Legislature(1995 - 1996)
01/25/1996 01:38 PM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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 1 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 2 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 3 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 4 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 5 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. 6 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.