CSHB 25(FIN): "An Act revising Rule 16, Alaska Rules of Criminal Procedure, relating to discovery and inspection in criminal proceedings; and providing for an effective date."
00CS FOR HOUSE BILL NO. 25(FIN) 01 "An Act revising Rule 16, Alaska Rules of Criminal Procedure, relating to 02 discovery and inspection in criminal proceedings; and providing for an effective 03 date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. Rule 16, Alaska Rules of Criminal Procedure, is repealed and reenacted to 06 read: 07 Rule 16. Discovery. 08 (a) Objectives of Pretrial Discovery. 09 (1) Procedures before trial should, consistent with the constitutional 10 rights of the defendant, the victim, and the prosecution, 11 (i) promote a fair and expeditious disposition of the charges; 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 Defendant. 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 defendant; 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, or 28 which were obtained from or belong to the defendant, other than models, charts, 29 pictures, compilations of evidence, or other demonstrative evidence created by or on 30 behalf of the prosecuting attorney; 31 (5) any record of prior criminal convictions of the defendant and of
01 persons whom the prosecuting attorney is likely to call as witnesses at the hearing or 02 trial; 03 (6) any material, documents, or information relating to lineups, 04 showups, and picture or voice identifications in relation to the case; 05 (7) any material or information within the prosecuting attorney's 06 possession or control that tends to negate the guilt of the defendant as to the offense 07 or would tend to reduce the defendant's punishment therefor; 08 (8) any relevant material or information relating to the guilt or 09 innocence of the defendant that has been provided by an informant, and any electronic 10 surveillance, including wiretapping, of conversations to which the defendant or the 11 defendant's attorney was a party, or of premises of the defendant or the defendant's 12 attorney; 13 (9) any relevant material or information regarding the relationship, if 14 any, of witnesses to the prosecuting authority, including the nature and circumstances 15 of any agreement, understanding, or representation between the prosecution and the 16 witness that constitutes an inducement for the cooperation or testimony of the witness; 17 however, the prosecution does not have to disclose any payments or provision for 18 witness travel, housing, or meals in order to enable the witness to attend a specific 19 court proceeding; 20 (10) any relevant material and information regarding 21 (i) searches and seizures of the property or person of the 22 defendant; and 23 (ii) the acquisition of statements from the defendant; 24 (11) if the prosecution is likely to use character, reputation, or other act 25 evidence relating to the defendant, notice of that likelihood and disclosure of the 26 substance of that evidence; 27 (12) unless a different date is set by the court, as soon as known and 28 no later than 45 days before trial, the prosecution shall provide the defense with any 29 written report or written statement of experts made in connection with the case; with 30 respect to each expert the prosecution is likely to call at trial or another court 31 proceeding, (i) the prosecution shall also provide to the defendant the address, phone
01 number, and a curriculum vitae of the expert, and (ii) if a written report by the expert 02 is not made or is not adequate to provide fair notice of the expert's opinion and the 03 basis for that opinion, (aa) the prosecution shall provide the defendant with a written 04 description of the substance of the proposed testimony, including the expert's opinion 05 and the basis for that opinion, and (bb) upon request, the defense is entitled to conduct 06 a telephonic or in-person deposition or recorded interview of the expert, at the expense 07 of the defense; failure to provide timely disclosure entitles the defendant to a 08 continuance; if the court finds that a continuance is not an adequate remedy under the 09 circumstances of the case, the court may impose other sanctions, including prohibiting 10 the prosecutor from calling the expert at trial or declaring a mistrial; 11 (13) upon a reasonable request showing materiality to the preparation 12 of the defense, the court in its discretion may require disclosure to defense counsel of 13 relevant and admissible information not covered by (b)(1) - (12) of this rule. 14 (c) Disclosure to the Prosecution. Except as is otherwise provided as to 15 matters not subject to disclosure and protective orders, the defense shall disclose the 16 following to the prosecution and make available for inspection and copying, as 17 appropriate: 18 (1) the names, addresses, and phone numbers, if known, of persons the 19 defendant is likely to call as witnesses and their written or recorded statements; 20 (2) any books, papers, documents, photographs, or tangible objects the 21 defense is likely to use as evidence at a hearing or trial and which are not otherwise 22 disclosed under (b) of this rule, other than models, charts, pictures, compilations of 23 evidence, or other demonstrative evidence created by or on behalf of the defendant's 24 attorney; 25 (3) if the defense is likely to use character, reputation, or other act 26 evidence not relating to the defendant, notice of that likelihood and disclosure of the 27 substance of that evidence; 28 (4) any relevant material or information regarding the relationship, if 29 any, of witnesses to defense counsel and the defendant, including the nature and 30 circumstances of any agreement, understanding, or representation between the defense 31 and the witness that constitutes an inducement for the cooperation or testimony of the
01 witness; however, the defense does not have to disclose any payments or provisions 02 for witness travel, housing, or meals in order to enable the witness to attend a specific 03 court proceeding; 04 (5) unless a different date is set by the court, no later than 10 days 05 before trial in misdemeanor cases and 30 days in felony cases, notice of defenses if 06 the defendant is likely to rely upon a defense of alibi, justification, duress, entrapment, 07 or other statutory or affirmative defense; failure to provide timely notice shall entitle 08 the prosecutor to a continuance; if the court finds that a continuance is not an adequate 09 remedy under the circumstances of the case, the court may impose other sanctions, 10 including prohibiting the defendant from asserting the designated defense; 11 (6) unless a different date is set by the court, as soon as known and no 12 later than 30 days before trial, the defense shall provide the prosecution with the 13 address, phone number, curriculum vitae, and any report or written statement of any 14 expert witness likely to be called at trial or another court proceeding; with respect to 15 each expert, if a written report by the expert is not made or is not adequate to provide 16 fair notice of the expert's opinion and the basis for that opinion, (i) the defense shall 17 provide the prosecution with a written description of the substance of the proposed 18 testimony, including the expert's opinion and the basis for that opinion, and (ii) upon 19 request, the prosecution is entitled to conduct a telephonic or in-person deposition or 20 recorded interview of the expert, at the expense of the prosecution; failure to provide 21 timely disclosure entitles the prosecution to a continuance; if the court finds that a 22 continuance is not an adequate remedy under the circumstances of the case, the court 23 may impose other sanctions, including prohibiting the defense from calling the expert 24 at trial or declaring a mistrial; 25 (7) notice of an insanity defense or a defense of diminished capacity 26 due to mental disease or defect in compliance with AS 12.47; 27 (8) turn over to the prosecutor any physical evidence of the offense 28 received by defense counsel; if the physical evidence is received from the attorney's 29 client or the client's agent or acquired as a direct result of information communicated 30 by the client, defense counsel may not be compelled to provide any information 31 concerning the source of the evidence or the manner in which it was obtained; in such
01 cases, the prosecutor may not reveal the source of the evidence to the jury; if the 02 physical evidence is not received from the client or the client's agent or acquired as 03 a direct result of information communicated by the client, defense counsel shall reveal 04 the manner in which the physical evidence was obtained unless that information is 05 otherwise privileged; 06 (9) upon a reasonable request showing materiality to the preparation of 07 the prosecution, the court in its discretion may require disclosure to the prosecution of 08 relevant and admissible information not covered by (c)(1) - (8) of this rule. 09 (d) Regulation of Discovery. 10 (1) Timing of Discovery. 11 (i) Defense counsel has an immediate obligation to disclose 12 evidence subject to (c)(8) of this rule. 13 (ii) When the prosecution has provided the discovery required 14 under (b)(1) - (8) of this rule, the prosecuting attorney shall provide written 15 notice to defense counsel or to the defendant if the defendant is not 16 represented by counsel. Within 10 days of receiving notice from the 17 prosecuting attorney, or such later date as agreed by the prosecuting attorney 18 or ordered by the court, the defense shall provide to the prosecution the 19 discovery required under (c)(1) and (2) of this rule. 20 (iii) Discovery required of the prosecution under (b)(9) - (11) 21 and of the defense under (c)(3) and (4) of this rule shall be provided as agreed 22 by the parties or as ordered by the court. 23 (iv) Other discovery required by (b) and (c) of this rule shall be 24 provided as set out in the specific provision or as ordered by the court. 25 (2) Advice to Refrain From Discussing Case. Except as is otherwise 26 provided as to matters not subject to disclosure and protective orders, neither counsel 27 for the parties nor other prosecution or defense personnel shall advise persons (except 28 the defendant) having relevant material or information to refrain from discussing the 29 case with opposing counsel or showing opposing counsel any relevant material, nor 30 shall they otherwise impede opposing counsel's investigation of the case. 31 (3) Additional or Newly Discovered Information. If, subsequent to
01 compliance with these rules or orders issued pursuant thereto, a party discovers 02 additional material or information which is subject to disclosure, that party shall 03 promptly notify the other party or the other party's counsel of its existence. If the 04 additional material or information is discovered during trial, the court shall also be 05 notified. 06 (4) Materials to Remain in Exclusive Custody of Attorney. 07 (i) Materials furnished to an attorney pursuant to these rules 08 shall remain in the attorney's exclusive custody, shall be used only for the 09 purposes of conducting the case, and shall be subject to other terms and 10 conditions that the court may provide if the information is 11 (aa) a criminal history record of a victim or witness; 12 (bb) a medical, psychiatric, psychological, or counseling 13 record of a victim or witness; 14 (cc) an adoption record; 15 (dd) a record that is confidential under as 47.10.090 or 16 a similar law in another jurisdiction; 17 (ee) a report of a presentence investigation of a victim 18 or witness prepared pursuant to Criminal Rule 32 or a similar law in 19 another jurisdiction; 20 (ff) a record of the Department of Corrections other than 21 an incident report relating to the crime with which the defendant is 22 charged; or 23 (gg) any other record that the court orders be kept in the 24 exclusive custody of the attorney. 25 (ii) An attorney shall not disclose to a defendant the residence 26 or business address or telephone number of a victim or witness, obtained from 27 information provided under this rule, even if the defendant is acting as co- 28 counsel. If the address and telephone numbers of all victims and witnesses have been 29 obliterated, materials that had contained the address or telephone number of a victim or 30 witness may be provided to a defendant proceeding without counsel only as allowed by 31 AS 12.61.120.
01 (iii) Notwithstanding a defendant's status as co-counsel, 02 materials covered by (d)(4)(i) or (ii) of this rule shall remain in the exclusive 03 custody of the defendant's attorney. If an attorney violates (d)(4)(i) or (ii) of 04 this rule, regardless of whether the defendant is co-counsel, the court shall refer 05 the attorney's violation to the Disciplinary Board of the Alaska Bar Association 06 as a grievance. 07 (iv) If a defendant is proceeding without counsel, materials 08 covered by (d)(4)(i) of this rule may be provided to the defendant. If materials 09 are provided to an unrepresented defendant under this paragraph, the court shall 10 order that the materials remain in the defendant's exclusive custody, be used 11 only for purposes of conducting the case, and be subject to other terms, 12 conditions, and restrictions that the court may provide. The court shall also 13 inform the defendant that violation of an order issued under this paragraph is 14 punishable as a contempt of court. 15 (5) Restriction or Deferral of Disclosure of Information. Upon a 16 showing of cause, the court may at any time order that specified disclosure be 17 restricted or deferred, or make such other order as is appropriate, provided that all 18 material and information to which a party is entitled shall be disclosed in time to 19 permit the party's counsel to make beneficial use thereof. 20 (6) Material Partially Discoverable. When some parts of certain 21 material are discoverable under these rules, and other parts are not discoverable, as 22 much of the material shall be disclosed as is consistent with this rule. Excision of 23 certain material and disclosure of the balance shall be preferred to withholding of the 24 whole. Material excised pursuant to court order shall be sealed and preserved in the 25 records of the court, and shall be made available to the court of appeals and the 26 supreme court in the event of an appeal. 27 (7) Denial or Regulation of Disclosure--Disclosure to Court in Camera-- 28 Record of Proceedings. Upon request of any party, the court may permit: 29 (i) any showing of cause for denial or regulation of disclosure; 30 or 31 (ii) any portion of any showing of cause for denial or regulation
01 of disclosure to be made to the court in camera ex parte; a record shall be 02 made of such proceedings; if the court enters an order granting relief following 03 such a showing, the entire record of the proceedings shall be sealed and 04 preserved in the records of the court, to be made available to the court of 05 appeals and the supreme court in the event of an appeal. 06 (8) Information Within Possession or Control of Other Members of 07 Prosecuting Attorney's or Defense Counsel's Staff. The prosecuting attorney's or 08 defense counsel's obligations under this rule extend to material and information in the 09 possession or control of 10 (i) members of the prosecuting attorney's or defense counsel's 11 staff, respectively; and 12 (ii) any others who have participated in the investigation or 13 evaluation of the case and who either regularly report or with reference to the 14 particular case have reported to the prosecuting attorney's office or defense 15 counsel, respectively. 16 (9) Legal Research and Records of Prosecuting Attorney or Defense 17 Counsel. Disclosure shall not be required of legal research or those portions of 18 records, correspondence, reports or memoranda that contain the opinions, theories, or 19 conclusions of the 20 (i) prosecuting attorney or members of the prosecuting 21 attorney's legal staff; or 22 (ii) defense counsel or members of the defense counsel's legal 23 staff. 24 (e) Sanctions. 25 (1) Failure to Comply with Discovery Rule or Order. If at any time 26 during the course of the proceedings it is brought to the attention of the court that a 27 party has failed to comply with an applicable discovery rule or an order issued 28 pursuant thereto, the court shall order such party to permit the discovery of material 29 and information not previously disclosed or enter such other order as it deems just 30 under the circumstances. 31 (2) Willful Violations. Willful violation by counsel of an applicable
01 discovery rule or an order issued pursuant thereto may subject counsel to appropriate 02 sanctions by the court. 03 (f) Omnibus Hearing. 04 (1) Time for Hearing--When Set. If the defendant is charged with a 05 felony, the court shall set a time for an omnibus hearing when a plea of not guilty is 06 entered. The omnibus hearing shall be scheduled for a time when the briefing of 07 pretrial motions should be complete. 08 The omnibus hearing may be canceled by the court only upon the stipulation 09 of counsel that there are no motions which require hearing and that discovery is 10 complete. Counsel shall also provide the information outlined in (f)(2)(iv) of this rule. 11 The court may set an omnibus hearing in a misdemeanor case. 12 (2) Duties of Trial Court at Hearing. At the omnibus hearing the court 13 shall: 14 (i) ensure that discovery under this rule is complete; 15 (ii) rule on any pending motions which are ripe for decision; 16 (iii) schedule any necessary evidentiary hearings; and 17 (iv) obtain case management information from the parties, 18 including the expected length of trial, the likelihood of trial, and any 19 anticipated scheduling difficulties. 20 (g) Non-Testimonial Identification Procedures. 21 (1) Authority. Upon application of the prosecuting attorney, the court 22 by order may direct any person to participate in one or more of the procedures 23 specified in (g)(2) of this rule if affidavit or testimony shows probable cause to believe 24 that: 25 (i) an offense has been committed by one of several persons 26 comprising a narrow focal group that includes the subject person; 27 (ii) the evidence sought may be of material aid in identifying 28 who committed the offense; and 29 (iii) the evidence sought cannot practicably be obtained from 30 other sources. 31 (2) Scope. An order issued under (g)(1) of this rule may direct the
01 person to do or submit to any and all of the following: 02 (i) appear in a line-up; 03 (ii) speak words, phrases or sentences relevant to the case for 04 identification by witnesses; 05 (iii) be fingerprinted; 06 (iv) pose for photographs not involving reenactment of a scene; 07 (v) try on articles of clothing; 08 (vi) permit the taking of specimens of material under the 09 person's fingernails; 10 (vii) permit the taking of samples of blood, hair, and other 11 materials of the person's body which involve no unreasonable intrusion thereof; 12 (viii) provide specimens of the person's handwriting; 13 (ix) submit to a reasonable physical or medical inspection of the 14 person's body. 15 (3) Right to Counsel. When issuing an order under (g)(1) of this rule, 16 the court shall also order that the person be represented by counsel or waive the right 17 to be represented by counsel before being required to appear in a lineup, give a 18 specimen of handwriting, or speak for identification by witnesses to an offense. 19 (h) Material not in Possession or Control of Prosecuting Attorney; Confidential 20 Records. 21 (1) Whenever defense counsel provides notice to the prosecuting attorney 22 and designates and requests production of material or information that is not in the 23 possession or control of the prosecuting attorney, other than confidential records under 24 (h)(2) of this rule, but would be discoverable if in the possession or control of the 25 prosecuting attorney, the court shall issue suitable subpoenas or orders to cause such 26 material to be made available to defense counsel. 27 (2) If a defendant makes a particularized showing that confidential 28 records not in the possession of the prosecuting attorney are likely to contain relevant 29 information that would negate guilt or reduce the defendant's punishment, the court may 30 conduct an in camera review of the records after providing an opportunity to be heard 31 to the person who is the subject of the records and the agency keeping the records. If
01 the court determines during its in camera review that such information exists, the court 02 shall (i) provide a copy of that portion of the records that contains the information to the 03 defense, (ii) provide a copy of the material provided to the defense to the prosecution, 04 except for any statements by the defendant the disclosure of which would violate the 05 defendant's right against compulsory self-incrimination, and (iii) enter an order that a 06 hearing be held before the information may be introduced, used, or mentioned during an 07 open court proceeding. The hearing conducted by the court under (iii) of this section 08 will be outside the presence of the jury, and the court shall determine how the records 09 may be used after taking into consideration, among other things the court may find 10 appropriate, whether use of the records violates the right of privacy of the subject of the 11 records, hampers the ability of the agency to collect records, or violates the constitutional 12 or statutory rights of crime victims. The hearing to determine admissibility shall be 13 conducted in camera if there is a danger of unwarranted invasion of privacy. 14 (i) As used in this rule, 15 (1) "oral statement" means the substance of a statement of any kind by 16 a person, whether or not reflected in any existing writing or recording; 17 (2) "written or recorded statement" means 18 (i) any statement made by a person in writing that is signed, 19 adopted, or approved by that person; or 20 (ii) a statement of any kind made by a person that is embodied 21 or summarized in a writing or recording, whether or not specifically signed or 22 adopted by that person; the term is intended to include statements contained in 23 police or investigative reports, or notes taken by police officers or investigators, 24 but does not include attorney work product or notes taken by the attorney. 25 * Sec. 2. PROVISIONS OF SEC. 1 NOT SEVERABLE. Notwithstanding AS 01.10.030, 26 the provisions of sec.1 of this Act are not severable. 27 * Sec. 3. RETROACTIVITY. This Act is retroactive and applies to all criminal cases 28 pending on or arising after the effective date of this Act. 29 * Sec. 4. This Act supersedes Criminal Rule 16 and amendments to Criminal Rule 16 30 adopted by the Alaska Supreme Court before the effective date of this Act. 31 * Sec. 5. This Act takes effect July 1, 1996.