Legislature(1995 - 1996)

01/25/1996 01:38 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HB 25     "An Act revising Rule 16, Alaska Rules of Criminal                 
            Procedure, relating to discovery and inspection in                 
            criminal  proceedings,  to  adopt  the  comparable                 
            federal rule."                                                     
                                                                               
            CSHB 25 (FIN) was reported out of Committee with a                 
            "do  pass"  recommendation  and five  zero  fiscal                 
            notes:  two by  the Department of  Administration,                 
            one by the Department of Public Safety, one by the                 
            Department of  Law, and  one by  the Alaska  Court                 
            System.                                                            
                                                                               
  HOUSE BILL NO. 25                                                            
                                                                               
       "An  Act  revising Rule  16,  Alaska Rules  of Criminal                 
       Procedure,  relating  to  discovery and  inspection  in                 
       criminal proceedings, to  adopt the comparable  federal                 
                                                                               
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       rule."                                                                  
                                                                               
  Representative  Parnell   gave  a  brief  overview   of  the                 
  legislation.     He  explained  that   discovery  in   legal                 
  proceedings is the pretrial  exchange of information between                 
  parties.  He observed that in a civil context attorneys have                 
  to disclose any relevant information that is not privileged.                 
  He  stated   that  the  legislation   implements  reciprocal                 
  discovery in the state of Alaska.                                            
                                                                               
  Representative Parnell referred to the Alaska Supreme  Court                 
  decision, State versus Scott (1974).   He observed that  the                 
  Court ruled that requiring an accused to disclose names  and                 
  addresses of  witnesses and evidence relating to an alibi to                 
  be  used  by  the  defense  violated the  defendant's  right                 
  against self  incrimination.   He asserted  that the  ruling                 
  resulted in the waste of significant judicial resources.  He                 
  noted that  reciprocal discovery law  would prevent surprise                 
  witnesses from being introduced in the middle of a trial.                    
                                                                               
  Representative  Parnell  provided  members with  two  spread                 
  sheets  prepared by  the  Department  of  Law  demonstrating                 
  differences between the current law  and changes proposed in                 
  HB  25 (Attachment 1).  He  reviewed Attachment 1.  He noted                 
  that the prosecution is required  to immediately provide the                 
  defense  with  lists  of  all  known witnesses,  written  or                 
  recorded  statements, documents,  photos and  other evidence                 
  likely to  be  used,  rap sheets  for  witnesses  likely  to                 
  testify for the  State, information about line-ups  or other                 
  identification,  evidence tending to  negate guilt or reduce                 
  the defendant's  punishment, and information provided  by an                 
  informant or  by electronic surveillance.  Within 10 days of                 
  the prosecution's initial release of information the defense                 
  is required to provide  similar information.  He  noted that                 
  the legislation provides time-lines for the further exchange                 
  of information prior to the trial.                                           
                                                                               
                                                                               
  Representative  Parnell  asserted that  reciprocal discovery                 
  promotes justice while preventing  unnecessary costly delays                 
  and  trials.    He  maintained  that the  defendant's  right                 
  against  self  incrimination   is  still  preserved.     The                 
  defendant does not have to provide  information that they do                 
  not intend to use at trial.                                                  
                                                                               
  Representative  Parnell  provided  members  with a  proposed                 
  committee substitute, Work Draft #9-LS0146\N (copy on file.)                 
  Representative   Parnell  MOVED  to  adopt  Work  Draft  #9-                 
  LS0146\N.  There being NO OBJECTION, it was so ordered.                      
                                                                               
  Representative Parnell noted that his office  worked closely                 
  with the Department  of Law, the  Office of Public  Advocacy                 
                                                                               
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  and the Public Defender Agency.  He emphasized that with the                 
  exception  of  a  few  minor   points  all  parties  are  in                 
  agreement.                                                                   
                                                                               
  DEAN GUANELI,  CHIEF ASSISTANT  ATTORNEY, DEPARTMENT  OF LAW                 
  spoke in  support of HB  25.   He asserted that  the Court's                 
  ruling has made the exchange of information a one way street                 
  with the  information flowing  from the  prosecution to  the                 
  defense.  He maintained that the state of Alaska's discovery                 
  laws are the  most restrictive in  the nation.  He  observed                 
  that until six  months ago the  defense only had to  provide                 
  early notice if a psychiatric defense  was going to be used.                 
                                                                               
                                                                               
  Mr. Guaneli observed  that the sponsor decided  not to model                 
  the legislation on federal rules of evidence.  He maintained                 
  that under federal rules of evidence information is hid from                 
  the defense until the middle of  the prosecution's case.  He                 
  observed that the House Judiciary Committee discussed having                 
  both sides exchange information at  the beginning of a case.                 
  He commented  that the  Public Defender  Agency pointed  out                 
  that immediate exchange by both parties would place a burden                 
  of  immediate  investigation  on  the  Agency.   The  Public                 
  Defender  Agency  indicated that  it  would be  difficult to                 
  investigate a case  until information  is received from  the                 
  prosecution.                                                                 
                                                                               
  Mr.  Guaneli   summarized  that   the  current   legislation                 
  identifies categories  of information  that the  prosecution                 
  and defense must disclose and the timing of the disclosures.                 
  He  observed  that  the   legislation  closely  follows  the                 
  American Bar  Association's rule  on discovery.   The  rules                 
  regarding  discovery for  the prosecution  are not  changed.                 
  The  timing regarding  the prosection's disclosure  would be                 
  changed.  He reviewed  Attachment 1.  He noted  that defense                 
  witnesses appearing at  trial are largely a surprise  to the                 
  prosection.  This  results in requests for  postponements by                 
  the  prosection to  allow  investigation.   The  legislation                 
  requires the defense to provide  a list of their  witnesses.                 
  The legislation does  not require  that the defense  provide                 
  the  prosection  with  the names  of  individuals  they have                 
  interviewed if they are not going to testify.  He emphasized                 
  that  evidence  to  be used  by  the  defense regarding  the                 
  character of a victim  or witness should be provided  to the                 
  prosecution.  He concluded that the legislation requires the                 
  exchange  of  information  that is  necessary  for  fair and                 
  speedy adjudication.                                                         
                                                                               
  Mr.  Guaneli  noted  that  the  legislation  creates  a  new                 
  procedure  to   allow  defendants  to   obtain  confidential                 
  information  that   is  not   in  the   possession  of   the                 
  prosecution.  It also sets standards for courts to follow in                 
                                                                               
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  granting such requests.   He observed that  victims' records                 
  from  counseling centers and  police personnel records would                 
  be affected.  He maintained  that the legislation creates  a                 
  uniformed  standard  that  judges  can  apply  when deciding                 
  whether to turn  over information  that the prosection  does                 
  not  have  or  know  about.     He  maintained  that  police                 
  departments are in favor of the  provision.  He acknowledged                 
  that  some victim's  groups  may not  be satisfied  with the                 
  provision.   He asserted that the legislation strikes a fair                 
  balance.                                                                     
                                                                               
  Mr. Guaneli reiterated that  the legislation is inconsistent                 
  with  the  Alaska Supreme  Court's  opinion in  State versus                 
  Scott (1974).  He acknowledged that the legislation would be                 
  challenged.    He  contended that  the  Supreme  Court would                 
  reverse itself.  He stressed that Scott is the only decision                 
  of its  type in any  court in the  United States.   He noted                 
  that  a  constitutional amendment  was  passed to  reverse a                 
  similar decision in the state of California.                                 
                                                                               
  Representative Navarre  questioned if the  legislation would                 
  increase the number of convictions by the prosecution.   Mr.                 
  Guaneli   stated  that   the   legislation  might   increase                 
  convictions.  He noted that  disclosure by the defense would                 
  allow  better   investigation  and  lessen   the  need   for                 
  postponements.  He acknowledged  that the tactical advantage                 
  of   surprise  would  be  removed  from  the  defense.    He                 
  summarized that justice would be better served by passage of                 
  the legislation.                                                             
                                                                               
  In response  to a  question by  Representative Navarre,  Mr.                 
  Guaneli  noted  that he  had worked  for  five months  as an                 
  intern with  the Public  Defender Agency.   He  compared the                 
  caseloads of the Public Defender Agency and the prosecution.                 
  He maintained  that their caseload  ratios are similar.   He                 
  questioned if a direct comparison can be made between police                 
  and defense investigative  resources, but acknowledged  that                 
  police resources  are greater.   He  emphasized that  police                 
  functions encompass more than investigative activities.   He                 
  observed that the function of a defense attorney is to prove                 
  their client's innocence.                                                    
                                                                               
  Representative   Navarre   asked  for   further  information                 
  regarding the  grand jury  process.   Mr. Guaneli  explained                 
  that the grand jury record is available to the defense if an                 
  indictment  occurs.  He emphasized  that the grand jury only                 
  determines if there is enough evidence available to pursue a                 
  trial.   He stressed that the grand jury provides a check on                 
  the  prosecutor's  authority.   Prosecutors must  convince a                 
  panel of ordinary  citizens that there is a case.   He noted                 
  that  an  accused may  not  have  an attorney  prior  to the                 
  indictment.  He emphasized  that a grand jury  proceeding is                 
                                                                               
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  not intended to be a  mini trial.  He stressed that it  is a                 
  required tool of the prosecution.                                            
                                                                               
  Representative Therriault  asserted that  a prosecutor  does                 
  not prosecute if  he knows  that a person  is innocent.   He                 
  stressed that a public defender defends even if he knows the                 
  defendant is guilty.                                                         
                                                                               
  In response  to  a question  by Representative  Grussendorf,                 
  Representative  Parnell  explained  that discussion  occured                 
  between the Public Defender Agency and the Department of Law                 
  regarding the release of confidential  records.  Mr. Guaneli                 
  added that the Public Defender Agency expressed concern that                 
  the defense  would be  required to  summarize statements  of                 
  witnesses.  An agreement was reached regarding disclosure of                 
  witness records.  Both will be  required to provide lists of                 
  witnesses likely to be used at trial and written or recorded                 
  statements when available.  In addition, he pointed out that                 
  the prosecution  must turn over information  regarding every                 
  witness contacted.                                                           
                                                                               
  Co-Chair  Foster  questioned  if the  legislation  places an                 
  additional financial burden on the Public Defender Agency.                   
                                                                               
  Representative Martin  referred to a  $370.7 thousand dollar                 
  fiscal impact note approved by the House Judiciary Committee                 
  for  the  Department   of  Administration.    Representative                 
  Parnell  explained  that  the  fiscal  note pertained  to  a                 
  previous version that contained an opt in/out provision.                     
                                                                               
  LAUREE  HUGONIN,  EXECUTIVE  DIRECTOR,   ALASKA  NETWORK  ON                 
  DOMESTIC VIOLENCE AND SEXUAL ASSAULT testified in support of                 
  reciprocal  discovery.   She  asserted  that the  search for                 
  truth would be aided by the legislation.  She noted that the                 
  committee substitute  addresses their concern  regarding the                 
  victim's right  to confidentiality.   She  pointed out  that                 
  only two states  require an  in-camera hearing upon  defense                 
  submission of  a pretrial discovery  motion.  House  Bill 25                 
  would add Alaska  to the list.  She expressed  the hope that                 
  safeguards will  be in place to assure  that victim's rights                 
  are  protected during  in-camera viewings, so  that "victims                 
  will continue to  come forward  to seek help  in ending  the                 
  violence being perpetrated against them."                                    
                                                                               
  JAYNE  ANDREEN,  EXECUTIVE  DIRECTOR,  COUNCIL  ON  DOMESTIC                 
  VIOLENCE  AND SEXUAL ASSAULT testified  in support of HB 25.                 
  She  expressed concern  that  the rights  of  an accused  be                 
  balanced  with  the  rights  of  the  victim.   She  gave  a                 
  hypothetical   account   demonstrating   the    impact   the                 
  legislation might have on  a victim of sexual assault.   She                 
  noted that  80 percent  of sexual  assault cases  involve an                 
  acquaintance, friend or family member.   She emphasized that                 
                                                                               
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  a  victim  has no  prior knowledge  of  what they  will face                 
  during  a trial.    She observed  that  notification that  a                 
  victim's  character  is going  to  be brought  into question                 
  allows  the  victim   to  be  emotionally  prepared.     She                 
  maintained  that the  legislation  balances victim's  rights                 
  with those of the accused.                                                   
  (Tape Change, HFC 96-20, Side 2)                                             
                                                                               
  Representative  Grussendorf  expressed   concern  that   the                 
  workload  not  be  shifted  to  burden the  Public  Defender                 
  Agency.  He  maintained that an increase  in workload should                 
  be accompanied by an increase in funding.                                    
                                                                               
  Representative Parnell disagreed that the legislation  would                 
  require  more  funding.   He  asserted that  the legislation                 
  shifts  the  timetable   for  disclosure  without   creating                 
  additional  work.  He reiterated that  the fiscal note dated                 
  2/3/95 for the  Department of Administration referred  to an                 
  earlier version which contained the opt in/out provision.                    
                                                                               
  JOHN SALEMI, DIRECTOR, PUBLIC DEFENDER AGENCY, DEPARTMENT OF                 
  ADMINISTRATION agreed that the 2/3/95  fiscal note belong to                 
  an earlier version  of HB  25.   He noted  that the  updated                 
  accompanying fiscal note is zero.                                            
                                                                               
  In response  to a  question by  Representative Navarre,  Mr.                 
  Salemi explained that the legislation  changes the degree to                 
  which information is exchanged between parties in a criminal                 
  case.  He summarized that  under current law the prosecution                 
  turns over  all  relevant information  to the  defense.   He                 
  reiterated  that   the  legislation   would  establish   new                 
  obligations for  the defense to turn over to the prosecution                 
  information  which may  be  relevant to  a  defense it  will                 
  utilize at a  jury trial.   He briefly summarized the  State                 
  versus Scott  decision.  He  emphasized that the  element of                 
  surprise  would  be eliminated.    He  pointed  out that  90                 
  percent of cases result in disposition without trial.                        
                                                                               
  In response  to a  question by  Representative Navarre,  Mr.                 
  Salemi observed  that a  comparison between  state resources                 
  and  those  available  to  the  Public  Defender  Agency  is                 
  difficult.   He  pointed out  that the  State has  different                 
  obligations than the Public Defender Agency.                                 
                                                                               
  Representative   Grussendorf   observed   that   prosecuting                 
  attorneys  have  extensive  resources.    In response  to  a                 
  question by  Representative Grussendorf, Mr.  Guaneli stated                 
  that  he  does  not anticipate  that  the  legislation would                 
  constitutionally  disadvantage  defendants.   He  emphasized                 
  that it  is impossible to ascertain all the ramifications of                 
  the legislation.                                                             
                                                                               
                                                                               
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  Representative  Grussendorf  asked if  the  legislation will                 
  create more work  for defense attorneys.   Mr. Salemi stated                 
  that the legislation will increase clerical work.   He noted                 
  the lack of clerical support in the Public Defender  Agency.                 
  He emphasized the  difficulty in  assessing the quantity  of                 
  new work the legislation will require.                                       
                                                                               
  Representative Grussendorf questioned if the Public Defender                 
  Agency  has  adequate  funding  to  function.    Mr.  Salemi                 
  answered that  "the Public Defender Agency  has insufficient                 
  present resources to carry out its constitutional mandate in                 
  some situations."  He observed the difficulty of quantifying                 
  the impact of new legislation.  He pointed out  that the sum                 
  of legislation passed in the past few years would add up  to                 
  a significant  fiscal note.   He  noted that  the Agency  is                 
  projecting a $217.0 thousand dollar shortfall for FY 96.                     
                                                                               
  Representative   Navarre   expressed    support   for    the                 
  legislation.  He emphasized that  the Public Defender Agency                 
  needs more  money.  He  added that the  Prosecutor's Office,                 
  Alaska  State  Troopers and  Department of  Corrections also                 
  need  more  money.   He  maintained that  passing additional                 
  bills to "get tougher  on crime" does less than  putting the                 
  resources into enforcement agencies, prosecutors offices and                 
  the Public Defender Agency.                                                  
                                                                               
  In response  to a  question by  Representative Parnell,  Mr.                 
  Salemi  stated  that  the  accompanying   zero  fiscal  note                 
  accurately reflects his  best estimate of the  impact of the                 
  legislation.                                                                 
                                                                               
  Representative Kohring spoke in support of the  legislation.                 
  He  MOVED  to report  CSHB 25  (FIN)  out of  Committee with                 
  individual recommendations and with  the accompanying fiscal                 
  notes.  There being NO OBJECTION, it was so ordered.                         
                                                                               
  CSHB 25 (FIN) was reported out of Committee with a "do pass"                 
  recommendation  and five  zero  fiscal notes:    two by  the                 
  Department  of  Administration,  one  by  the  Department of                 
  Public Safety, one by the Department of Law,  and one by the                 
  Alaska Court System.                                                         

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