Legislature(1995 - 1996)
02/08/1995 01:05 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HJUD -02/08/95 HB 25 - CRIMINAL DISCOVERY RULES CHAIRMAN PORTER announced the hearing on the committee substitute for HB 25, version R, dated 2/3/95, which had not yet been adopted. Number 510 MICHAEL J. CORKILL, PRESIDENT OF THE ALASKA PEACE OFFICER'S ASSOCIATION, representing 1200 peace officers, chose HB 25 as a high priority piece of legislation. He felt the bill would enhance the truth seeking process of criminal trials across the state. Number 530 CINDY STROUT, PRIVATE PRACTICE ATTORNEY IN CRIMINAL DEFENSE, was against many of the revisions suggested in HB 25. As far as the opt in provisions, she thought many clients would choose to opt out, creating a cumbersome situation. The proposed changes are not necessary since the current system, which has a few glitches, generally works very well. She wanted to encourage the committee to think about the costs involved, as well as the potential cumbersomeness of the opt in situation. Number 570 REPRESENTATIVE DAVID FINKELSTEIN asked what the impact would be on a client in a case where the information could not be made available to anybody, including the defendant. On page 9, line 14, the change is made in what information is to be made available. By eliminating "shall be subject to the other terms and conditions the court may provide," all information would now be under that category. Number 606 MS. STROUT thought the intent there was to prevent a criminal defendant from obtaining confidential information regarding witnesses and/or the victim. She did not see that as a major problem. Number 623 REPRESENTATIVE FINKELSTEIN said he may be misunderstanding it, but as it is written currently, it states that confidential materials cannot be provided, including all information. The concern here, especially in the case of the public defender, where they are dealing with large numbers of clients, is the inability to give even the police report with witnesses names removed. He asked Ms. Strout if this had been a problem in her experience. Number 635 MS. STROUT agreed that could be unfair. In her experience, she has had clients who want to read every single word, and other clients who do not. A defendant's expense for attorney time goes far beyond necessary costs if the confidential information can be deleted in a way to protect privacy. Number 660 REPRESENTATIVE TOOHEY made a motion to adopt the committee substitute for HB 25, version R, as the working draft. CHAIRMAN PORTER asked if there was objection or discussion on the motion. REPRESENTATIVE FINKELSTEIN asked if someone could quickly explain the differences from the previous draft, before the version was adopted. He said the committee members had received a very good memo explaining the differences between the committee substitute and existing law, but he had not figured out what the substantial changes were from the previous draft. Number 680 MR. GUANELI said there was a change in provisions for expert witnesses; one of which is on page 4, lines 8 and 9. There is a similar change occurring on page 6, lines 13 and 14. Essentially, what those changes do is to require that, in addition to getting a name and address of the expert, the expert also has to provide a report. This is something the prosecution experts almost always do. Defense experts never do. In fact, defense attorneys will instruct or request the experts not to write a report, so the prosecution does not have anything. He felt Mr. Salemi did not have an objection to this, and he understood Cynthia Strout's testimony to be that it was a good idea to give notice of experts, and copies of their reports. That change is reflected in this draft. In other words, not only will you provide names and addresses of experts, but the expert shall provide a written report of any of the tests conducted and the conclusions reached by the expert. That change was inserted into the bill on pages 4 and 6. MR. GUANELI noted unfortunately, the other language that was in there, that attempted to do something similar, was not taken out. That was the language that follows immediately, on page 4, lines 10 and 11, where it says "...; the prosecutor shall also make available for inspection and copying, any other reports, or witness statements of these experts;" He was not certain exactly what that does, and it could certainly be interpreted as, "any other reports and any other cases the expert has ever done," which is inappropriate. There is something similar on page 6, at lines 15 and 16. That happened when the committee substitute was drafted up. Something was added and something should have been deleted, but was not. Number 730 REPRESENTATIVE TOOHEY made a motion to adopt amendment number 1, which would delete on page 4, line 10, starting with the words "the prosecutor shall", to line 11, "these experts." Remove those. And also, on page 6, line 15, from the words "defendant shall" to "these experts" on line 16. Delete those. Number 744 REPRESENTATIVE FINKELSTEIN noted they needed to get back on track, as there had been a previous motion to accept the committee substitute. Number 750 MR. GUANELI described the last change, so the committee could first decide whether or not to adopt the draft version R, before passing an amendment. The last change appearing at page 2, lines 27 - 29, just added a few words. The statutory reference on line 29 really applies only to the duty of the prosecuting attorney to turn over things to the defense. This particular provision talks about the duty of the defense to turn over things to the prosecutor; so the wording had to be changed to make it so that the duty of the defense attorney is to provide the prosecution with names of witnesses to the same extent and in the same manner as is required of the prosecution. So it is a slight change in wording to make the playing field level, and to impose the same burden on both parties. Number 775 CHAIRMAN PORTER asked if the committee wished to have further discussion on the adoption of the committee substitute, version R. Hearing no objection, the committee substitute was adopted. Number 780 REPRESENTATIVE TOOHEY made a motion to pass amendment number 1, as described above. Seeing no objection, the amendment passed. MR. GUANELI explained the intent of this work draft language on page 2. Lines 13 - 21 requires, as part of mandatory disclosure, that the defense let the prosecution know at least ten days before trial if the defense is going to rely upon an alibi defense or some other defense mentioned in the statutes. If the defendant does not do that, the prosecution either gets a continuance or it can impose a more stringent sanction. This particular provision on these nine lines, was something that was recommended by the Criminal Rules Committee as a change that would be considered by the Supreme Court. He commented that this was one of those changes we thought was a good idea to incorporate into the bill now rather than running the risk of, in a couple of months, having the Supreme Court change its rule and therefore causing confusion over what the legislature intended. This has been suggested by the Criminal Rules Committee to the Supreme Court and has actually been submitted to the Bar Association. Number 825 REPRESENTATIVE FINKELSTEIN had problems with two areas. One, being the major burden occurring when we prohibit giving any of this information to the defendants themselves. He felt that the defendant should have the right to access this information. The way it will occur if this bill passes, is that some employee of the state or employee of the defense attorney will sit down in a jail or whatever setting it is, while the defendant goes through mounds and mounds of material. If the goal is to restrict their access to this information, somehow it is not being served. They can sit and take notes off of it while it is there. There is nothing that prohibits them from getting what they are after anyway. It seems we are just throwing a procedural hurdle into the whole thing. Paperwork, as we know, runs our judicial system and our government. He felt we had protection now for the materials intended to be kept confidential and did not understand why the other information cannot be given to the defendant to read. Besides the logical side of fairness, there is also the practical side. We have a fiscal note that is one-third of a million dollars. He assumed most of that to be attributable to this particular problem. He hoped for some middle ground that would achieve the purpose of the bill without this hurdle. TAPE 95-8, SIDE B Number 000 RICHARD VITALE, AIDE TO REPRESENTATIVE PARNELL said they had spoken with Representative Finkelstein and John Salemi from the Public Defender's Office. They were entertaining some of the suggestions and had something in written form, which he had not seen yet, as it just came out today. He said the sponsor would like to see the bill held, while they work on these suggestions, and then heard in committee again. CHAIRMAN PORTER asked from what view the fiscal note was created. MR. VITALE said that this is due to the opinion that not everybody would opt in. If everybody opted in there would be a zero fiscal note. So the fiscal note here reflects the scenario that some people would not opt in. CHAIRMAN PORTER noted the fiscal note is driven on one side of the issue by the Criminal Rules Committee and by the public defender's assumption that everyone will not opt in. On the other side of the issue, in the only state where there is a track record on this, the facts seem to indicate that they do opt in. These two assumptions conflict. He stated they would hold the bill, awaiting the sponsor's amendments. He asked Dean Guaneli to work with the sponsor on the bill.