partially overruling State v. Goers, Tolentino clarifies the timeline: voluntariness determinations must be pretrial for known statements.

IV. Complex Concepts Simplified

  • Voluntariness (constitutional/statutory): Whether the defendant’s statement was the product of free choice under the totality of the circumstances—considering factors like pain, fear, confusion, mental/physical condition—not merely whether police asked a question.
  • Excited utterance (evidence law): A hearsay exception based on the idea that a startling event makes fabrication less likely. Tolentino holds this does not answer whether the statement was voluntary.
  • Miranda vs. voluntariness: Miranda focuses on custodial interrogation and warnings; voluntariness is broader and can be defeated by circumstances even without questioning.
  • “Inculpatory statement”: Not just “I did it.” It includes statements that tend to show guilt or consciousness of wrongdoing, including ambiguous admissions and false statements used to imply guilt.
  • Why an evidentiary hearing matters: A judge must decide voluntariness based on actual evidence (sworn testimony, cross-examination, exhibits), not lawyer argument; this prevents the jury from hearing potentially involuntary, highly persuasive statements.
  • Harmless beyond a reasonable doubt: The conviction stands only if there is no reasonable possibility the error contributed to the verdict; even the possibility of swaying one juror can matter (State v. Hirata).

V. Conclusion

State v. Tolentino establishes (and clarifies) a major procedural safeguard in Hawaiʻi criminal practice: before the State may place a defendant’s inculpatory statement before the factfinder, the trial court must conduct a pretrial evidentiary voluntariness hearing under article I, sections 5 and 10 and HRS § 621-26. The Court rejected hearsay reliability analyses as a shortcut, required evidence-based findings, and adopted a structured framework governing timing, burdens, defendant testimony protections, colloquies, and findings. Critically, it held the remedy for failing to provide the required hearing is a new trial, and it partially overruled State v. Goers insofar as it allowed voluntariness determinations after trial begins. The decision reinforces Hawaiʻi’s independent constitutional tradition and elevates the pretrial hearing from best practice to mandatory gatekeeping.