Legislature(2003 - 2004)

01/30/2004 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 397 - DEFENSE CONTACTS WITH VICTIMS & WITNESSES                                                                            
                                                                                                                                
Number 1306                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be HOUSE BILL NO. 397, "An  Act relating to defense contacts with                                                               
and  recordings  of  statements  of  victims  or  witnesses;  and                                                               
amending Rule 16, Alaska Rules of Criminal Procedure."                                                                          
                                                                                                                                
CHAIR McGUIRE,  speaking sponsor  of HB  397, explained  that she                                                               
was  contacted by  a constituent  whose 16-year-old  daughter was                                                               
raped.  The  girl told her parents, the  investigation was begun,                                                               
and charges  were filed.  While  home alone, the girl  received a                                                               
phone call from  the perpetrator's defense attorney  who asked if                                                               
she would be willing  to talk to him.  Agreeing  to drive down to                                                               
the public  defender's office  before her  parents got  home, the                                                               
girl believed that she would  be learning about case developments                                                               
during the  meeting and  wanted to  give her  side of  the story.                                                               
Although   her  parents   were   not  included,   nor  asked   to                                                               
participate, the public defender  recorded the girl's statements,                                                               
some of which were ultimately used  against her.  Later, when her                                                               
parents  found out  about this,  they filed  a claim  against the                                                               
Public Defender  Agency (PDA) because it  was their understanding                                                               
that there had to be parental consent before questioning.                                                                       
                                                                                                                                
CHAIR  McGUIRE said  she thought  there was  a loophole,  in that                                                               
recorded  statements  are  treated  differently  than  unrecorded                                                               
statements.   She  said  that  HB 397  would  change  the law  to                                                               
require parental  consent before  a minor  speaks with  a defense                                                               
investigator  or  defense  attorney.    It  allows  a  parent  or                                                               
guardian to obtain  a transcript of the  recorded statements made                                                               
by  the minor  victim  or witness.    She said  the  bill has  an                                                               
important exemption  in that if  the victim's parent  or guardian                                                               
is the  defendant, the victim  would not have to  obtain parental                                                               
consent.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE noted that one  draft version of the bill addressed                                                               
only the [aforementioned] "loophole."   However, while working on                                                               
the  bill,  the  drafters   noticed  inconsistencies  in  [other]                                                               
sections  of  statute,  so  HB  397 now  also  deals  with  those                                                               
inconsistencies.  Mentioning  that there may not  be enough votes                                                               
in the Senate to pass the  bill's proposed court rule change, she                                                               
indicated that  at the very  least, she  wants to get  the bill's                                                               
intent into law.                                                                                                                
                                                                                                                                
Number 0943                                                                                                                     
                                                                                                                                
VANESSA  TONDINI, Staff  to Representative  Lesil McGuire,  House                                                               
Judiciary Standing Committee,  Alaska State Legislature, relayed,                                                               
on  behalf of  Chair  McGuire,  sponsor, that  HB  397 amends  AS                                                               
12.61.120(b),   AS   12.61.120(c),   AS  12.61.120(d),   and   AS                                                               
12.61.120(e).  She pointed out that  in almost all other areas of                                                               
the  law  where  minors'  rights  are an  issue,  a  juvenile  is                                                               
normally deemed  not competent to  waive those rights.   She said                                                               
the changes to  [AS 12.61.120] are consistent  with Alaska's laws                                                               
and policies.   Upon adding the additional step  that the defense                                                               
team  would have  to go  through in  order to  contact the  minor                                                               
victim or witness, the drafters  felt that an indirect court rule                                                               
amendment should  be included in  the bill  as a safeguard.   She                                                               
remarked that  the intent  of the bill's  current language  is to                                                               
make all sections pertaining to this issue conforming.                                                                          
                                                                                                                                
REPRESENTATIVE GARA opined  that what Chair McGuire  is calling a                                                               
loophole  is simply  a  policy  choice.   He  suggested that  the                                                               
reason why  current law  says that if  the statement  is recorded                                                               
then  parental   consent  is   not  needed,   is  to   avoid  the                                                               
circumstance where someone tricks  a minor into [testifying], and                                                               
there is no tape or record of  it.  A prior legislature said that                                                               
if there is a recording, it  is possible to tell whether there is                                                               
any  untoward  conduct  going  on.   He  explained,  if  parental                                                               
consent is required, the defense  investigator has to go back two                                                               
or three times to be [present]  at the same place that the parent                                                               
and victim  are together.   He  said HB 397  is going  to require                                                               
more investigative work  [on the defense's part],  adding that he                                                               
wants  the  playing field  to  be  level.    He asked  whether  a                                                               
different rule  was being  adopted for the  defense than  for the                                                               
prosecution, or  whether the rule  would be  the same.   In other                                                               
words,  if  the investigator  for  the  defense  now has  to  get                                                               
consent  from  the parent,  does  the  same  rule apply  for  the                                                               
prosecution.                                                                                                                    
                                                                                                                                
MS. TONDINI  opined that  the current  policy and  purpose behind                                                               
these statutes assumes that victims  and witnesses are at risk of                                                               
harassment, intimidation,  and invasion of privacy  when they are                                                               
unwillingly thrust into the legal  system.  These potential harms                                                               
increase drastically when  the victim is a minor, she  said.  She                                                               
went on to  say that AS 12.61.120(b) deals  with situations where                                                               
the defendant is  proceeding without counsel and is  deemed to be                                                               
dangerous  and poses  a threat  to the  victim or  witness.   The                                                               
court  will protect  the  address and  telephone  number [of  the                                                               
victim or witness]  by providing it to a third  party who acts as                                                               
the  defendant's  representative  in  contacting  the  victim  or                                                               
witness.     If  the   victim  or  witness   is  a   minor,  [the                                                               
representative] must go through the parent.                                                                                     
                                                                                                                                
MS. TONDINI noted that Section 3  specifies that if the victim or                                                               
witness is  a minor, [the  defendant or defending  attorney] must                                                               
also obtain permission  from the parent to contact  the victim or                                                               
witness.   Notification of  the rights of  the victim  or witness                                                               
must also  be given to  the parents.   She said that  proposed AS                                                               
12.61.120(d)  changes the  requirement that  if the  statement is                                                               
being recorded, parental consent is  required.  The bill says, in                                                               
proposed AS 12.61.120(e),  the parent or guardian  may obtain the                                                               
transcript  of  the recording.    She  explained that  Section  6                                                               
states  that if  the defendant  is  the parent  or guardian,  the                                                               
defendant doesn't  have the appropriate authority  to provide the                                                               
consent.                                                                                                                        
                                                                                                                                
Number 0378                                                                                                                     
                                                                                                                                
LINDA  WILSON, Deputy  Director,  Public  Defender Agency  (PDA),                                                               
Department   of   Administration   (DOA),   said   there   is   a                                                               
constitutional provision  that says  to treat all  witnesses with                                                               
fairness and  dignity.   She said that  the question  of fairness                                                               
toward  criminal  defense investigators  needs  to  be looked  at                                                               
because this  bill does  not apply  to police  investigators, who                                                               
are  not required  to get  the consent  of a  parent before  they                                                               
interrogate or  question a minor  witness or alleged  victim, nor                                                               
is a civil investigator required to  do so.  The bill is singling                                                               
out criminal  defense investigators  and would  impair legitimate                                                               
investigative efforts.   She said  those efforts go  to providing                                                               
the  defendant with  his/her constitutionally  mandated right  of                                                               
effective assistance from counsel.                                                                                              
                                                                                                                                
MS.   WILSON   noted   that   the   statute   requiring   written                                                               
authorization for  a non-recorded  statement is in  AS 12.61.125,                                                               
which  is  not mentioned  in  HB  397  at  all.   That  section's                                                               
specific purpose  is related to  victims and witnesses  of sexual                                                               
offenses, and the  example that Chair McGuire gave was  a case of                                                               
an  alleged  sexual offense,  Ms.  Wilson  said, adding  that  AS                                                               
12.61.120  says  nothing,  currently,   about  requiring  a  non-                                                               
recorded statement to have parental consent.                                                                                    
                                                                                                                                
MS. WILSON  explained that  when one  has a  defense investigator                                                               
doing  a legitimate  investigative effort,  it is  another search                                                               
for the truth.   When good work  is done by the  defense team, it                                                               
often results  in flushing out relevant  facts in a case.   Those                                                               
facts can  ultimately resolve  the case,  short of  trial, either                                                               
because  all of  the  problems have  been  resolved, or  possible                                                               
defenses have  been found.  There  may be a situation  where, the                                                               
first  time  the witness  is  allowed  to  be questioned  by  the                                                               
defense team, is at  trial.  More cases may go  to trial if there                                                               
are less  opportunities and more  barriers to the ability  of the                                                               
defense investigators to do the work they need to do.                                                                           
                                                                                                                                
MS.  WILSON said  the focus  of  the bill  seems to  be from  the                                                               
perspective of the sex offense case,  so it is possible that this                                                               
could be  limited to simply changing  AS 12.61.125.  It  would be                                                               
an easy  fix to apply  the requirement for  written authorization                                                               
from the victim  or witness, whether [the  testimony is] recorded                                                               
or not  recorded, she said, adding  that it could be  expanded to                                                               
every  case dealing  with  witnesses.   There  are concerns  with                                                               
older teens  getting written or  specific consent from  a parent.                                                               
There is going to be  more investigative evidence required by the                                                               
defense.   The bill is  singling out the  criminal investigators,                                                               
she said,  noting that  it this  does not  just say  "notify", it                                                               
says, "get their consent".                                                                                                      
                                                                                                                                
TAPE 04-8, SIDE A                                                                                                             
Number 0001                                                                                                                     
                                                                                                                                
MS.  WILSON concluded  by  remarking that  under  HB 397,  police                                                               
still  wouldn't have  to  get  the consent  of  the parents  even                                                               
though the defense  would.  She said she is  not sure that that's                                                               
very fair.                                                                                                                      
                                                                                                                                
CHAIR McGUIRE  explained that although the  aforementioned sexual                                                               
assault  case  was what  prompted  her  to  look at  the  current                                                               
statutes regarding parental notification,  the intent was to have                                                               
HB 397 apply to more than just sexual assault cases.                                                                            
                                                                                                                                
Number 0058                                                                                                                     
                                                                                                                                
STEPHEN BRANCHFLOWER, Director, Office  of Victims' Rights (OVR),                                                               
Alaska State  Legislature, turned  to some  of the  issues raised                                                               
earlier in the discussion.   Regarding the phrase, the search for                                                               
the truth, he suggested that the  meaning of that phrase could be                                                               
debated at  length because what  the truth  is to the  defense is                                                               
oftentimes  far  different  than  what   the  truth  is  to  [the                                                               
prosecution].  He elaborated:                                                                                                   
                                                                                                                                
     I've  heard  judges  ...  [remark  that]  the  criminal                                                                    
     justice  machine  does  not  provide  a  level  playing                                                                    
     field.   And I agree with  that, but I have  to qualify                                                                    
     that  by  saying  that  the reason  it's  not  a  level                                                                    
     playing field is [that] in  many respects, the criminal                                                                    
     justice system favors the  defendant against the state.                                                                    
     So  it's  not level;  not  because  the state  has  the                                                                    
     advantage,  ...  [but]  because  the  defense  has  the                                                                    
     advantage.   Let  me  give you  some  examples. ...  In                                                                    
     response   to  Representative   Gara's  inquiry   about                                                                    
     whether  or  not we  had  ...  different standards  for                                                                    
     police and defendants, the answer  is yes, of course we                                                                    
     do.                                                                                                                        
                                                                                                                                
     But that's  not a  bad thing; there  are many  areas in                                                                    
     the  law   that  involve  different  standards.     For                                                                    
     example,  the  defense  starts out  with  ...  a  clean                                                                    
     slate, as  the judge  instructs the  jury, and  has the                                                                    
     presumption of  innocence.  That's something  the state                                                                    
     has to overcome,  so the scales of  justice don't start                                                                    
     off  equally  balanced.   The  defendant  has  a  Fifth                                                                    
     Amendment right  not to be called  upon, which includes                                                                    
     -  and it  has been  interpreted  to include  - not  to                                                                    
     require him to  share the discovery.  A  few years ago,                                                                    
     the  legislature  promulgated  a  reciprocal  discovery                                                                    
     statute in  an effort  to level  the playing  field, so                                                                    
     that if  the defendant wanted discovery,  he would have                                                                    
     to provide  discovery to the state  to avoid surprises.                                                                    
     And that was declared unconstitutional.                                                                                    
                                                                                                                                
Number 0201                                                                                                                     
                                                                                                                                
MR. BRANCHFLOWER continued:                                                                                                     
                                                                                                                                
     So  yes, there  are different  standards, but  ... each                                                                    
     different  standard, I  believe, serves  ... legitimate                                                                    
     public policy.   Now,  it's true  that the  defense has                                                                    
     the  right  to conduct  their  own  investigation in  a                                                                    
     criminal  case, and  this bill  does  not impair  that.                                                                    
     But the truth  of the matter is  that the investigation                                                                    
     that  the  defense  does  is   not  anything  like  the                                                                    
     investigation the  police do, because the  police start                                                                    
     off at ground  zero.  They start out in  the dark; they                                                                    
     don't know what the facts  are, they don't know who the                                                                    
     responsible person  is.  By  the time the  defendant is                                                                    
     charged,  after they  determine  who's responsible  and                                                                    
     after the ... state  gets involved, the public defender                                                                    
     has the benefit, through [the  Alaska Rules of Criminal                                                                    
     Procedure] Rule  16, of all  that discovery.   They get                                                                    
     copies of the lab reports,  ... all the police reports,                                                                    
     the statements, et cetera.                                                                                                 
                                                                                                                                
     So when  they go  out to  conduct an  investigation, as                                                                    
     they did  in [the Brooke]  case, they are  not starting                                                                    
     out from  ground zero to  find out what  happened; they                                                                    
     are  ... not  necessarily trying  to find,  quote, "the                                                                    
     truth." ... [What] they're trying  to do is sustain the                                                                    
     burden that they have, which  is the burden of creating                                                                    
     reasonable doubt.   It's not proving the  case beyond a                                                                    
     reasonable  doubt; it's  creating doubt.   And  the way                                                                    
     they do  that is  by obtaining a  statement, preferably                                                                    
     recorded, ...  in order to  impeach witnesses  at trial                                                                    
     in an effort  to undermine the state's case.   And when                                                                    
     that  happens,   when  mid-trial   impeachment  occurs,                                                                    
     witnesses  lose  credibility,  and  it  makes  it  very                                                                    
     difficult for  12 jurors to  agree beyond  a reasonable                                                                    
     doubt.   Oftentimes  the state  is surprised,  and that                                                                    
     can prejudice the case.                                                                                                    
                                                                                                                                
MR. BRANCHFLOWER concluded:                                                                                                     
                                                                                                                                
     Now, the bill that you have  before you, all it does is                                                                    
     it requires  parental input when  the defendant  or the                                                                    
     defense   attorney   wishes   to  obtain   a   recorded                                                                    
     statement.   And  that brings  up  to a  level ...  the                                                                    
     status  quo  regarding  when  the  public  defender  or                                                                    
     defense  investigator wishes  to obtain  a non-recorded                                                                    
     or written  interview from  a minor.   It  just extends                                                                    
     the same  protection to the  same class of  ... people,                                                                    
     which are the  minors.  I think it  also serves another                                                                    
     interest,  which is,  it  helps  parents and  guardians                                                                    
     learn about what's going on  in their children's lives,                                                                    
     and it helps  them make smart decisions,  it helps them                                                                    
     make decisions that hopefully  avoid bad decisions that                                                                    
     will have lifelong lasting effect.   So yes, we do have                                                                    
     different  standards,  but  I   think  that  there  are                                                                    
         legitimate public policies that underlie those                                                                         
     different standards - on both sides.  Thank you.                                                                           
                                                                                                                                
Number 0430                                                                                                                     
                                                                                                                                
MS. TONDINI, turning to an  issue raised by Ms. Wilson, explained                                                               
that AS  12.61.120 was amended  because AS  12.61.125(2)(A) reads                                                               
as  follows:   "if the  statement is  taken as  a recording,  the                                                               
recording  is taken  in compliance  with AS  12.61.120" and  thus                                                               
refers back to AS 12.61.120.   Therefore, AS 12.61.120 is amended                                                               
in  HB 397.    She further  explained that  the  only reason  the                                                               
addition was made in this  section is because the procedures with                                                               
which the recording needs to  comply are extensively specified in                                                               
AS  12.61.120.   The desire  was to  ensure that  those recording                                                               
procedures  were  also  followed  in cases  dealing  with  sexual                                                               
offenses.    "If  what  we're   saying  is  parental  consent  is                                                               
inherently   required  because   these   minors  aren't   legally                                                               
competent to waive these rights, then  we should make it clear in                                                               
the statutes  and be  uniform and  make sure  it applies  both to                                                               
recorded and  nonrecorded statements for sexual  offenses and all                                                               
offenses," she clarified.                                                                                                       
                                                                                                                                
REPRESENTATIVE  GARA acknowledged  that he  and Mr.  Branchflower                                                               
disagree  on this  matter and  remarked that  the rules  can't be                                                               
constructed under the assumption that  all people who are charged                                                               
are guilty.   He pointed out that sometimes when  things are made                                                               
easier  to convict  guilty people,  it  also makes  it easier  to                                                               
convict  innocent people.   The  aforementioned  is the  struggle                                                               
[before the legislature].  Representative  Gara posed a situation                                                               
in which there  is a defendant who is being  wrongly charged with                                                               
a crime, who's  being threatened that he/she will go  to jail for                                                               
something   that   individual   didn't    do.      Assuming   the                                                               
aforementioned  case,  Representative  Gara questioned  why  it's                                                               
being made easier  for the prosecution to prove  the case against                                                               
the innocent  person than is being  made for the defense  team to                                                               
prove that the  person is innocent.  He emphasized  that it seems                                                               
the rules should  be consistent.  Therefore,  if the investigator                                                               
for one side [is required  to] obtain parental consent, so should                                                               
the other side.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  GARA suggested  developing a  role that  protects                                                               
people in  the greatest  manner possible  and perhaps  to protect                                                               
victims and  minors, parental consent should  always be required.                                                               
He said  that he didn't  have a problem with  the aforementioned,                                                               
although he  did have a problem  if one side is  tilted such that                                                               
one side  has an easier  time proving  their case than  the other                                                               
side.  He acknowledged that the  playing field is tilted in favor                                                               
of one side in that the  defendant starts with the presumption of                                                               
innocence, which he viewed as a  good rule that he didn't want to                                                               
eliminate.  However,  he said he didn't believe it's  a good rule                                                               
to  tilt it  here.   If  there is  a possibility  that a  defense                                                               
investigator will act  in an abusive manner toward  a minor, then                                                               
wouldn't  it  also  be  possible that  an  investigator  for  the                                                               
prosecution will investigate the case  in an abusive way toward a                                                               
minor as  well.  Shouldn't one  be concerned about that  as well,                                                               
he asked.                                                                                                                       
                                                                                                                                
MR.  BRANCHFLOWER  related  that  most  cases  involving  legally                                                               
innocent people  are screened out, although  he acknowledged that                                                               
from time to  time juries do return not guilty  verdicts.  In the                                                               
cases  with which  Mr. Branchflower  is familiar,  he said  those                                                               
verdicts represented a failure of  proof rather than a not guilty                                                               
individual.  Mr. Branchflower opined  that it is neither workable                                                               
nor  necessary to  impose the  same requirements  on police  with                                                               
regard to contacting  parents because the police  most often have                                                               
the  same  best  interest  of   the  witnesses,  including  minor                                                               
witnesses, as the parents do.   The interests of the parents, the                                                               
victims,  and the  police  are  all in  sync  because all  desire                                                               
holding the culpable person accountable.   A police officer isn't                                                               
looking for  inconsistent statements to impeach  an individual on                                                               
trial.  Therefore,  society, through the police,  has an interest                                                               
in sustaining the burden in  order to hold offenders accountable.                                                               
Society's   duty  to   protect   victims  is   mandated  in   the                                                               
constitution, he highlighted.  Mr.  Branchflower pointed out that                                                               
the legislature  has an obligation  to protect its  citizens from                                                               
undue  influence,  which  is  exactly   what  the  statute  does,                                                               
especially with regard to minors.                                                                                               
                                                                                                                                
Number 0934                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out  that a [minor  female] has                                                               
the  right  to  privacy  of  her own  body  with  respect  to  an                                                               
abortion, and therefore doesn't  have to obtain parental consent.                                                               
However, [this legislation] won't let  a minor individual talk to                                                               
the defense  without parental consent.   Therefore, he questioned                                                               
whether  the  witness  has  a constitutional  right  to  talk  to                                                               
whomever they want.                                                                                                             
                                                                                                                                
[HB 397 was held over.]                                                                                                         

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