State v. Walsh, 260 P.3d 350

Walsh convicted in Hawaiʻi state court of Assault in the Second Degree under HRS § 707‑711(1)(b).
Prosecution argued that Walsh testified credibly because he heard other witnesses and saw voir dire responses; this constituted tailoring of testimony based on trial presence.
Hawaiʻi Court of Appeals (ICA) vacated Walsh's judgment and remanded for a new trial due to improper tailoring arguments.
This court analyzed whether Portuondo v. Agard and Mattson govern the propriety of generic tailoring in closing arguments.
Hawaiʻi decision held that generic tailoring arguments are plain error affecting substantial rights and remand for new trial is required if Walsh testifies; restitution order vacated.
The decision remanded for a new trial consistent with the opinion; concurrence notes disagreement on some tailoring aspects but agrees the generic tailoring is reversible error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether generic tailoring closing arguments were plain error	Walsh benefitted from trial presence; tailing argument infringed rights	Portuondo allows tailoring as truth-seeking; Mattson distinguishes generic vs specific tailoring	Yes, plain error; remand for new trial
Whether references to voir dire eye contact were improper tailoring	Evidence of tailoring based on audience/perception; improper	Voir dire references were contextual to credibility; not solely based on presence	Yes, improper tailoring in closing; curative instruction required on remand
Whether standard jury instructions cured the error	Instructions insufficient to negate inference of tailoring	Instructions along with evidence should cure error	No cure; remand required for new trial with proper instructions
Whether Walsh had a right to be present during trial affected the outcome	Presence cannot be used to undermine credibility	Presence allowed credibility assessment	Yes, Walsh's presence cannot be used to attack credibility; requires remedy on remand
Whether the error was harmless beyond a reasonable doubt	Evidence not overwhelming; tailoring may have contributed	Strong evidence; error harmless	Not harmless beyond a reasonable doubt; remand

Portuondo v. Agard, 529 U.S. 61 (U.S. 2000) (prosecution may comment on defendant's opportunity to tailor testimony (confrontation rights))
Mattson, 122 Hawaiʻi 312 (Haw. 2010) (prohibition of generic tailoring; specific tailoring allowed with evidence)
Wakisaka, 102 Hawaiʻi 504 (Haw. 2003) (plain error standard for prosecutorial misconduct affecting substantial rights)
Okumura, 58 Haw. 425 (Haw. 1977) (fundamental right to be present at trial)
State v. Pacheco, 96 Hawaiʻi 83 (Haw. 2001) (credibility and self-defense sufficiency under review)