Legislature(1995 - 1996)

02/08/1995 01:05 PM JUD

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

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