Legislature(1995 - 1996)

01/27/1995 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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           
 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           
 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                                                                    
 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                                                                    
 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                   
 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            
 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                                                                    
 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           
 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.                       

Document Name Date/Time Subjects