Legislature(1995 - 1996)
01/27/1995 01:05 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HJUD - 01/25/95 HB 25 - CRIMINAL DISCOVERY RULES Number 050 REPRESENTATIVE SEAN PARNELL described a proposed committee substitute for HB 25. He understood and recognized that current language in Alaska Criminal Rules is quite one-sided to the defense. There should be more discovery available between the prosection and the defense. One way to accomplish this is through reciprocal discovery, a system under the federal rule whereby when certain conditions are met, each side exchanges information. He referenced the Scott v. State case which basically said that the criminal defendant, as we know, has the right against compelled self incrimination, and that reciprocal discovery is likely to violate that right under a lot of circumstances. We would be compelling the defendant to turn over information that would incriminate them. REPRESENTATIVE PARNELL explained that through consultation with the Department of Law, what he proposes is a committee substitute which provides for an "opt in" to reciprocal discovery, giving the defendant the ability to opt in to full and free discovery. You are not compelling them, you are giving them a choice. On page 1, the "opt in" provision is on line 10. It says that within ten days of arraignment, a defendant shall file a written notice stating whether the defendant elects to participate in discovery under this rule. The failure to file a notice shall be deemed an election not to proceed under this rule. If the defendant elects not to proceed under this rule, discovery is governed by AS 12.45.050 through AS 12.45.082; which are some rather minimal discovery requirements, requiring the prosecution to turn over certain documents at certain times. REPRESENTATIVE PARNELL noted other changes to the rule are on page 5, line 5. It says "the trial courts shall require that the prosecuting attorney be informed of ..." That was changed from a "may" to a "shall." On page 5, lines 18 - 26, the section marked "Defenses," that is also a change to the current rule. Both Dean Guaneli and John Salemi can address those. REPRESENTATIVE PARNELL summed up his statements, saying what the bill does, is to permit the defendant to opt in to discovery, and if they do, then the prosecution is required to turn over matters they have discovered as well. Number 165 REPRESENTATIVE JOE GREEN moved that version "C", dated January 26, be adopted as the committee's working draft. As there was no objection, the draft was adopted. Number 170 REPRESENTATIVE DAVID FINKELSTEIN asked how many changes were in the CS. Number 175 REPRESENTATIVE PARNELL felt the Department of Law could answer that best. He said perhaps a better way would have been to amend the court rule, rather than appeal and reenact; but he wanted the Department of Law to address why they chose to do it this way. The substantive change is the "opt in" provision. Number 190 REPRESENTATIVE FINKELSTEIN asked what would happen if you did not have the same discovery access to the prosecution's case, if you were the defense and decided not to opt in. Number 195 REPRESENTATIVE PARNELL replied that it would be limited to the statutory provisions of AS 12.45.050 - AS 12.45.082. He said the whole purpose of the bill is to avoid a trial by ambush and to permit the flow of free discovery. This has been discussed before, by the Court Rules Committee, and one of the concerns discussed was the defendant would not opt in, choosing instead to keep information to themselves. However, Florida has a very high opt in rate (99.9 percent). Number 225 REPRESENTATIVE GREEN asked about the right of defense against self incrimination, and where this deviates from other tests that may require some bodily fluid, or breathalizers. There is a presumption if you are arrested for driving while intoxicated and do not do one of the these tests, there is an automatic presumption of guilt. Will there be something like that here? Does this indicate that those who refuse are probably guilty? REPRESENTATIVE PARNELL referred that question to Dean Guaneli and John Salemi. REPRESENTATIVE CON BUNDE asked for clarification on an earlier statement about the discovery process; whether it is currently unequal and weighted to the advantage of the defense. Number 255 REPRESENTATIVE PARNELL confirmed that to be correct. Number 260 CHAIRMAN PORTER asked for the Department of Law to testify. Number 265 DEAN GUANELI, CRIMINAL DIVISION, ATTORNEY GENERAL'S OFFICE, DEPARTMENT OF LAW, stated that for a variety of reasons, the courts have gotten away from trial by ambush, and have, through a series of rules, particularly in civil cases, decreed that the best way to promote justice or settlement is to have full and fair discovery between civil litigants - each side asking for a certain amount of information, whatever they feel is relevant, and the other side having an obligation to provide that level of information. The Supreme Court is in the process of changing its rules so that you do not even have to ask, in a civil case, for information; the other side is obligated to turn it over. That obligation has existed in Alaska for the prosecution for a number of years. The prosecution is obligated to turn over all of the statements of the witnesses, all of the expert opinions, laboratory tests, access to all of the grand jury transcripts, et cetera. That certainly provides the defense with everything it needs, but the prosecution also needs a level of evidence to be able to prepare its case. It does not get that from the defense. There is no obligation for the defense to provide much of anything to the prosecution. The defendant can give fingerprints, a handwriting example, or appear in a line-up, and get the names of their expert witnesses in advance; but beyond that, there is no obligation for the defense to provide information about witnesses they have contacted, who they intend to call at trial, or what those people are going to say. In the same way that it promotes early settlement in civil cases, and the fairness of the Administration, just as it would do the same in criminal cases if the defense had an obligation to provide information to the state. MR. GUANELI went on to explain that ordinarily in a criminal case when the prosecution is surprised, it usually happens in the middle of trial. The only thing the prosecution can do at that point; the jury has been sworn, jeopardy has attached; is to ask the judge for a postponement, and sometimes that happens and sometimes not. It is usually a short postponement, maybe 24 hours. Then the prosecutor and police have to check into that person's story, and it really leaves the prosecution at a severe disadvantage. It is a devastating defense tactic to postpone any notice of witnesses. MR. GUANELI explained that frequently an expert witness is found out about right at the last minute; and if the expert witness would have been available for the prosecution to speak with before trial, it could have alleviated two weeks of trial to get to the same result. This happens with some regularity. Some experts are requested not to write reports, so as to make sure the report is not required by a judge, to be given over to the prosecution. Yet the prosecution is dutifully required to give this type of information over to the defense. MR. GUANELI noted the CS starts with changing the Alaska Supreme Court Rule. He hoped the next CS draft would be clearer in what the changes are. The goal is full and fair discovery on both sides. There is a certain level of information we must provide that will be set out in the rule. The prosecution has a constitutional obligation to provide a certain level of information. The proposal will require them to also provide information about what went on at the grand jury, because there is a need for the defense to know something about the prosecution's case. Beyond that, before the state should be obligated to provide any more information about its case, the defendant should be obligated to do the same thing, in terms of fairness. That is what this amendment to the rules is designed to do: To stop trial by ambush, mid-trial postponements; the types of things that makes prosecutors say, "Why did they not tell me this before hand?" Number 500 REPRESENTATIVE BUNDE asked if juries would know that a defendant had chosen not to use the discovery option. Number 510 MR. GUANELI replied there would be no indication to the jury whether or not the defendant had opted in or out. Number 513 REPRESENTATIVE BUNDE's concern was whether the opting option would taint the jury. Number 514 MR. GUANELI did not see how it could. Number 515 REPRESENTATIVE BUNDE noted the after being on juries, he realizes judgments are supposed to be based on facts, but does also realize that sometimes perceptions do come into play. In postponements, where the prosecution gets blind-sighted, he wondered if that would have an impact on the credibility, in the jury's mind, of the prosecution's case. Number 520 MR. GUANELI believed the jury feels the prosecution should have all of it's ducks in a row, in a straight forward, methodical, organized manner. It tends to cast some doubt in the jury's mind when the prosecution is fumbling around, not prepared for cross examination of experts. It may very well be the case that if it is done right by the judge, and the postponement is done in a matter of fact way, the jury will not get that perception. Postponement never helps the prosecution in a case. The further away you get from the presentation of the State's evidence, the less evidence that presentation has, so any kind of delay in a trial works to the detriment of the prosecution, and to the benefit of the defense. He stated that he would not say for sure if it would have an impact, but it does have that possibility. Number 545 REPRESENTATIVE FINKELSTEIN asked about a case when the defense would not choose to do the reciprocal arrangement, it is probably because there is something in it that is incriminating, or could be misinterpreted. He asked if that was possible. Number 550 MR. GUANELI said that was a possibility. The prosecution is obligated to give over to the defense, as a matter of constitutional minimum, all information that tends to be exculpatory. In other words, it tends to negate guilt, or reduce a defendant's punishment. What ought to be prohibited, is forcing a defendant to give over information from the defendant's own mouth; classic self incrimination. That does not mean we forced the person to confess, or that it was compelled evidence, which the constitution prohibits. We are not doing that. Number 575 REPRESENTATIVE FINKELSTEIN said it is not forced, but you get a lower set of standards to assist you in court. It does not protect you against self incrimination, but if there is something out there, you may have to operate under a set of standards that makes it harder for you to defend a client. Number 585 CHAIRMAN PORTER clarified the point. The only thing that would be required under this discovery requirement concept, is the name of a witness, if they intended that witness to testify. Number 589 MR. GUANELI said they were proposing that they get the names of the witnesses the defense intends to call. Number 592 CHAIRMAN PORTER said if the defendant knew that he had confessed to his girlfriend, and if the girlfriend now, did not particularly like him, there is no way he would conceive that girlfriend would be a witness, and under this, be compelled to give the name of his girlfriend, saying he had confessed to her. Number 600 MR. GUANELI said not unless that person had something else beneficial to say. The Alaska Supreme Court in the Scott decision that Representative Parnell mentioned, in fact, said that when you are required to give over the name of a witness, you might say something that could incriminate you, that you have a fifth amendment privilege not to do that. We are saying that as long as the prosecution gives over that amount of information required by the constitution, anything else we give you is a freebie out of the goodness of our hearts. This rule says the fair and just results that comes out of this are more complete and factual information to both sides, and speedier resolution of cases. Number 625 CHAIRMAN PORTER said we have statutory and constitutional requirements for discovery for the defense. What we are saying in this bill is that if we go beyond that, you have to reciprocate. Number 630 MR. GUANELI agreed. Number 631 CHAIRMAN PORTER asked how we got beyond that now. Number 632 MR. GUANELI said we got beyond what the constitution requires, and beyond what the statutes require simply by virtue of the Alaska Supreme Court adopting a court rule. It has been in effect, in Alaska, for a number of years. It was something proposed by the American Law Institute, a group of lawyers and judges that thinks about how the system ought to be changed. This particular rule of discovery was developed in the late 60s or early 70s when the tenor of the times was different than today, and the rule has existed largely in that form since then. Number 640 CHAIRMAN PORTER welcomed John Salemi. Number 645 JOHN SALEMI, DIRECTOR OF THE PUBLIC DEFENDER AGENCY, DEPARTMENT OF ADMINISTRATION said the department does not have an official position on this legislation yet. His thoughts on the bill included the following: He felt it important to maintain some perspective. In talking about crime bills, there is a rather popular idea that the way our criminal justice system has been built over time is such that it favors the accused. That is a popular assumption made by certain components of government; which, although popular, may not be accurate. MR. SALEMI mentioned an example, most people think the welfare system drains our government of a large percentage of our operating budget; when, in fact, the federal system is only two percent, and social security is almost 22 percent. So there are several misconceptions floating around about a lot of components of government, and it is his belief that the present system does not favor the accused, when you look at it overall. One of the most telling statistics is what happens when a criminal case is filed. Mr. Guaneli would probably confirm that at least from the Public Defender's experience, well over 90 percent of our cases end in pleas of guilty or no contest. In other words, where a person, without exercising his/her right to a trial, admits they have committed a crime, or at least subject themselves to the punishment of the court. If we had a system that was heavily tilted in favor of the accused in court, we would see a very different statistic. The other part of that statistic is that only a small percentage of our cases end up in trial. He said the system works quite efficiently and expeditiously. The prosecution gets their case together, provides information to the defense, so the defense can evaluate the strengths or weaknesses of the prosecution's case, and then in the vast majority of the cases, the defendant acknowledges that the prosecution has a very strong case. MR. SALEMI noted that the committee was looking at a very small part of the criminal justice system, the regulation of discovery. You have to realize that the criminal justice system has the state crime lab, the police force, troopers, and local law enforcement. They get a significant amount of money for staff. We do have a contractual budget with which to hire expert witnesses. The defense does not have this kind of money and resources, so the issue of "leveling the playing field" is not easily plumbed by looking at just one aspect of the criminal justice system. He disagreed that the prosecution was giving out a freebie out of the goodness of their heart. The reason is because they understand that an important societal value is vamped. That is the expeditious process of these cases. People who are victims of crimes do not want them litigated on and on if at all possible, and to the extent that the prosecution provide the information which convinces the defendant of his or her guilt, then the cases move much more quickly. MR. SALEMI was in favor of some adjustment to Rule 16, adjustments that will not erode the fundamental theories of our present system, and will expedite the processing of cases. He did favor the rule that the prosecution and the defense have adequate advance notice of experts, and that there is no game playing on the issue of expert witnesses, and that they are either provided reports from those expert witnesses, or summaries of the proposed chapter line. Number 850 CHAIRMAN PORTER asked if there were questions of Mr. Salemi. Number 852 REPRESENTATIVE FINKELSTEIN asked if there was a fiscal note prepared by the Department of Administration. Number 855 MR. SALEMI said there was not one yet. Number 860 CHAIRMAN PORTER asked if Mr. Salemi would agree that the most justification for this kind of treatment to the current discovery situation would not be as much towards problems for the Public Defender's Office, as it would be for those fewer, but quite lengthy cases that are generated through the normal defense methods. Number 870 MR. SALEMI agreed. Number 880 CHAIRMAN PORTER asked about the ongoing work in his draft. He asked if it would change the general content of the CS draft, or just reconfigure it. MR. GUANELI said there would be some changes. REPRESENTATIVE PARNELL added, "in the terms of the concept of 'opt in.'" Number 886 CHAIRMAN PORTER said he wanted to continue the discussion on Monday, but requested Anne Carpeneti, Committee Aide to explain the differences between this CS and the existing rule. TAPE 95-03, SIDE B Number 000 ANNE CARPENETI, LEGISLATIVE AIDE, HOUSE JUDICIARY COMMITTEE, explained the differences as follows: Page 1, subsection (A), is similar to existing law. Subsection (B) starting on line 10 of page 1 is a new section which contains the "opt in" provision, which is the main provision of the legislation. Subsection (C), disclosure to the accused, the first paragraph is new, and it provides the election to proceed under this rule, which is consistent with subsection (B). Starting with line 13, down to the end of page 2, the provisions are the same as the existing rule. All the material on pages 3 and 4 is the same as the existing rule. On page 5, starting with line 5, the subparagraph (4) it the same as the existing rule with the significant exception of mandatory language in line 5, the trial courts shall require that the prosecuting attorney be informed of, and permitted to copy expert reports and various material. The same is true in subparagraph 5, beginning on line 11 of page 5, replacing the word "may" with "shall" on line 14. Page 5, line 26 is all new material, setting forth what the defense would be required to divulge if opting in. She said from line 27 to the bottom of page 5, is similar language. No changes were made to pages 6 through 8. Number 090 REPRESENTATIVE FINKELSTEIN asked how much time is generally left before the trial, under the existing rules, after the discovery procedure for the prosecution has occurred, and the defense has the information. Number 110 MR. GUANELI said the discovery normally happens very soon after a person is charged or indicted. Number 130 REPRESENTATIVE FINKELSTEIN felt the defense point of view was not coming from fairness, but from expenditure. Number 145 MR. GUANELI said they anticipate the defense to turn over materials either early on, or not at all. Number 170 CHAIRMAN PORTER scheduled the continuation for hearing CSHB 25 for Monday, January 30, then announced the hearing of HB 9.