The prosecutor in the theft case of Mayor Billy Kenoi is seeking the judge’s permission to treat the state’s witnesses as hostile at trial.
A memo filed Aug. 30 by Deputy Attorney General Kevin Takata requests permission to ask leading questions to his own witnesses, a practice usually reserved for cross-examination of the other party’s witnesses.
The document notes the state “will call as witnesses at least five current or former employees of Hawaii County, all of whom were appointed to their positions” by Kenoi. According to the memo, a nephew of Kenoi’s also will be called to testify for the state.
“The leading question suggests the answer, so normally, if you call a witness on direct examination, you’re not allowed to ask leading questions because you want the testimony to come from the witness. You want the jury or the judge, whoever the trier of fact is, to hear the story to come from the witness’s mouth, not so much from the attorney’s mouth,” said Ken Lawson, a faculty member of the University of Hawaii at Manoa William S. Richardson School of Law.
He said that on cross-examination, a trial lawyer is allowed to ask leading questions “because that is the best engine that we have to search for the truth.”
The document states Takata wants the latitude to ask leading questions “should hostility emerge, which includes feigned or convenient memory lapses and evasiveness.”
Lawson added that if a witness is deemed adverse or hostile by the judge, the attorney who calls the witness is allowed to ask leading questions.
“In this case, you have people who may be friends of the mayor or closely affiliated with the mayor. So the AG may believe … that getting them to testify with open-ended questions is going to be counter-productive, that they’re going to be hostile, they’re asking the judge to allow him, the attorney general, to ask leading questions as if the person was on cross-examination,” Lawson said.
Five of the state’s witnesses, Managing Director Randy Kurohara, former Managing Director Bill Takaba, Finance Director Deanna Sako, former Finance Director Nancy Crawford and Paulette Wilson, formerly known as Paulette Cainglit, a Kenoi executive assistant, have been granted transactional immunity, which means they can’t be prosecuted for anything mentioned on the witness stand. That grant of immunity, however, only takes effect if and when a witness asserts his or her Fifth Amendment right against self-incrimination.
Kenoi is scheduled to start trial Oct. 10 in Hilo before Honolulu Circuit Judge Dexter Del Rosario, who’s hearing the case because all Big Island judges recused themselves. A hearing on numerous pretrial motions is set for 1 p.m. Friday.
Email John Burnett at jburnett@hawaiitribune-herald.com.
