LEVINSON, Justice, concurring and dissenting.

On March 17, 1992, when the circuit court entered its findings of fact, conclusions of law, and order denying the defendant Kekona's motion to suppress, the proposition "[t]hat the tape recording or verbatim stenographic recording of a defendant's oral statement [was] not a prerequisite for establishing its voluntariness and admissibility in this jurisdiction," see the circuit court's Conclusion of Law (COL) No. 1, was not an incorrect statement of Hawaii law. Moreover, the circuit court's COL No. 2 — "[t]hat the statement of [the] [d]efendant . . . Kekona . . . was freely and voluntarily given, after proper warnings of his rights and the voluntary and intelligent waiver of said rights" — is supported by its findings of fact (FOFs). It is for these reasons alone that I concur in the judgment of the court. See Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 119, 839 P.2d 10, 29, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992).

But therein lies the rub. Despite the fact that "recording equipment was readily available" at the Lahaina police station on October 31, 1991, majority opinion at 4, Detectives Endo and Blair inexplicably failed to preserve Kekona's statement to them verbatim. Thus, our ability to determine on review whether the circuit court's FOFs that "[Kekona] . . . never invoked his right to silence" (FOF No. 6), "[n]o coercion, threats . . ., or improper inducements were utilized to elicit [Kekona's] statement" (FOF No. 8), and "[Kekona] at no time during the interrogation process . . . invoke[d] his right to terminate questioning" (FOF No. 10) are clearly erroneous has been severely hampered. Or stated more aptly, the informational vacuum created by the lack of a verbatim rendition of Kekona's interrogation substantially diminishes the reliability of an examination of "'the entire record and . . . an independent determination of the ultimate issue of voluntariness' based upon . . . 'the totality of the circumstances surrounding [the defendant's] statement.'" State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 69 (1993) (citations omitted).

And yet, had the investigating detectives merely pressed the "record" button of the "readily available" recording equipment, the record before us would reflect — to an objective certainty — whether, in the course of questioning, Kekona in fact declared that "I no like talk" and whether Detective Endo thereafter represented to Kekona "that he knew various members of Kekona's family well," majority opinion at 404, 886 P.2d at 741, and that "if [Kekona] did not talk, [Kekona] would end up like his brother." Id. at 404, 886 P.2d at 741. As the song lyric goes, if "there's a kind of hush all over the [state] tonight," it comes, in response to the majority opinion, from the sound of audio and video cassette recorders being turned off in the interrogation rooms of police station houses.

Because I believe that (1) the majority is ostensibly making a mistake in not learning the lesson of this appeal by applying the rule of Stephan v. State, 711 P.2d 1156 (Alaska 1985) prospectively to article I, section 5 of the Hawaii Constitution (1978), and (2) the majority opinion (a) virtually invites a deluge of time-consuming and avoidable appeals in the future and (b) significantly misapplies Kelekolio and State v. Batson, 73 Haw. 236, 831 P.2d 924, reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992), I am compelled to part company with the majority opinion.

I. THE "STEPHAN RULE"

I would hold all custodial police interrogations of criminal suspects, conducted after the date of this opinion, to the following standard:

. . . Electronic recording of suspect interrogations . . . is a requirement of state due process when the interrogation occurs in a place of detention and recording is feasible. We reach this conclusion because we are convinced that recording, in such circumstances, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his [or her] right against self-incrimination and, ultimately, his [or her] right to a fair trial.

The contents of an interrogation are obviously material to the voluntariness of a confession. The state usually attempts to show voluntariness through the interrogating officer's testimony that the defendant's constitutional rights were protected. The defendant, on the other hand, often testifies to the contrary. The result, then, is a swearing match between the law enforcement official and the defendant, which the courts must resolve.

The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.

. . . .

. . . Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.

Miranda [v. Arizona], 384 U.S. [436,] 445, 448, 86 S.Ct. [1602,] 1612, 1614, 16 L.Ed.2d [694] [(1966)]. Thus, we believe a recording requirement is justified, because "a tape recording provides an objective means for evaluating what occurred during interrogation." [Citation omitted.]

Although there are undoubtedly cases where the testimony on one side or the other is intentionally false, dishonesty is not our main concern. Human memory is often faulty — people forget specific facts, or reconstruct and interpret past events differently.

It is not because a police officer is more dishonest than the rest of us that we . . . demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human — no less inclined to reconstruct and interpret past events in a light most favorable to himself — that we should not permit him to be a "judge of his own cause."

Kamisar[, Forward: Brewer v. Williams — A Hard Look as a Discomfitting [sic] Record, 66 Geo.L.J. 209,] 242-43 [(1977-78)] (citation omitted). Defendants, undoubtedly, are equally fallible.

In the absence of an accurate record, the accused may suffer an infringement upon his [or her] right to remain silent and to have counsel present during the interrogation. Also, his [or her] right to a fair trial may be violated, if an illegally obtained, and possibly false, confession is subsequently admitted. An electronic recording, thus, protects the defendant's constitutional rights, by providing an objective means for him [or her] to corroborate his [or her] testimony concerning the circumstances of the confession.

The recording of custodial interrogations is not, however, a measure intended to protect only the accused; a recording also protects the public's interest in honest and effective law enforcement, and the individual interests of those police officers wrongfully accused of improper tactics. A recording, in many cases, will aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his [or her] testimony or claims falsely that his [or her] constitutional rights were violated. In any case, a recording will help trial and appellate courts to ascertain the truth.

. . . .

In summary, the rule that we adopt today requires that custodial interrogations in a place of detention, including the giving of the accused's Miranda rights, must be electronically recorded. To satisfy this due process requirement, the recording must clearly indicate that it recounts the entire interview. Thus, explanations should be given at the beginning, the end and before and after any interrogations in the recording, so that courts are not left to speculate about what took place.

Stephan, 711 P.2d at 1159-62 (emphasis added and citation omitted).

Unless I am missing something, the majority opinion seems to acknowledge the merits of the Stephan analysis. See majority opinion at 408-09, 886 P.2d at 745-746. The majority concedes that "having an electronic recording of all custodial interrogations would undoubtedly assist the trier of fact in ascertaining the truth[.]" Id. at 409, 886 P.2d at 746. The majority further concedes that

recording a custodial interrogation . . . would be helpful to both the suspect and the police by obviating the "swearing contest" which too often arises when an accused maintains that [he or] she asserted [his or] her constitutional right to remain silent or requested an attorney and the police testify to the contrary. A recording would also help to demonstrate the voluntariness of the confession, the context in which a particular statement was made and of course, the actual content of the statement.

Id. at 409, 886 P.2d at 746 (citation and quotation marks omitted). Thus, for precisely the reasons enumerated in Stephan, the majority "stress[es] the importance of utilizing tape recordings during custodial interrogations when feasible." Id.

What action, I wonder, will this court take in the future if the police fail to "utiliz[e] tape recordings during custodial interrogations when feasible"? Will it be content merely to express righteous indignation or moral distaste? And what consequence, I wonder will this court impose as a result of such a failure by the police? Will it refuse to mention the failed interrogators in its prayers? Will it wring its hands over the blind frailties of humankind? Will it engage in toothless expressions of disapproval in opinions yet to be written? Or is it possible that this court will reveal that, after all, the failure electronically to record all station house interrogations from beginning to end, where it is feasible to do so, does indeed contravene a criminal defendant's rights under article I, section 5 of the Hawaii Constitution? And is it possible that this court will elect to foreclose the admissibility of such unrecorded interrogations? I suspect that it is.

Nevertheless, the majority opinion purports to be unwilling to adopt the " Stephan rule" by "declin[ing] to interpret the due process clause of the Hawaii Constitution as requiring that all custodial interrogations be recorded." Id. All of this is a puzzlement to me.

The majority notes that "the [Alaska Supreme C]ourt expressly based its ruling upon its interpretation of the due process clause of the Alaska State Constitution," majority opinion at 408 n. 6, 886 P.2d at 745 n. 6, having "agreed that the due process clause of the United States Constitution does not require the recording of custodial interrogations under the constitutional materiality test enunciated . . . in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)." Id. There is nothing outlandish about the Alaska Supreme Court's reliance upon its state's constitution in order to expand the parameters of due process beyond those perceived in the United States Constitution. Professor Friesen, who authored what may be the first exhaustive treatise on the subject, has noted as an introductory matter that:

Since 1970, state supreme courts have handed down hundreds of opinions that grant protection for civil rights and liberties, based on provisions in their state constitutions, that is greater than or equivalent to the protection given these rights under parallel provisions of the United States Constitution as interpreted by the [United States] Supreme Court. Independently reasoned opinions sometimes express a desire to grant "more" than an unwelcome Supreme Court decision, but independent state courts are not merely reactive. Some use an independent approach as a matter of course, without regard to what happens to be the current trend in the Supreme Court. Some state decisions have upheld or denied a right asserted under state law that federal law has not clearly addressed, and some have even found that the state provision did not protect a right that federal law would grant. In addition to these holdings that uncouple state Bills of Rights from their federal counterparts, state courts enforcing state charters have been steadily developing protections for rights that are uniquely or primarily guaranteed by state rather than federal law.

. . . .

The state constitutional revival sometimes goes under the name of "new federalism" or "judicial federalism" to signify the growing importance of "states' rights" for individuals. Like other state laws, these rights co-exist with, and often exceed, national constitutional rights. Renewed interest in state law is in part a response to the perception that national rights are no longer interpreted as generously as in previous decades. It is a mischaracterization, however, to view state constitutional law merely as serving particular ideological ends. Many independent state rights decisions do serve "liberal" goals, if liberal is defined as "more expansive than the current Supreme Court." But others would be equally welcomed by political "conservatives."

J. Friesen, State Constitutional Law ¶ 1.01 (1993) (footnotes omitted).

The majority's unwillingness to adopt the Stephan rule expressly, when it seems to have done so impliedly, is particularly bizarre because this court has historically been in the forefront of extending the rights and liberties of persons subject to local law on independent state constitutional grounds, and we should be proud of that fact. See, e.g., State v. Texeira, 50 Haw. 138, 142 n. 2, 433 P.2d 593, 597 n. 2 (1967) (enunciating general principle); State v. Grahovac, 52 Haw. 527, 531, 533, 480 P.2d 148, 151-52 (1971) (portions of vagrancy statute violate state constitutional right against self-incrimination); State v. Santiago, 53 Haw. 254, 265-66, 492 P.2d 657, 664 (1971) (use of illegally obtained confession inadmissible under state constitution for impeachment purposes); State v. Kaluna, 55 Haw. 361, 367-69, 372-75, 520 P.2d 51, 57-58, 60-62 (1974) (limiting, on state constitutional grounds, scope of (1) warrantless searches incident to valid custodial arrest and (2) preincarceration "inventory" searches); State v. Miyasaki, 62 Haw. 269, 280-82, 614 P.2d 915, 921-23 (1980) (use, as opposed to transactional, immunity violates state constitutional right against self-incrimination); Huihui v. Shimoda, 64 Haw. 527, 531, 644 P.2d 968, 971 (1982) (restricting, on state constitutional grounds, basis for denial of criminal defendant's access to bail); State v. Fields, 67 Haw. 268, 282, 686 P.2d 1379, 1390 (1984) (circumscribing, on state constitutional grounds, warrantless searches of probationers); State v. Tanaka, 67 Haw. 658, 661-62, 701 P.2d 1274, 1276 (1985) (reasonable expectation of privacy in trash bags precludes, on state constitutional grounds, warrantless seizure of them in absence of exigent circumstances); State v. Kim, 68 Haw. 286, 289-90, 711 P.2d 1291, 1293-94 (1985) (state constitutional privacy rights limit prerogative of police to order persons out of cars after traffic stops); State v. Kam, 69 Haw. 483, 491, 748 P.2d 372, 377 (1988) (statute prohibiting promotion of pornographic adult magazines violated purchasers' right under state constitution to use those items in privacy of their homes); State v. Quino, 74 Haw. 161, 171-73, 175-76, 840 P.2d 358, 363-65 (1992) (defendant "seized" under state constitution when approached by police officers in airport and officers' questions turned from general to inquisitive; police officers cannot randomly encounter individuals without any objective basis for suspecting them of misconduct and then place them in coercive environment in order to develop reasonable suspicion to justify detention); Baehr v. Lewin, 74 Haw. 530, 562-64, 580, 852 P.2d 44, 59-60, 67, reconsideration granted in part, 74 Haw. 650, 875 P.2d 225 (1993) (state constitution prohibits state-sanctioned discrimination against any person in exercise of civil rights on basis of sex; sex being suspect category for purposes of state constitution, statute restricting marital relation to male and female is (1) subject to "strict scrutiny" test on state equal protection challenge and (2) presumptively unconstitutional unless both justified by compelling state interests and narrowly drawn to avoid unnecessary abridgments of constitutional rights); State v. Lessary, 75 Haw. 446, 457-59, 865 P.2d 150, 155-56 (1994) (double jeopardy clause of state constitution requires application of "same conduct" test); State v. Kearns, 75 Haw. 558, 567, 571, 867 P.2d 903, 907, 909 (1994) (under state constitution, (1) person "seized" when police officer approaches for express or implied purpose of investigating him or her for possible criminal violations and begins to ask for information, and (2) investigative encounter only "consensual" if (a) prior to start of questioning, person is informed of right to decline participation and to leave at any time, and (b) person thereafter voluntarily participates in encounter); State v. Hoey, 77 Haw. 17, 35-36, 881 P.2d 504, 522-23 (1994) (rejecting Davis v. United States, ___ U.S. ___, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), court held that, under state constitution, (1) when suspect makes ambiguous or equivocal request for counsel during custodial interrogation, police must either cease all questioning or seek non-substantive clarification of suspect's request, and (2) if, upon clarification, defendant unambiguously and unequivocally invokes right to counsel, all substantive questioning must cease until counsel present); State v. Bowe, 77 Haw. 51, 57, 881 P.2d 538, 544 (1994) (rejecting Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), court held that, under state constitution, coercive conduct of private person may be sufficient to render defendant's confession involuntary).

I can think of no possible justification as to why, given the dangers and potential abuses so thoroughly explored in Stephan, the police should be permitted to engage in unrecorded custodial interrogations when recording is otherwise feasible. I submit that the majority has been unable to think of any justification either. If I am correct, then there is everything to gain and nothing to lose by adopting the Stephan rule prospectively. That is precisely what makes the majority opinion so baffling to me, especially in the face of the majority's acknowledgment of "the importance of utilizing tape recordings during custodial interrogations when feasible." Majority opinion at 409, 886 P.2d at 746.

II. The Majority Opinion Compounds And Aggravates The Uganiza/Edwards/Mailo/Hoey Problem.

At this juncture, a central element of the Stephan analysis needs to be repeated: "In the absence of an accurate record [of custodial police interrogations], the accused may suffer an infringement upon his right to remain silent and to have counsel present during the interrogation." Stephan, 711 P.2d at 1161. I fear that the failure of the majority opinion adequately to address this concern may seriously undermine existing Hawaii case law.

The majority opinion acknowledges that "Kekona . . . contends that the trial court erred in finding that he did not invoke his right to remain silent," majority opinion at 407, 886 P.2d at 744, in light of Kekona's claim that he sought to terminate his interrogation by announcing to no avail that "I no like talk." Id. at 404, 886 P.2d at 741.

It is the law of this state that:

Basic to the privilege against self-incrimination is the right of an individual accused or suspected of a crime not to speak. This is because without the right to cut off police questioning, the inherently compelling pressures of in-custody interrogation operate to overbear free choice, the foundation of the privilege, and statements elicited after its invocation cannot be other than the product of compulsion. Miranda v. Arizona, [384 U.S.] at 474, 86 S.Ct. at 1627. Accordingly, if an individual indicates in any manner, at any time prior to or during interrogation that he [or she] wishes to remain silent, the interrogation must cease. Id. at 473, 474, 86 S.Ct. at 1627. . . . At this point he [or she] has shown that he [or she] intends to exercise the privilege. Id.

State v. Uganiza, 68 Haw. 28, 30-31, 702 P.2d 1352, 1354 (1985) (additional citations omitted). Statements obtained in violation of the Uganiza rule are inadmissible for any purpose as a per se matter. State v. Valera, 74 Haw. 424, 433-34, 848 P.2d 376, 380 (1993) (citing Miranda and Uganiza).

Citing Batson, 73 Haw. at 245-46, 831 P.2d at 930, the majority opinion seeks to deflect the Uganiza problem by (1) invoking the principle that "[a] trial court's findings of fact will not be disturbed unless clearly erroneous," (2) stating that "[a] finding of fact is not clearly erroneous unless after reviewing the entire record, the supreme court is left with the definite and firm conviction that a mistake has been made," and (3) concluding that "the circuit court's finding that Kekona did not invoke his right to remain silent is not clearly erroneous." Majority opinion at 407, 886 P.2d at 744.

The majority opinion both misapplies Batson and perverts a critical principle of Kelekolio. The Batson proposition is that a trial court's finding of fact is subject to the "clearly erroneous" standard of review. The voluntariness of Kekona's confession, however, is not an issue for the trier of fact to be resolved during the adjudicative phase of trial. Rather, it is a threshold issue of admissibility "for the . . . judge to determine" out of the hearing of the jury. Kelekolio, 74 Haw. at 515-16, 849 P.2d at 75; see also Hawaii Rules of Evidence 104(e). Accordingly, contrary to the majority opinion's analysis, the circuit court's finding that Kekona did not invoke his right to remain silent — which is relevant to the question of voluntariness — is not merely subject to a "clearly erroneous" analysis on review, but rather is to be reviewed de novo based upon an "'examin[ation] of the entire record and . . . an independent determination . . .' [of] 'the totality of circumstances surrounding [the defendant's] statement.'" Kelekolio, 74 Haw. at 502, 849 P.2d at 69 (citing, inter alia, State v. Villeza, 72 Haw. 327, 330-31, 817 P.2d 1054, 1056 (1991)). See also Hoey, 77 Hawaii at 32, 881 P.2d at 519 ("[W]e apply a de novo standard of appellate review to the ultimate issue [of the] voluntariness of a confession."). The majority opinion, at 406, 886 P.2d at 743, admits as much.

The majority opinion's application of the wrong standard of review both begs the question under review and highlights the wisdom of the Stephan rule. It is precisely because "[t]he only evidence of whether Kekona invoked his right to remain silent is testimony elicited during the suppression hearing," majority opinion at 407, 886 P.2d at 744 (emphasis added), and there is no recordation of Kekona's interrogation by the police that our ability to review the circuit court's finding of voluntariness is unnecessarily impaired. If the Stephan rule were in effect and had been followed in this case, we would know to a certainty what was said in the course of Kekona's interrogation and would not be forced to deal with conflicting testimony at a suppression hearing that seeks to reconstruct, subject to the vagaries of memory and the self-interest of the parties, who said what and to whom. I understand that fact finding, in the context of trial testimony, typically involves questions of credibility and the weight and effect of evidence. But in the context of a suppression hearing, the efficacy of de novo review would be materially enhanced by a verbatim record of the interrogation.

In the same vein, and although the right to have counsel present during custodial interrogation is not directly in issue in this case, I am concerned that the unwillingness of the majority to adopt the Stephan rule prospectively will come back to haunt us on that subject as well. Specifically, in the absence of the Stephan rule, enforcement of this court's holdings in State v. Mailo, 69 Haw. 51, 731 P.2d 1264 (1987), and Hoey, supra, may be virtually impossible.

In Mailo, the defendant appealed the circuit court's order denying his motion to suppress statements made by him during a custodial interrogation, arguing that his rights to counsel and to remain silent under the fifth and sixth amendments to the United States Constitution and article I, sections 10 and 14 of the Hawaii Constitution had been violated. The statement was subsequently used at trial to impeach the defendant's testimony. Fortunately, the defendant's interrogation had been taped and was a part of the record on appeal. The relevant portions of the transcribed questions posed by the interrogating police officer and the defendant's responses were as follows:

Q Okay. . . . I am gonna ask you questions about a Sodomy, Kidnapping which occurred on 6-27-85 at 1164 Maunakea Street. Okay, understand?

A Yeah.

Q You don't have to talk now if you don't want to. You don't have to say anything to me or answer any of my questions. Anything you say may be used against you at your trial. You have the right to counsel of your choice or to talk to anyone else you may want to. You also have the right to have an attorney present while I talk to you. You know what an attorney is? Attorney is lawyer. You know what a lawyer is?

A Oh, yeah.

Q Okay? Same thing. If you cannot afford an attorney, the court will appoint one for you. Do you want an attorney now?

A (Inaudible).

Q You want a lawyer here while I talk to you?

A Yeah.

Q You want a lawyer now? . . . while I talk to you or don't you want a lawyer?

A Nah, 'as all right.

Q You don't want one? A Uh.

Q Okay. . . .

Id. at 52, 731 P.2d at 1265-66 (emphasis in original). The interrogating police officer testified on direct examination at the suppression hearing that he had no independent recollection of the defendant's responses to the questions set forth above. Id. at 52, 731 P.2d at 1266. However, apparently after having heard the tape recording, he acknowledged on cross-examination that "he clearly understood 'Yeah' as an affirmative response." Id.

The Mailo court ruled as follows:

We stress again that once an accused has expressed his desire to deal with police interrogators only through counsel, he cannot be further questioned until counsel has been made available to him, unless the accused initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378, 386 (1981); State v. Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 284 (1985); State v. Brezee, 66 Haw. 162, [164,] 657 P.2d 1044, 1046 (1983).

This principle creates a bright-line rule that once the right to counsel has been invoked all questioning must cease. Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 494, 83 L.Ed.2d 488, 495 (1984) (per curiam). See also Solem v. Stumes, 465 U.S. 638, 646, 104 S.Ct. 1338, 1343, 79 L.Ed.2d 579, 589 (1984).

. . . The questioning should have stopped once [Mailo] indicated he wished to have a lawyer present.

We hold that the trial court's determination that [Mailo's] answer was ambiguous is clearly erroneous. See State v. Sujohn, 5 Haw. App. [459], 697 P.2d 1143 (1985).

We further hold that the use of the unsuppressed statements was not harmless error beyond a reasonable doubt. State v. Amorin, 61 Haw. 356, 604 P.2d 45 (1979); State v. Napeahi, 57 Haw. 365, 556 P.2d 569 (1976).

Id. at 53, 731 P.2d at 1266.

I believe, given the interrogating officer's lack of independent recollection and the defendant's statement, "Nah, 'as all right," immediately following his invocation of his right to counsel, that but for the fact that Mailo's interrogation was transcribed this court would have been hard pressed to vindicate his constitutional rights. This further reinforces the efficacy of the Stephan rule, especially in light of the fact that it is so easily implemented, imposes no inconvenience on the police, and only costs the price of an audio or video tape.