Legislature(1995 - 1996)
03/24/1995 01:40 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 said the next order of business would be HB 25, which has been before the committee previously. There were areas of concern, but he believes they have been addressed in the new CS. He asked the sponsor to introduce the new CS and explain it. Number 630 RICHARD VITALE, Administrative Assistant to Representative Sean Parnell, sponsor of House Bill 25, came before the committee. He noted Representative Parnell was at another committee meeting. Mr. Vitale called the committee's attention to Draft H of the bill, which is a departure from the last version which was an opt-in version to discovery. Mr. Vitale stated that Draft H attempts to go about it in a slightly different way, which the American Bar Association has endorsed, and many states have been going in this direction. It is full and open reciprocal discovery exempting only defendant statements, which protects their rights to self- incrimination. He asked that Mr. Dean Guaneli of the Department of Law speak to direct questions about the bill and what it does. Mr. Vitale said he wouldn't give a history or explanation as this information is included in the committee packets. CHAIRMAN PORTER stated there were people to testify, two of them on the teleconference network. MR. VITALE referred to working with other parties and said he has worked with counsel, prosecutors and public defenders. Ninety-nine percent of the bill reflects that everybody is pretty much on line. He noted John Salemi with the Public Defender's Office still had one concern but he felt it could be dealt with in another committee. There was no logical solution to everybody's concerns, but he was comfortable with the bill being passed out as it is now. An unidentified speaker asked to hear about Sections 2, 3, and 4. Number 690 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law, said he would summarize where the bill has been changed and perhaps help the committee understand why the provisions are needed. He stated the initial version of the bill was essentially the federal rule on discovery, which appears to give information to both sides but doesn't. You exchange names of experts and then nobody gets anything until the middle of trial. That, the department felt was inappropriate so they tried to do the next best thing which was to adopt a rule that comported with the Alaska Supreme Court's constitutional decision in this area, and which tried to legally circumvent that decision by having the defendant waive his right to self-incrimination. In other words, agree to opt into this discovery process and the prosecution and defense both turned over information. MR. GUANELI said that turned out to be a cumbersome process. After thinking about this, it was decided perhaps the best way to address this issue was to focus on the Supreme Court's opinion that had caused all the problems - the Scott decision which is over 20 years old - and take it on directly. In other words, to propose a statute that would say the prosecution gives over information, the defense gives over information. He said that flies directly in the face of the Supreme Court Scott decision. Mr. Guaneli said this bill, on its face, if that decision is still good law, is unconstitutional, but it is hoped the Supreme Court will change its mind. When there is a case brought up to it, it will reverse the Scott decision and it will uphold this bill. The department thinks that will be the case because Alaska has the most liberal discovery rules in the country. The Scott decision is the only Supreme Court decision out there that rules in that way, by saying there are Fifth Amendment rights to witness lists. MR. GUANELI said given that that's the case, and given that the American Bar Association (ABA) has come out with a new edition of its discovery rule, which is largely adopted in this bill, he thinks the Supreme Court is going to go in that direction. Mr. Guaneli said this discovery rule was based on the 1970 ABA standards and the department thinks there is a good reason to believe the court will go along with the 1994 ABA standards. MR. GUANELI then referred to the last three sections, which are proposed in the amendment. He stated that in the process of coming up with the new version of the bill, the sponsor's office and his office both worked closely with the Public Defender Agency. They had a number of comments about the first draft. He said their concerns have been met on all but one minor point, and in doing so there were some compromises. In other words, the department expanded what they have to give the defense. He said they are giving them a little more or a little earlier discovery of certain matters not requiring that they request it, but just automatically turning them over which are things that they don't have to currently do. MR. GUANELI referred to Section 2 and said it provides that the bill is not severable. In other words, if the court is going to strike down part of it such as the defense obligation to turn over, there is no reason to that they should be stuck with some additional obligations, so they go back to the current rule. The bill requires a non-severability clause because of an Alaska statute that says, "If the legislation is silent, it means it is severable." In other words, if one part is stricken down the other part stays. MR. GUANELI referred to Section 3, which says this applies to essentially all criminal cases that are going on right now. If it didn't fade out, there would be at least an ambiguity about whether the rule applied to criminal cases that are going on in the system at the time the bill took effect. Mr. Guaneli said they want the rule to apply to all criminal cases that are going on in the system. He stated there is no reason to have two separate discovery rules applying to pre-July 15 cases and after July 15 cases. If you don't specifically say it, there is a presumption that a bill is not retroactive. MR. GUANELI referred to Section 4, which says the Act takes effect July 15, 1995. That coincides with the effective date of the changes the Supreme Court made in their rule last month. This says that it specifically supersedes those changes, so at the time the Supreme Court's rule changes would have taken effect, this new rule would take effect, so you don't have three versions of the rule going on, you've got just one. REPRESENTATIVE TOOHEY asked if this would incur a whole bunch of court cases that are going to turn supplemental. MR. GUANELI answered the department doesn't anticipate that any kind of supplemental would be required. They would anticipate that litigation is going to be required to get the Supreme Court to overrule the Scott decision. Mr. Guaneli said the Criminal Rules Committee that looks at these rules, and that had made the recommendations for the rules adopted last month by the Supreme Court, many of the people on that committee are of the opinion that the Supreme Court cannot change its rule in a way that is contrary to one of its existing case law decisions. It has to have a case in front of it where there are arguments on both sides, pro and con, in order for the court to do that. CHAIRMAN PORTER asked if there were more questions about amendment number one. REPRESENTATIVE BUNDE moved amendment one. CHAIRMAN PORTER indicated amendment one addresses Sections 2, 3 and 4. He asked if there was discussion or objections. Hearing none, Amendment number one is adopted. Chairman Porter said the committee needs to adopt the CS. REPRESENTATIVE TOOHEY moved to adopt the CS for House Bill 25, work draft H, dated 3/23/95. CHAIRMAN PORTER stated there was a motion to adopt the CS as described. He asked if there was an objection. Hearing none, the CS for HB 25 was adopted. Chairman Porter said he would entertain another motion to adopt amendment number one. REPRESENTATIVE BUNDE moved to adopt the amendment to the CS. CHAIRMAN PORTER asked if there was an objection. Hearing none, amendment number one was adopted. REPRESENTATIVE BUNDE moved that committee substitute for House Bill 25, as amended, pass from the House Judiciary Committee with individual recommendations and attached fiscal notes. Number 800 CHAIRMAN PORTER asked if there was an objection. Hearing none, CSHB 25(JUD) was passed out of the House Judiciary Committee.