Legislature(1995 - 1996)

02/06/1995 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 SJUD - 2/6/95                                                                 
 SENATOR TAYLOR announced the committee would be discussing Work               
 Draft F of SB 10.                                                             
 SENATOR LEMAN, sponsor of SB 10, informed committee members that              
 the original intent of SB 10 was to adopt the comparable federal              
 rule that corresponds to Alaska Rule 16.  However, that cannot be             
 done, therefore the committee substitute addresses the issue from             
 a different perspective.  This rule revision would allow the                  
 prosecution to obtain information from the defense, and make it               
 comparable to what the defense is able to get from the prosecution.           
 This idea originated at the Crime and Corrections hearing last fall           
 in Anchorage.  Former District Attorney Ed McNally raised this                
 issue as one that needed revision to create a more equitable                  
 playing field in the discovery of information.                                
 SENATOR TAYLOR announced to those testifying on SB 10 that no                 
 action would be taken on the bill until those interested have had             
 the opportunity to review Work Draft F.                                       
 DEAN GUANELI, Assistant Attorney General, reviewed Work Draft F of            
 SB 10 for committee members.  He explained the discovery rules                
 allow the defense access to all evidence generated by the                     
 prosecution, but the prosecution does not have access to                      
 information generated by the defense.  SB 10 would correct that               
 situation by making discovery full and fair on both sides.  The               
 Department of Law has been attempting, for a number of years, to              
 get changes to the discovery rules through the Criminal Rules                 
 Committee appointed by the Supreme Court without success.  The                
 Criminal Rules Committee has made minor changes to the discovery              
 rule, some of those changes are incorporated in SB 10.                        
 Essentially, Work Draft F provides a two-tiered system of                     
 discovery.  Tier 1 would require the prosecution to turn certain              
 types of information over to the defense (page 1, line 11 through             
 page 2, line 13).  This information is constitutionally required              
 and would show that the defendant is innocent.  Grand Jury material           
 would also be given to the defense, as well as information required           
 by state statute.  Simultaneously, the defense would be required to           
 release information about the defenses it intends to raise.  If the           
 defense wants more information, such as witness statements and                
 names and addresses of experts, it must agree to provide the                  
 prosecution with similar information.  This would be the second               
 tier of Discovery and would be an option the defense could choose             
 to pursue.  The defense would waive Fifth Amendment rights when               
 opting into Tier Two.  That structure maintains constitutionality             
 given the Supreme Court's Scott Decision.  Other changes in Work              
 Draft F move sections to pages 7 and 8 to renumber existing                   
 sections.  Mr. Guaneli stated the change would provide full and               
 fair discovery on both sides.  The Alaska Supreme Court has amended           
 its civil rules so that mandatory discovery is required on both               
 sides.  When both sides are equally informed, fairer and more just            
 results will occur as a result of litigation.  It also allows                 
 fairer results in pretrial resolution of a matter.                            
 SENATOR TAYLOR asked whether the provision that requires the                  
 disclosure of physical evidence would abridge a person's Fifth                
 Amendment right since the evidence would be used against the                  
 defendant.  Mr. Guaneli replied that specific provision was                   
 recommended by the Criminal Rules Committee as the defense attorney           
 is ethically obligated to turn over physical evidence in their                
 possession.  The Fifth Amendment guarantee is protected by the                
 provisions beginning on page 2, line 3.  He explained in many cases           
 the defense attorney will turn over the murder weapon to the police           
 but will not disclose the source.                                             
 SENATOR TAYLOR noted if the client reveals evidence to his/her                
 attorney, the attorney would be required to advise the client to              
 turn the evidence over, otherwise the attorney would be an                    
 accomplice to the crime.  Under current law, and the provisions of            
 SB 10, the attorney is not required to disclose the source of the             
 evidence.  Mr. Guaneli stated the evidence can be used if the                 
 prosecution can establish, through independent means, it is                   
 relevant to the case, i.e. through fingerprints.                              
 Number 429                                                                    
 SENATOR GREEN asked if the defense is not required to provide the             
 prosecution with any information under the current system.  Mr.               
 Guaneli responded the defense is currently required to disclose the           
 names of expert witnesses that the defense intends to use at trial.           
 SENATOR TAYLOR asked if SB 10 might prevent the defense from hiring           
 experts and cause them to utilize other devices.  Mr. Guaneli felt            
 some defense attorneys might not choose to opt into these                     
 provisions, although most find expert testimony very useful in                
 particular types of cases.                                                    
 SENATOR TAYLOR stated the current system that requires the                    
 prosecution to disclose information occurred through court                    
 decision.  He asked if changes to discovery rules have been made in           
 other states.  Mr. Guaneli replied the State of Florida has the               
 two-tiered system and about 99 percent of the defendants opt into             
 that system, and California has a similar provision which may have            
 been changed through a constitutional amendment.  SENATOR TAYLOR              
 asked if that is why Judge Ito took the exceptional step of                   
 allowing the prosecution a second opening argument because of a               
 violation by the defense regarding the list of witnesses and asked            
 if that would not be a violation under Alaska's current rule.  Mr.            
 Guaneli noted it would not, but some judges have tried to require             
 the defense to list witnesses at the beginning of the trial.  He              
 noted that Alaska has a relatively small jury pool, and witnesses             
 and jurors may be familiar with each other.  Early disclosure of              
 witness lists would prevent problems arising from that familiarity.           
 SENATOR TAYLOR acknowledged that occurrence and stated that is one            
 reason why changing the rule may be of benefit to the system.  He             
 noted this issue is important and requires a thorough review.                 
 Number 498                                                                    
 JOHN SALEMI testified on SB 10.  He felt, from the defense's                  
 perspective, there is a need for an adjustment to the current                 
 discovery rules used by the Alaska courts.  There are isolated                
 incidents when the prosecution is not given adequate notice,                  
 especially in regard to expert witnesses.  He supports changing the           
 rule to require the defense to provide adequate notice of expert              
 witnesses and the nature of their testimony.  He expressed concern            
 that SB 10 may have unintended negative consequences for the                  
 Criminal Justice System.  He noted the playing field is not tilted            
 in favor of defendants because the State has more money to                    
 prosecute cases.  The discovery rule is one of the few areas where            
 the defense can evaluate the prosecution's case and make decisions.           
 Mr. Salemi felt Alaska has enormous resources at its disposal to              
 investigate crime and arrest people, and to prosecute them for                
 purported criminal acts.  He explained that the State of Alaska               
 system of justice is very tough on crime.  There has been a plea              
 bargaining ban for the past 20 years and Alaska has had the                   
 toughest mandatory sentencing laws in the country for the past 14 -           
 15 years.  He felt that despite the hostile environment for people            
 convicted, only six percent of mandatory sentence cases that are              
 prosecuted are tried; the other 94 percent result in guilty or no             
 contest pleas.  He felt that is a good statistical indication that            
 the system is working.  He stated most trials are straightforward             
 regarding who will be called to testify, and in many cases the                
 defense does not call any witnesses because the State has the                 
 burden of proof.  Mr. Salemi conceded that the prosecution has been           
 "ambushed" in cases, but that has occurred in a very small number             
 of cases.  The Public Defender Agency lawyers view the playing                
 field as fair and not tilted in favor of defendants.  Anyone can be           
 arrested and jailed whether guilty or not, therefore the defendant            
 should know what the case against him/her is about.                           
 Regarding the two-tiered system, Mr. Salemi stated in the first               
 tier, the defense would be allowed limited discovery; in the second           
 tier the defense would opt in but the exchange of information would           
 be reciprocal.  He explained that under Florida's system, the                 
 defense decides whether to give up the Fifth Amendment right, but             
 in SB 10, the defendant, with no legal training, would be required            
 to give up that right.  He said Public Defender clients do not                
 often trust their attorneys since they had no choice in hiring                
 them.  No other state requires the defendant to give up that                  
 constitutional right.  If this rule is revised, there will be a               
 percentage of cases in which discovery will be limited, preventing            
 the defense from fully evaluating the case.  This will increase the           
 likelihood that the defendant will make an erroneous decision which           
 will result in a trial case when they should have entered a plea              
 and cut their losses.  Mr. Salemi feared the rule change could                
 raise game playing in criminal prosecution cases to a higher level.           
 Mr. Salemi felt the prosecution should be entitled to more notice             
 and more information about proposed experts called by the defense             
 and they should be given notice of all affirmative and statutory              
 defenses the defense intends to use.  He also felt the names of               
 alibi witnesses should be provided to the prosecution.  Regarding             
 the fiscal impact on the Public Defender Agency, of the 13 offices,           
 5 do not have investigators.  If this bill passes, those offices              
 would need at least one investigator in each office.                          
 Number 496                                                                    
 SENATOR TAYLOR requested Mr. Salemi to send information to the                
 committee, prior to Wednesday, regarding the areas provided in the            
 bill that would create an improved working relationship between               
 prosecution and defense attorneys.  He also requested information             
 regarding mutually exclusive affirmative defenses.  He expressed              
 concern that the bill sets up a situation in which a defendant                
 would have to waive his/her Fifth Amendment right in order to                 
 receive what was previously ordered as normal discovery.  He wanted           
 to provide assurances that neither side would be entrapped in a               
 difficult position, nor did he want to set up a situation that                
 would be promptly appealed to the Supreme Court.                              

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