Legislature(1995 - 1996)
01/30/1995 01:12 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 25 - CRIMINAL DISCOVERY RULES CHAIRMAN PORTER stated that HB 25 would be heard. Number 060 DEAN GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, explained the new changes in the proposed committee substitute for HB 25. He stated the approach was to provide some mandatory sharing of information on both sides. If the defense wants to opt in to give additional information, then it receives additional information from the prosecution. He realized this rule may be in the process of being amended by the Supreme Court. Therefore, it may be appropriate to incorporate some of Mr. Salemi's adjustments to the rule that the Supreme Court is considering. MR. GUANELI described mandatory discovery, on page 1, as information that tends to negate guilt, and as the minimum constitutional standard. Language on lines 4 and 5, as already appears in the Criminal Rules, would be mandatory. There has been a court proceeding that has been recorded, and that minimal amount of information ought to go to the defense. Lines 6 and 7, describing mandatory discovery, that information required by statute now, and should be provided as well. Lines 8, 9, 10 and 11 (also from the current rule) states anything obtained from the defendant; i.e., books, diaries, photographs. Lines 12 and 13 requires mandatory information to be turned over to the prosecutor. Line 14 is a truncated version of what the Criminal Rules Committee recommended go to the Supreme Court. The rest of what they recommended appears on page 6, lines 12 - 19. MR. GUANELI continued, saying lines 18 and 19 provide for the defendant to participate in non-testimonial identification procedures. These are set out in the current discovery rule. This includes things like photographs of the defendant, fingerprints, appearing in line-ups, and handwriting samples. On page 2, lines 20 and 21, the statutory requirements are made mandatory. On lines 22, and on to the top of page 23, is a requirement or suggestion by the Criminal Rules Committee, that if the defendant's attorney has come into the possession of any physical evidence, that attorney has an obligation to turn that over to the prosecution, or to the police. It is a matter of the attorney's ethical obligations to do that anyway. The Criminal Rules Committee thought it ought to be set out in the rule. Often times, defense attorneys come into the possession of murder weapons, cash, or bloody gloves, and they have an obligation to turn those over to the prosecution. The courts have said in order to preserve the confidential communications between attorney and client; if the attorney got that from his client, he does not have to tell the police where he got it, he just turns it over. If he got it from somewhere other than his client, he has to tell where he got it from. It is a matter of ethics, but this sets out a procedure for that to be done, and this is something the Rules Committee recommended. MR. GUANELI then explained page 3, line 3, which states once you have exchanged this mandatory information, the defense has an opportunity to say whether he wants more information. In order to get it, he has to turn over additional materials to the prosecutor. Line 4 requires the defendant to file written notice, personally executed by the defendant. An attorney could do this without consulting the client, and hence, avoids the risk that an attorney might waive client's constitutional rights without consulting the defendant. This requires the defendant to personally agree to do that. It is a good safeguard. It requires the attorney to inform the client of what is involved. Line 15, subsection (b), lists additional information the defendant can get, basically names and addresses of people who know about the crime, and any statement given by them. Line 28's language, which comes from the Criminal Rules Committee draft says, "The prosecutor shall inform the defendant of the names and addresses of expert witnesses who have worked in connection with the case." Number 330 CHAIRMAN PORTER asked Mr. Guaneli if page 2, line 8 included statements made by the accused. MR. GUANELI said that it did, yet it only applies to tangible objects. Number 345 REPRESENTATIVE JOE GREEN asked what provision would protect an incompetent defendant from making this decision to give over information. Number 355 MR. GUANELI said the court would stop proceedings until the defendant were competent to assist his attorney in proceedings. That question is determined by a court on an individual basis; in the same way that a defendant is determined to be qualified to understand the plea of guilty, not guilty, or no contest. Page 4, lines 11, 12, 13, and 14 had a provision which has moved up to what is now mandatory disclosure. This requires information not obtained by the defendant, to be disclosed. He felt the language should remain, without the qualifier, "...which belonged to the accused..." He felt that language could be replaced by "... which the prosecuting attorney intends to use in the hearing, and which were not previously disclosed to the defendant." Number 435 CHAIRMAN PORTER suggested the language, "...other than those obtained from..." Number 440 MR. GUANELI thought that was a good choice of wording. Number 445 REPRESENTATIVE CYNTHIA TOOHEY asked if it should say "... obtained from or belonging to..." CHAIRMAN PORTER and MR. GUANELI both agreed. At 1:37 p.m. Representative Finkelstein arrived. Number 450 MR. GUANELI explained that an expert witness statement would be appropriate information to have in the materials being handed over to the prosecution. Currently, the prosecution does not have to turn over its legal research materials and theories. The current rule does not have something similar for the defense. He felt it appropriate that both be equivalent, so they added a provision saying the defense does not have to turn over its legal research, theories, or opinions. From the prosecution's standpoint, the most critical information the defense has is who the defense witnesses are going to be and what they have told the investigators. This information is something the defendant agrees to give up when opting to get additional information from the prosecution. This is comparable to the language used under the prosecution's obligation. On page 7, at the top, there should be a qualifying phrase in the requirement to turn over physical evidence. Physical evidence does not include paperwork under Criminal Rule 16A1(ii)(dd). Number 585 REPRESENTATIVE CON BUNDE asked if deoxyribonucleic acid (DNA) information would be appropriate to add to the list. Number 595 MR. GUANELI said the list includes the taking of a blood sample, so that is where the DNA information would be obtained from. He noted page 9 had a lot of provisions removed from it, which brings the rule back to the way it read three years ago. The particular provision says anything a defendant gets, that the prosecution or police have, has to remain in the exclusive possession and control of the attorney. We do not want police reports, and witness statements given out to defendants and spread throughout the community. That rule, written three years ago, is amended by the language proposed here for deletion now. The rule now reads that the only things you have to keep in your possession are these few things: Criminal history records, psychiatric exams, adoption records, presentence reports, et cetera. It specifically allows police reports and witness statements to be given out; and what has happened as a result, is police reports have been spread throughout the community. You can imagine what happens in small towns and in prisons. Everyone knows who is involved and who witnessed what. Number 665 REPRESENTATIVE AL VEZEY asked who had a hand in the working of this bill. MR. GUANELI responded that Representative Parnell's office had been consulted with on all the issues, and the primary drafter was Mr. Jerry Luckhaupt. Their chief appellate attorney also had input, and so did the Criminal Rules Committee, a group of about 15 lawyers and judges from around the state, appointed by the Supreme Court. Number 685 REPRESENTATIVE VEZEY asked why the Criminal Rules Committee did not change the rule. MR. GUANELI explained that the Criminal Rules Committee is historically made up of people who are either public defenders, defense attorneys, or are former public defenders or former defense attorneys; and the number of prosecutors has always been greatly outnumbered by the number of defense attorneys on the committee. He said they have been trying to get provisions such as these passed through that committee for the last three years, to no avail. Unless that committee makes a recommendation to the Supreme Court to change its rule, the change is unlikely to occur. Number 705 JAMES H. MCCOMAS, CRIMINAL DEFENSE ATTORNEY, testified via teleconference from Anchorage. He said since 1988, he has served on the Criminal Jury Instructions Committee, and it is not biased. He felt that the discovery procedures at trial should be balanced, because right now, it favors the defense. Historically, the procedural imbalances in the criminal justice system have explicitly been designed to provide some sort of balance the other way, protecting the defense, given the incredible advantages the prosecution has, that never get talked about, when we focus on something like discovery, out of context. The advantage they have, that will end up playing into the provisions of these bills, is in investigative resources. They have the police department, the State Crime Lab, and interagency cooperations. Another disadvantage to the defense is the discretion the prosecution has in charging a case, the defendant is there because an accusation has been made, he does not initiate the process. He is in court to face a charge. It is not too much to expect, that when a citizen is called into court with that kind of allegation made against him or her, they can expect that they are going to have some sort of substantial information about why they are there; what the allegations are, so they can begin to prepare their defenses. MR. MCCOMAS said most of what is being proposed here would violate the privilege against self-incrimination. Instead of balancing, what they are proposing to do, is penalize the defense, unless the defendant agrees to waive the privilege against self-incrimination, to get more information. What this proposes, codifies a requirement that people give up their constitutional right. They do not have the legal right to make the defendant give up that right. They threaten the defendant with the fear of having to go into trial by surprise. The reason for these kinds of discoveries which favor the defense, are simply meant to counterweight the tremendous advantage of the prosection. MR. MCCOMAS went on to explain there is a fundamental misunderstanding of criminal justice. The federal discovery rule requires disclosure of expert conclusions, intended to be used at trial. That is fair, if it is used to let them know they may need an expert witness of their own; but the idea of turning discovery into a tool, allowing the prosecution to hurt the defendant is not fair. TAPE 95-5, SIDE B Number 000 MR. MCCOMAS continued his opposition to the bill. Rule 16, the way it presently exists, gives the right to regulate discovery. He made known his interest and availability to work with the committee on the subject. Number 115 CHAIRMAN PORTER asked if there were questions. Number 130 REPRESENTATIVE TOOHEY asked how certain the sponsor and Mr. Guaneli were that this would not be overturned by courts. Number 140 MR. GUANELI said it certainly will be taken through the courts. The question is whether it is going to be overturned. He believed anyone can give up constitutional rights if they feel it is to their advantage to do so, as long as they are competent. The current rule gives the defense much more information than is constitutionally required. Limits and conditions can be put on that. On that basis, there is no reason to believe the courts would not uphold that. Number 170 REPRESENTATIVE BUNDE understood there to be additional disclosure beyond the constitutional mandates regarding disclosure and what this bill is talking about. Number 185 MR. GUANELI confirmed that not only does this require the state to provide what is constitutionally required, but within the mandatory disclosure in this new rule, there are other things the state is not required to disclose, but were given to them anyway, such as access to grand jury materials. The defense is given more than is required, even if they do not opt in to these provisions. Number 200 CHAIRMAN PORTER stated the constitutional right referred to here, is the right against self-incrimination. Number 230 REPRESENTATIVE DAVID FINKELSTEIN asked what it would be like to argue the case without this high level of information made available in a reciprocal agreement. Number 240 MR. MCCOMAS said without access to witness statements, people would be much less prepared for the trial. This could lead to mid-trial continuances and postponements, so they can adequately prepare for a trial with new information. Motions for mistrial are also possible, based on new information provided. Since most criminal cases do not go to trial, the restriction of the information the prosecution shares with the defense is going to lead to an increased number of trials. Number 300 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli why we would want to require the defense to provide additional information to what they are going to use at the trial? Why ask for information that will not be used at the trial? Number 310 MR. GUANELI answered that the defense will likely not use evidence that may hurt them. That will likely assist the prosecution. The more information available in the decision process, the better the decision will be. Number 340 REPRESENTATIVE FINKELSTEIN thought it did not seem equal and fair to the person defending him or herself. Number 350 MR. GUANELI felt the overall societal concern is making sure we have all the information in front of the jury or the judge. Number 370 REPRESENTATIVE FINKELSTEIN felt the basic theme of this bill is philosophy. It appears to be a prosecutor's dream come true. He asked if there was anyone involved in the preparation of this bill who has any sort of defense point of view. Number 405 CHAIRMAN PORTER said the Public Defender for the state made suggestions that were incorporated into this draft, so, yes, and we just received testimony from Mr. McComas, who certainly represents the defense side. Number 427 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if the committee appointed by the Supreme Court had made any recommendation to the Supreme Court about this, and if there is a current process going on. Number 445 MR. GUANELI said the Criminal Rules Committee has recommended a number of changes currently being considered by the Supreme Court. Those have been incorporated into this draft. Number 480 REPRESENTATIVE FINKELSTEIN reconfirmed that information with Mr. McComas. Number 508 MR. MCCOMAS stated that the Rules Committee explicitly considered, and was unable to get a sufficient consensus, to propose the very election of discovery choice that this bill proposes. In three areas, they have increased the explicit requirements of disclosure on the defense, but they have not come anywhere near witness statements or witness lists. They certainly have not said that the defense has an obligation to turn over evidence of conviction. To be accurate, it is safe to say the committee itself could not ultimately agree to except the notion of two tiers of discovery; one for those who are willing to waive in advance their constitutional rights, and one for those who are not so inclined. Number 535 MR. GUANELI said Mr. McComas was correct, and he felt he had tried to elude to that previously. Number 540 CHAIRMAN PORTER asked if the two tier option has been put into effect in other states. Number 548 MR. GUANELI believed that Florida has such a rule, and that 99 percent of the defendants opt in to the system. Number 550 MR. MCCOMAS felt that there was inducement in those reciprocal discovery situations. Number 590 CHAIRMAN PORTER suggested that the adjustments be put into a committee substitute so the bill could be heard again at a future date.