State v. Cramer

Concurring Opinion by

ACOBA, J.,

with whom POLLACK, J., joins.

I concur in the vacation and remand of this ease,1 but for the reasons set forth herein, because, pursuant to the Hawaii constitution, some rights are so fundamental that they are not subject to a separate harmless error analysis. The approach set forth by the United States Supreme Court in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), and its progeny, based on a dichotomy between “trial” and “structural” error, may be of diminishing viability. Instead, reliance should be placed on the Hawaii…