Legislature(1995 - 1996)
02/06/1995 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.