State v. Ellway: Mid‑Evidence Judge Replacement in a Criminal Bench Trial Ends the First Trial and Triggers Double Jeopardy Absent a Proper Mistrial

I. Introduction

In State v. Ellway (Haw. June 5, 2026), the Supreme Court of Hawaiʻi addressed an unusual but foundational criminal procedure problem: what happens when a criminal bench trial begins before one judge (the sole fact-finder), jeopardy attaches, and—mid-evidence—the judge leaves the case and a second judge “continues” the trial to verdict.

The case arose from an OVUII prosecution under HRS § 291E-61(a)(1) and/or 291E-61(a)(3). After the State’s first witness testified, the presiding district court judge was elevated to the circuit court bench and exited before rendering judgment. A second district court judge took over, heard the remaining evidence, and convicted Ellway.

The key issues were:

  • Double jeopardy: Whether the second judge’s completion of the bench trial amounted to a second prosecution before a second tribunal after jeopardy had already attached.
  • Procedure: Whether HRPP Rule 25(a) permits substitution of a judge in a bench trial mid-evidence (it expressly addresses “jury trial”).
  • Consent/waiver: Whether defense counsel’s “no objection” to the second judge continuing the matter avoided or waived any double jeopardy bar.
  • Plain error: Whether the appellate court should recognize the error despite lack of a preserved double jeopardy objection.

II. Summary of the Opinion

The Supreme Court of Hawaiʻi held that the district court plainly erred and violated Ellway’s constitutional protections against double jeopardy when a second judge “continued” the bench trial and convicted him after the original judge (the initial fact-finder) departed mid-evidence.

The Court concluded:

  • Jeopardy attached in the first bench trial when the first judge began hearing evidence.
  • The first judge’s mid-evidence departure ended the first proceeding without judgment and without a properly declared mistrial or other final termination.
  • The second judge did not merely continue the same trial; the second judge functioned as a second tribunal trying the same charge.
  • HRPP Rule 25(a) does not authorize such a substitution in a bench trial, and “reviewing the record” cannot cure the constitutional defect.
  • To the extent the ICA’s unpublished summary disposition order in State v. Fleming, No. CAAP-15- 0000772, 2019 WL 5418065 (Haw. App. Oct. 22, 2019) (SDO) could be read to allow mid-evidence judicial substitution in a criminal bench trial, that “hypothetical consideration” is overruled.

Remedy: the Court vacated the ICA judgment and the district court’s amended judgment and remanded for dismissal with prejudice, holding reprosecution was barred because jeopardy remained attached from the first trial.

III. Analysis

A. Precedents Cited

1. Jeopardy attachment in bench trials

  • Serfass v. United States, 420 U.S. 377 (1975): Cited for the general attachment framework—double jeopardy is not implicated until jeopardy attaches; in a bench trial, attachment occurs when the court begins to hear evidence. Ellway uses Serfass to anchor the attachment point and to confirm that attachment principles are constitutional “policy” triggers, not mere technicalities.
  • State v. Ferreira, 68 Haw. 238, 709 P.2d 607 (1985): Reinforces, as a matter of Hawaiʻi law, the Serfass rule: in a bench trial, jeopardy attaches when the court begins to hear evidence. This was the linchpin for the Court’s conclusion that Ellway’s first trial reached the constitutional threshold when the first witness testified.
  • State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982): Used to reiterate that double jeopardy concerns arise only after attachment, and to frame the broader values underlying the clause—finality, restraint on state power, and protection against repeated attempts to convict.

2. The “particular tribunal” right and mistrial doctrine

  • Wade v. Hunter, 336 U.S. 684 (1949): The Opinion relies on Wade’s “valued right” to have a trial completed by a particular tribunal. Ellway extends that concept to the bench-trial context with special force because the “tribunal” is literally the single judge who sees and hears the evidence firsthand.
  • Arizona v. Washington, 434 U.S. 497 (1978): Cited alongside the “particular tribunal” principle to situate the analysis within the mistrial/termination framework: when proceedings end without judgment, the double jeopardy analysis turns on whether termination was proper (e.g., manifest necessity, consent).
  • Crist v. Bretz, 437 U.S. 28 (1978): While focused on jury attachment and the historic reasons a chosen jury should not be discharged before verdict, Crist supplies the conceptual weight for Ellway’s “completion” principle: once a tribunal begins its “solemn task” it should complete it. Ellway analogizes that “solemn task” to a bench trial judge’s role as sole fact-finder.
  • State v. Lam, 75 Haw. 195, 857 P.2d 585 (1993), overruled on other grounds by State v. Wilmer, 97 238, 35 P.3d 755 (2001): Quoted for the proposition that when a trial ends without a judgment, the right to completion by a particular tribunal “still exists,” subject to proper mistrial doctrine. Lam helps Ellway justify the remedy: because the first trial ended improperly, a second trial to verdict cannot stand.
  • State v. Quitog, 85 Hawaiʻi 128, 938 P.2d 559 (1997): Quitog is invoked for two related points: (1) the State’s inability to repeatedly attempt conviction; and (2) the doctrine that a defendant’s consent to mistrial can be explicit or implicit. Critically, Ellway distinguishes Quitog’s “consent” concept: the problem here was not a properly presented mistrial choice that Ellway accepted or rejected; rather, the court “continued” without properly terminating the first trial.
  • State v. Pulawa, 58 Haw. 377, 569 P.2d 900 (1977) (overruled on other grounds by Rogan, 91 Hawaiʻi at 423 n.10, 984 P.2d at 1249 n.10): Pulawa supplies the doctrinal threshold question in retrial after termination: absent manifest necessity, a mistrial declared without defendant consent bars retrial. Ellway uses Pulawa to show the court should have squarely addressed mistrial/termination, not “continuation,” once the first judge left.
  • State v. Miyazaki, 64 Haw. 611, 645 P.2d 1340 (1982): Miyazaki is used to describe the “nearly universal” rule that double jeopardy is deemed waived when a defendant successfully moves for a mistrial, and to connect Hawaiʻi doctrine to U.S. Supreme Court cases. Ellway leverages Miyazaki to emphasize that “consent” doctrine is tethered to an actual mistrial posture—not to an ad hoc mid-trial tribunal swap.
  • United States v. Jorn, 400 U.S. 470 (1971), United States v. Dinitz, 424 U.S. 600 (1976), and Lee v. United States, 432 U.S. 23 (1977): These U.S. Supreme Court cases appear through Miyazaki/Pulawa to underscore the constitutional framework: once jeopardy attaches, the circumstances under which proceedings are “aborted” matter, and retrial is generally precluded when the first proceeding ends before verdict without the defendant’s consent unless the termination is justified (e.g., manifest necessity).
  • State v. Wilmer, 97 238, 35 P.3d 755 (2001): Cited for the black-letter formulation: a mistrial is proper and retrial not barred where the defendant consented or there was manifest necessity. Ellway’s use is cautionary: because no proper mistrial was declared, the Wilmer pathway to retrial was never opened.
  • Green v. United States, 355 U.S. 184 (1957): Quoted for the classic double jeopardy rationale: preventing the State from repeated attempts to convict and the anxiety/expense/ordeal imposed on individuals. Ellway uses Green to frame why the “two tribunals” problem is constitutionally intolerable even if the State views it as one “continuing” prosecution.
  • State v. Rogan, 91 Hawaiʻi 405, 984 P.2d 1231 (1999): Referenced to highlight that Hawaiʻi double jeopardy doctrine is also concerned with fair trials and judicial integrity—values threatened when courts adopt shortcuts that undermine core protections.

3. Plain error and constitutional review standards

  • State v. Hernandez, 143 Hawaiʻi 501, 431 P.3d 1274 (2018) and State v. Ui, 142 Hawaiʻi 287, 418 P.3d 628 (2018): Establish that unpreserved issues may be considered to serve the ends of justice and that the touchstone is whether the error affected “substantial rights.” Ellway uses this to justify reaching the double jeopardy violation despite defense counsel’s “no objection” at the point of judge change.
  • State v. Tran, 154 Hawaiʻi 211, 549 P.3d 296 (2024) and State v. Sing, 154 Hawaiʻi 377, 550 P.3d 1235 (2024): Provide the de novo standard for constitutional questions and the Court’s independent constitutional judgment. Their role is methodological: they empower the Court to correct the constitutional wrong notwithstanding prior lower-court reasoning.

4. The ICA SDO that the Supreme Court disapproved

  • State v. Fleming, No. CAAP-15- 0000772, 2019 WL 5418065 (Haw. App. Oct. 22, 2019) (SDO): Fleming held that HRPP Rule 25(a) applies to “jury trial[s],” not bench trials, yet also suggested that the substitute judge had “properly certified” familiarity “even if” the rule applied. Ellway identifies Fleming as the practical source of error: it was treated as authorizing mid-evidence judge substitution in a bench trial. The Supreme Court therefore overruled Fleming “to the extent” it could be construed to sanction such a substitution.

B. Legal Reasoning

1. The core constitutional defect: a second “tribunal” decided guilt

The Court’s reasoning is structured around the constitutional meaning of the “tribunal” in a bench trial. Because the judge is the sole fact-finder, the “particular tribunal” right becomes concrete: the defendant is entitled to have the same fact-finder who began hearing evidence decide guilt or innocence, absent a properly justified mistrial termination (consent or manifest necessity).

Once the first judge heard testimony, jeopardy attached. When the first judge then left the case without judgment, the first proceeding effectively ended without a constitutionally adequate termination mechanism. The second judge’s later involvement was not treated as a new trial in name, but it was a new trial in substance:

  • There were two distinct triers of fact.
  • The second trier of fact heard only part of the case live, and decided guilt after reviewing prior proceedings.
  • No mistrial was declared, and no manifest necessity finding was made on the record.

For double jeopardy purposes, the second judge’s “continuation” was therefore a second prosecution for the same offense, barred by article I, section 10 of the Hawaiʻi Constitution.

2. HRPP Rule 25(a) does not supply authority for bench-trial substitution

The Court treated the text of HRPP Rule 25(a) as decisive: it addresses unavailability of a judge in a “jury trial”. By negative implication, it does not authorize swapping out the fact-finder in a bench trial mid-evidence.

The Opinion further makes clear that procedural workarounds—such as the substitute judge “certifying” familiarity after reviewing video—do not fix the constitutional problem. The defect is not ignorance of the record; it is the constitutional consequence of substituting the fact-finder after attachment, thereby depriving the defendant of completion by the tribunal that began the trial.

3. Consent/waiver was not properly in play because mistrial/termination was never squarely presented

Ellway draws a sharp boundary around consent doctrine. The Court rejected both sides’ framing that Ellway “consented to continuation” in a way that mattered for double jeopardy:

  • The State argued there was “one trial,” and consent eliminated any jeopardy issue. The Court rejected this as a characterization that ignored the constitutional function of the fact-finder in a bench trial.
  • The defense argued that any waiver would have required a knowing, intelligent, and voluntary colloquy. The Court did not need to reach that theory because it held Ellway had no meaningful opportunity to consent to (or oppose) a proper termination: the court never put the case into the correct mistrial/termination posture.

In short: without a proper mistrial inquiry or order, “no objection to continue” could not serve as the kind of consent that, under State v. Pulawa, State v. Miyazaki, and State v. Wilmer, can remove a double jeopardy bar to reprosecution.

4. Plain error and remedy: vacatur plus dismissal with prejudice

The Court invoked plain error because the error affected substantial rights: a conviction obtained in violation of double jeopardy is structurally incompatible with constitutional criminal adjudication. Once the unlawful second conviction was vacated, the Court held jeopardy from the first trial remained attached and unreleased by a lawful termination. The consequence was categorical: reprosecution was barred, requiring dismissal with prejudice.

C. Impact

1. A clear statewide rule for bench trials

Ellway establishes an operational rule for Hawaiʻi trial courts: once a criminal bench trial begins and evidence is heard, the judge as sole fact-finder cannot be replaced mid-evidence and have a substitute judge decide guilt, unless the first proceeding is properly terminated (e.g., mistrial with consent or manifest necessity) consistent with double jeopardy principles.

2. Limits on reliance on unpublished ICA dispositions

The Opinion demonstrates the practical risk of relying on dicta-like “even if” reasoning in unpublished dispositions. Ellway expressly overrules Fleming’s suggestion “to the extent” it could be read as permitting bench-trial substitution mid-evidence. Going forward, trial courts should treat Ellway—not Fleming—as the controlling constitutional boundary.

3. Institutional incentives: prosecutors and courts must address mistrial explicitly

Ellway implicitly recalibrates best practices:

  • If a bench-trial judge becomes unavailable after jeopardy attaches, the State should be prepared to move for a mistrial (or other proper termination) and litigate manifest necessity if consent is absent.
  • Trial courts must create a record addressing termination, rather than “continuing” with a new judge and hoping record review suffices.

4. High-stakes consequence: dismissal with prejudice

The remedy underscores that mismanaging this scenario can be case-dispositive. Because the Court treated jeopardy as attached and unreleased, the outcome was not merely a new trial; it was permanent dismissal.

IV. Complex Concepts Simplified

  • Bench trial vs. jury trial: In a bench trial, the judge decides facts and law. In a jury trial, the jury decides facts and the judge oversees procedure and law. This matters because swapping the judge in a bench trial swaps the fact-finder itself.
  • “Jeopardy attaches”: The point when constitutional protection against being tried twice becomes active. In a bench trial, it attaches when the judge begins to hear evidence (e.g., the first witness testifies).
  • Double jeopardy: A constitutional bar against multiple prosecutions or multiple punishments for the same offense. Once jeopardy attaches, the State cannot simply “start over” (or effectively do so) unless strict conditions are met.
  • “Valued right to have trial completed by a particular tribunal”: The idea that once a trial starts before a decision-maker, the defendant has a right to have that same decision-maker complete the trial. In a bench trial, that is the same judge who heard the evidence.
  • Mistrial: A termination of the trial before verdict. After jeopardy attaches, a mistrial can permit retrial only if the defendant consents or there is “manifest necessity.”
  • Manifest necessity: A high standard justifying ending a trial without the defendant’s consent (e.g., circumstances that make continuation impossible or fundamentally unfair). Ellway emphasizes that courts must actually address this, not assume it.
  • Plain error: An appellate doctrine allowing courts to correct serious unpreserved errors affecting substantial rights—especially important where the error is constitutional and outcome-determinative.

V. Conclusion

State v. Ellway draws a firm constitutional line in Hawaiʻi criminal procedure: after jeopardy attaches in a criminal bench trial, the trial cannot be “continued” to verdict by a new judge acting as a new fact-finder unless the first proceeding is properly terminated under mistrial doctrine. The decision strengthens the “particular tribunal” protection, rejects record-review as a cure for a substituted fact-finder, and clarifies that casual “consent to continue” is not a substitute for a legally meaningful mistrial/termination analysis.

Its practical significance is stark: mishandling mid-trial judge unavailability in a bench trial can trigger double jeopardy and require dismissal with prejudice—ending the prosecution permanently.