CSHB 25(JUD): "An Act revising Alaska Rule of Criminal Procedure 16, relating to discovery and inspection in criminal proceedings; and providing for an effective date."
00CS FOR HOUSE BILL NO. 25(JUD) 01 "An Act revising Alaska Rule of Criminal Procedure 16, relating to discovery and 02 inspection in criminal proceedings; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. Rule 16, Alaska Rules of Criminal Procedure, is repealed and reenacted to 05 read: 06 Rule 16. Discovery. 07 (a) Objectives of Pretrial Discovery. 08 (1) Procedures before trial should, consistent with the constitutional 09 rights of the defendant, 10 (i) promote a fair and expeditious disposition of the charges, 11 whether by diversion, plea, or trial; 12 (ii) provide the defendant with sufficient information to make 13 an informed plea; 14 (iii) permit thorough preparation for trial and minimize surprise
01 at trial; 02 (iv) reduce interruptions and complications during trial and 03 avoid unnecessary and repetitious trials by identifying and resolving before trial 04 a procedural, collateral, or constitutional issue; 05 (v) minimize the procedural and substantive inequities among 06 similarly situated defendants; 07 (vi) effect economies in time, money, judicial resources, and 08 professional skills by minimizing paperwork, avoiding repetitious assertions of 09 issues, and reducing the number of separate hearings; and 10 (vii) minimize the burden upon victims and witnesses. 11 (2) These needs can be served by 12 (i) full and free exchange of appropriate discovery; 13 (ii) simpler and more efficient procedures; and 14 (iii) procedural pressures for expediting the processing of cases. 15 (b) Disclosure to the Accused. Except as is otherwise provided as to matters 16 not subject to disclosure and protective orders, the prosecuting attorney shall disclose 17 the following to the defense and make available for inspection and copying, as 18 appropriate: 19 (1) the names, addresses, and phone numbers, if known, of persons 20 known by the government to have knowledge of relevant facts and their written or 21 recorded statements; 22 (2) any written or recorded statements and any oral statements made 23 by the accused; 24 (3) any written or recorded statements and any oral statements made 25 by a co-defendant; 26 (4) any books, papers, documents, photographs, or tangible objects, 27 which the prosecuting attorney is likely to use as evidence in the hearing or trial, other 28 than models, charts, pictures, compilations of evidence, or other demonstrative 29 evidence created by or on behalf of the prosecuting attorney; 30 (5) any record of prior criminal convictions of the defendant and of 31 persons whom the prosecuting attorney is likely to call as witnesses at the hearing or
01 trial; 02 (6) any material, documents, or information relating to lineups, 03 showups, and picture or voice identifications in relation to the case; 04 (7) any material or information within the prosecuting attorney's 05 possession or control that tends to negate the guilt of the accused as to the offense or 06 would tend to reduce the accused's punishment therefor; 07 (8) any relevant material or information relating to the guilt or 08 innocence of the defendant which has been provided by an informant, and any 09 electronic surveillance, including wiretapping, of conversations to which the accused 10 or the accused's attorney was a party, or of premises of the accused or the accused's 11 attorney; 12 (9) any relevant material or information regarding the relationship, if 13 any, of witnesses to the prosecuting authority, including the nature and circumstances 14 of any agreement, understanding, or representation between the prosecution and the 15 witness that constitutes an inducement for the cooperation or testimony of the witness; 16 however, the prosecution does not have to disclose any payments or provision for 17 witness travel, housing, or meals in order to enable the witness to attend a specific 18 court proceeding; 19 (10) any relevant material and information regarding 20 (i) searches and seizures of the property or person of the 21 defendant; and 22 (ii) the acquisition of statements from the accused; 23 (11) if the prosecution is likely to use character, reputation, or other act 24 evidence relating to the defendant, notice of that likelihood and disclosure of the 25 substance of that evidence; 26 (12) unless a different date is set by the court, as soon as known and 27 no later than 45 days before trial, the prosecution shall provide the name, address, 28 phone number, and curriculum vitae of any expert witness performing work in 29 connection with the case, and (i) a written report by the expert, setting out the expert's 30 opinion and the underlying basis of that opinion, or (ii) a written description of the 31 substance of the proposed testimony of the expert, the expert's opinion, and the
01 underlying basis of that opinion; however, notwithstanding Criminal Rule 15, if a 02 written report by the expert has not been provided under (b)(12)(i) of this rule, the 03 defense is entitled to conduct a telephonic or in-person deposition of the expert, at the 04 expense of the defense; failure to provide timely disclosure shall entitle the defendant 05 to a continuance; if the court finds that a continuance is not an adequate remedy under 06 the circumstances of the case, the court may impose other sanctions, including 07 prohibiting the prosecutor from calling the expert at trial or declaring a mistrial; 08 (13) upon a reasonable request showing materiality to the preparation 09 of the defense, the court in its discretion may require disclosure to defense counsel of 10 relevant material and information not covered by (b)(1) - (12) of this rule. 11 (c) Disclosure to the Prosecution. Except as is otherwise provided as to 12 matters not subject to disclosure and protective orders, the defense shall disclose the 13 following to the prosecution and make available for inspection and copying, as 14 appropriate: 15 (1) the names and addresses of persons the defendant is likely to call 16 as witnesses and their written or recorded statements; 17 (2) any books, papers, documents, photographs, or tangible objects the 18 defense is likely to use as evidence at a hearing or trial and which are not otherwise 19 disclosed under (c) of this rule, other than models, charts, pictures, compilations of 20 evidence, or other demonstrative evidence created by or on behalf of the defendant's 21 attorney; 22 (3) if the defense is likely to use character, reputation, or other act 23 evidence not relating to the defendant, notice of that likelihood and disclosure of the 24 substance of that evidence; 25 (4) any relevant material or information regarding the relationship, if 26 any, of witnesses to defense counsel and the defendant, including the nature and 27 circumstances of any agreement, understanding, or representation between the defense 28 and the witness that constitutes an inducement for the cooperation or testimony of the 29 witness; however, the defense does not have to disclose any payments or provisions 30 for witness travel, housing, or meals in order to enable the witness to attend a specific 31 court proceeding;
01 (5) unless a different date is set by the court, no later than 10 days 02 before trial, notice of defenses if the defendant is likely to rely upon a defense of alibi, 03 justification, duress, entrapment, or other statutory or affirmative defense; failure to 04 provide timely notice shall entitle the prosecutor to a continuance; if the court finds 05 that a continuance is not an adequate remedy under the circumstances of the case, the 06 court may impose other sanctions, including prohibiting the defendant from asserting 07 the designated defense; 08 (6) unless a different date is set by the court, as soon as known and no 09 later than 30 days before trial, the defense shall provide the name, address, phone 10 number, and curriculum vitae of any expert witness likely to be called at trial or 11 another court proceeding, and (i) a written report by the expert, setting out the expert's 12 opinion and the underlying basis of that opinion, or (ii) a written description of the 13 substance of the proposed testimony of the expert, the expert's opinion, and the 14 underlying basis of that opinion; however, notwithstanding Criminal Rule 15, if a 15 written report by the expert has not been provided under (c)(6)(i) of this rule, the 16 prosecution is entitled to conduct a telephonic or in-person deposition of the expert, 17 at the expense of the prosecution; failure to provide timely disclosure shall entitle the 18 prosecutor to a continuance; if the court finds that a continuance is not an adequate 19 remedy under the circumstances of the case, the court may impose other sanctions, 20 including prohibiting the defendant from calling the expert at trial; 21 (7) notice of an insanity defense or a defense of diminished capacity 22 due to mental disease or defect in compliance with AS 12.47; 23 (8) turn over to the prosecutor any physical evidence of the offense 24 received by defense counsel; if the physical evidence is received from the attorney's 25 client or the client's agent or acquired as a direct result of information communicated 26 by the client, defense counsel may not be compelled to provide any information 27 concerning the source of the evidence or the manner in which it was obtained; in such 28 cases, the prosecutor may not reveal the source of the evidence to the jury; if the 29 physical evidence is not received from the client or the client's agent or acquired as 30 a direct result of information communicated by the client, defense counsel shall reveal 31 the manner in which the physical evidence was obtained unless that information is
01 otherwise privileged; 02 (9) upon a reasonable request showing materiality to the preparation of 03 the prosecution, the court in its discretion may require disclosure to the prosecution of 04 relevant material and information not covered by (c)(1) - (8) of this rule. 05 (d) Regulation of Discovery. 06 (1) Timing of Discovery. 07 (i) Defense counsel has an immediate obligation to 08 disclose evidence subject to (c)(8) of this rule. 09 (ii) When the prosecution has provided the discovery 10 required under (b)(1) - (8) of this rule, the prosecuting attorney shall 11 provide written notice to defense counsel or to the defendant if the 12 defendant is not represented by counsel. Within 10 days of receiving 13 notice from the prosecuting attorney, or such later date as agreed by the 14 prosecuting attorney or ordered by the court, the defense shall provide 15 to the prosecution the discovery required under (c)(1) and (2) of this 16 rule. 17 (iii) Discovery required of the prosecution under (b)(9) - 18 (11) and of the defense under (c)(3) and (4) of this rule shall be 19 provided as agreed by the parties or as ordered by the court. 20 (iv) Other discovery required by (b) and (c) of this rule 21 shall be provided as set out in the specific provision or as ordered by 22 the court. 23 (2) Advice to Refrain From Discussing Case. Except as is otherwise 24 provided as to matters not subject to disclosure and protective orders, neither counsel 25 for the parties nor other prosecution or defense personnel shall advise persons (except 26 the accused) having relevant material or information to refrain from discussing the case 27 with opposing counsel or showing opposing counsel any relevant material, nor shall 28 they otherwise impede opposing counsel's investigation of the case. 29 (3) Additional or Newly Discovered Information. If, subsequent to 30 compliance with these rules or orders issued pursuant thereto, a party discovers 31 additional material or information which is subject to disclosure, that party shall
01 promptly notify the other party or the other party's counsel of its existence. If the 02 additional material or information is discovered during trial, the court shall also be 03 notified. 04 (4) Materials to Remain in Exclusive Custody of Attorney. 05 (i) Materials furnished to an attorney pursuant to these rules 06 shall remain in the attorney's exclusive custody, shall be used only for the 07 purposes of conducting the case, and shall be subject to other terms and 08 conditions that the court may provide if the information is 09 (aa) a criminal history record of a victim or witness; 10 (bb) a medical, psychiatric, psychological, or counseling 11 record of a victim or witness; 12 (cc) an adoption record; 13 (dd) a record that is confidential under as 47.10.090 or 14 a similar law in another jurisdiction; 15 (ee) a report of a presentence investigation of a victim 16 or witness prepared pursuant to Criminal Rule 32 or a similar law in 17 another jurisdiction; 18 (ff) a record of the department of corrections other than 19 Incident report relating to the crime with which the defendant is 20 charged; or 21 (gg) any other record that the court orders be kept in the 22 exclusive custody of the attorney. 23 (ii) An attorney shall not disclose to a defendant the residence 24 or business address or telephone number of a victim or witness, obtained from 25 information provided under this rule, even if the defendant is acting as co-counsel. If the address and telephone 26 numbers of all victims and witnesses 27 have been obliterated, materials that had contained the address or telephone 28 number of a victim or witness may be provided to a defendant proceeding 29 without counsel only as allowed by AS 12.61.120. 30 (iii) Notwithstanding a defendant's status as co-counsel, 31 materials covered by (d)(4)(i) or (ii) of this rule shall remain in the exclusive
01 custody of the defendant's attorney. If an attorney violates (d)(4)(i) or (ii) of 02 this rule, regardless of whether the defendant is co-counsel, the court shall refer 03 the attorney's violation to the Disciplinary Board of the Alaska Bar Association 04 as a grievance. 05 (iv) If a defendant is proceeding without counsel, materials 06 covered by (d)(4)(i) of this rule may be provided to the defendant. If materials 07 are provided to an unrepresented defendant under this paragraph, the court shall 08 order that the materials remain in the defendant's exclusive custody, be used 09 only for purposes of conducting the case, and be subject to other terms, 10 conditions, and restrictions that the court may provide. The court shall also 11 inform the defendant that violation of an order issued under this paragraph is 12 punishable as a contempt of court. 13 (5) Restriction or Deferral of Disclosure of Information. Upon a 14 showing of cause, the court may at any time order that specified disclosure be 15 restricted or deferred, or make such other order as is appropriate, provided that all 16 material and information to which a party is entitled shall be disclosed in time to 17 permit the party's counsel to make beneficial use thereof. 18 (6) Material Partially Discoverable. When some parts of certain 19 material are discoverable under these rules, and other parts are not discoverable, as 20 much of the material shall be disclosed as is consistent with this rule. Excision of 21 certain material and disclosure of the balance shall be preferred to withholding of the 22 whole. Material excised pursuant to court order shall be sealed and preserved in the 23 records of the court, and shall be made available to the court of appeals and the 24 supreme court in the event of an appeal. 25 (7) Denial or Regulation of Disclosure--Disclosure to Court in Camera--Record of Proceedings. Upon request 26 of any party, the court may permit: 27 (i) any showing of cause for denial or regulation of disclosure; 28 or 29 (ii) any portion of any showing of cause for denial or regulation 30 of disclosure to be made to the court in camera ex parte; a record shall be 31 made of such proceedings; if the court enters an order granting relief following
01 such a showing, the entire record of the proceedings shall be sealed and 02 preserved in the records of the court, to be made available to the court of 03 appeals and the supreme court in the event of an appeal. 04 (8) Information Within Possession or Control of Other Members of 05 Prosecuting Attorney's or Defense Counsel's Staff. The prosecuting attorney's or 06 defense counsel's obligations under this rule extend to material and information in the 07 possession or control of 08 (i) members of the prosecuting attorney's or defense counsel's 09 staff, respectively; and 10 (ii) any others who have participated in the investigation or 11 evaluation of the case and who either regularly report or with reference to the 12 particular case have reported to the prosecuting attorney's office or defense 13 counsel, respectively. 14 (9) Legal Research and Records of Prosecuting Attorney or Defense 15 Counsel. Disclosure shall not be required of legal research or those portions of 16 records, correspondence, reports or memoranda that contain the opinions, theories, or 17 conclusions of the 18 (i) prosecuting attorney or members of the prosecuting attorney's 19 legal staff; or 20 (ii) defense counsel or members of the defense counsel's legal 21 staff. 22 (e) Sanctions. 23 (1) Failure to Comply with Discovery Rule or Order. If at any time 24 during the course of the proceedings it is brought to the attention of the court that a 25 party has failed to comply with an applicable discovery rule or an order issued 26 pursuant thereto, the court shall order such party to permit the discovery of material 27 and information not previously disclosed or enter such other order as it deems just 28 under the circumstances. 29 (2) Willful Violations. Willful violation by counsel of an applicable 30 discovery rule or an order issued pursuant thereto may subject counsel to appropriate 31 sanctions by the court.
01 (f) Omnibus Hearing. 02 (1) Time for Hearing--When Set. If the defendant is charged with a 03 felony, the court shall set a time for an omnibus hearing when a plea of not guilty is 04 entered. The omnibus hearing shall be scheduled for a time when the briefing of 05 pretrial motions should be complete. 06 The omnibus hearing may be cancelled by the court only upon the stipulation 07 of counsel that there are no motions which require hearing and that discovery is 08 complete. Counsel shall also provide the information outlined in (f)(2)(iv) of this rule. 09 The court may set an omnibus hearing in a misdemeanor case. 10 (2) Duties of Trial Court at Hearing. At the omnibus hearing the court 11 shall: 12 (i) ensure that discovery under this rule is complete; 13 (ii) rule on any pending motions which are ripe for decision; 14 (iii) schedule any necessary evidentiary hearings; and 15 (iv) obtain case management information from the parties, 16 including the expected length of trial, the likelihood of trial, and any 17 anticipated scheduling difficulties. 18 (g) Non-Testimonial Identification Procedures. 19 (1) Authority. Upon application of the prosecuting attorney, the court 20 by order may direct any person to participate in one or more of the procedures 21 specified in (g)(2) of this rule if affidavit or testimony shows probable cause to believe 22 that: 23 (i) an offense has been committed by one of several persons 24 comprising a narrow focal group that includes the subject person; 25 (ii) the evidence sought may be of material aid in identifying 26 who committed the offense; and 27 (iii) the evidence sought cannot practicably be obtained from 28 other sources. 29 (2) Scope. An order issued under (g)(1) of this rule may direct the 30 person to do or submit to any and all of the following: 31 (i) appear in a line-up;
01 (ii) speak words, phrases or sentences relevant to the case for 02 identification by witnesses; 03 (iii) be fingerprinted; 04 (iv) pose for photographs not involving reenactment of a scene; 05 (v) try on articles of clothing; 06 (vi) permit the taking of specimens of material under the 07 person's fingernails; 08 (vii) permit the taking of samples of blood, hair, and other 09 materials of the person's body which involve no unreasonable intrusion thereof; 10 (viii) provide specimens of the person's handwriting; 11 (ix) submit to a reasonable physical or medical inspection of the 12 person's body. 13 (3) Right to Counsel. When issuing an order under (g)(1) of this rule, 14 the court shall also order that the person be represented by counsel or waive the right 15 to be represented by counsel before being required to appear in a lineup, give a 16 specimen of handwriting, or speak for identification by witnesses to an offense. 17 (h) Material not in Possession or Control of Prosecuting Attorney; Confidential 18 Records. 19 (1) Whenever defense counsel provides notice to the prosecuting attorney 20 and designates and requests production of material or information that is not in the 21 possession or control of the prosecuting attorney, other than confidential records under 22 (h)(2) of this rule, but would be discoverable if in the possession or control of the 23 prosecuting attorney, the court shall issue suitable subpoenas or orders to cause such 24 material to be made available to defense counsel. 25 (2) If a defendant makes a particularized showing that confidential 26 records not in the possession of the prosecuting attorney are likely to contain relevant 27 information that would negate guilt, reduce the defendant's punishment, or establish bias 28 on the part of a witness, the court may conduct an in camera review of the records upon 29 prior notice to the person who is the subject of the records and the agency keeping the 30 records. If the court determines during its in camera review that such information exists, 31 the court shall provide (i) a copy of that portion of the records that contains the
01 information to the defense, (ii) a copy of the material provided to the defense to the 02 prosecution, except for any statements by the defendant the disclosure of which would 03 violate the defendant's right against compulsory self-incrimination, and shall enter an 04 order that a hearing be held before the information may be introduced, used, or 05 mentioned during an open court proceeding. The hearing conducted by the court will 06 be outside the presence of the jury in order to determine whether the probative value of 07 the evidence is outweighed by an unwarranted invasion of privacy of the subject of the 08 records or an unwarranted hampering of the ability of the agency to collect records. The 09 hearing to determine admissibility shall be conducted in camera if there is a danger of 10 unwarranted invasion of privacy. 11 (i) As used in this rule, 12 (1) "oral statement" means the substance of a statement of any kind by 13 a person, whether or not reflected in any existing writing or recording; 14 (2) "written or recorded statement" means 15 (i) any statement made by a person in writing that is signed, 16 adopted, or approved by that person; or 17 (ii) the substance of a statement of any kind made by a person 18 that is embodied or summarized in a writing or recording, whether or not 19 specifically signed or adopted by that person; the term is intended to include 20 statements contained in police or investigative reports, but does not include 21 attorney work product or notes taken by the attorney. 22 * Sec. 2. PROVISIONS OF SEC. 1 NOT SEVERABLE. Notwithstanding AS 01.10.030, 23 the provisions of sec.1 of this Act are not severable. 24 * Sec. 3. RETROACTIVITY. This Act is retroactive and applies to all criminal cases 25 pending on or arising after the effective date of this Act. 26 * Sec. 4. This Act supersedes Criminal Rule 16 and amendments to Criminal Rule 16 27 adopted by the Alaska Supreme Court before the effective date of this Act. 28 * Sec. 5. This Act takes effect July 15, 1995.