Legislature(1995 - 1996)
02/10/1995 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SJUD - 2/10/95 SB 10 CRIMINAL DISCOVERY RULES CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:40 p.m. Senators Taylor, Green, Miller and Adams were present. SENATOR TAYLOR asked Dean Guaneli to testify on SB 10. SENATOR ADAMS discussed the operating procedures of the committee. He expressed concern that committee members did not have sufficient time to review the latest committee substitute. He also noted a Judicial opinion would be coming out next week on this issue, and he wanted to see how that opinion interfaces with the committee substitute. SENATOR TAYLOR noted the committee has checked with the Court System at SENATOR ADAMS' request, and a special committee of the Alaska Supreme Court will be reviewing this specific rule. They will render a decision on February 17. SENATOR TAYLOR agreed that the committee should wait until that decision is made prior to taking any action on the bill. SENATOR TAYLOR stated he intended to take testimony on the proposed CSSB 10 at this time to familiarize members with the committee substitute. Number 056 DEAN GUANELI, Assistant Attorney General, Department of Law, reviewed the proposed CSSB 10 (Work Draft G). He explained in civil litigation, the courts agree that fair and just results are promoted by making certain information available to both the defense and prosecution in advance of trial. This is not the practice in criminal litigation. The defense has access to all of the prosecution's case information, the prosecution knows little, or nothing, about what the defense is going to present at trial. This Rule of Court (16), which sets down rules of discovery in criminal cases, was adopted by the Alaska Supreme Court under its rulemaking authority, and was the result of the Scott case in 1974. Other states have adopted rules of discovery which allow the prosecution access to some of the defense's records. He noted that in Alaska, jurors have been excused during trials because he/she was familiar with a witness. SENATOR ELLIS arrived at 1:45 p.m. MR. GUANELI continued. The intent is not to force the defendant to give a deposition, as in a civil case, as that would force the defendant to give up his/her Fifth Amendment Right. However, when the defense knows of alibi witnesses they intend to call at trial, it would promote the interest of fair and just adjudications to inform the prosecution in advance. Currently the defense is required to inform the prosecution, prior to trial, if an alibi defense is to be used, but the names of alibi witnesses do not have to be disclosed. CSSB 10 would provide the prosecution with advance notice of witnesses. In other states with different rules of court, the judge can require advance disclosure, but judges in Alaska do not have that authority under the Alaska Constitution. The Alaska Supreme Court decided that forcing a defendant to disclose the name of an alibi witness would be violating the defendant's right against self-incrimination. To deal with some of the unfairnesses in the system, CSSB 10 creates a hybrid system in which the defendant could waive his/her rights under Scott vs. State, by providing certain information to the prosecution, in exchange for information provided by the prosecution which it is not constitutionally obliged to provide. The Alaska Supreme Court could overrule the Scott Decision and amend Rule 16 to accomplish the same end, but he was unsure whether the Legislature could require the Trial Courts to order something the Alaska Supreme Court has denied. The Criminal Rules Committee to the Alaska Supreme Court has not recommended changes supported by the Public Defender Agency. He explained the Supreme Court's options are the Criminal Rules Committee recommendation or the opt-in, opt-out provision under consideration by the Legislature. MR. GUANELI informed committee members the Supreme Court would be meeting next Friday (February 17) to consider the bill, but he was unaware of any firm deadline for making a decision. Number 200 SENATOR TAYLOR noted the majority/minority reports on the Criminal Rules Committee were distributed to members' offices for review. He stated it was not his intention to hold the proposed CSSB 10 for a lengthy amount of time until the Court rendered a position, but to provide the opportunity for the Court to take action. Number 216 MR. GUANELI stated some of the same provisions recommended by the Criminal Rules Committee are included in the proposed CSSB 10. He explained the opt-in, opt-out provision sets up a two-tiered system for discovery. The first tier provides the defense a fair amount of information, more than is provided in federal court. Without opting in, the defense would be entitled to any exculpatory information, or information that might reduce the punishment, or material submitted to the Grand Jury. Grand Jury information is not provided in the federal court system. In Alaska, anytime anyone is charged with a felony offense, the case has to be presented to the Grand Jury. Witness records would be available to the defense, and they contain the names and testimony of primary witnesses the state relied upon to obtain a Grand Jury indictment. The defense would also have access to any evidence taken from a defendant and prior witness statements after the witnesses testify. If the defense wants more information, they would have to opt into Tier Two, and they would have to provide information to the prosecution. This method would eliminate surprise tactics during trial. MR. GUANELI discussed Subsection (h) on page 13 of the proposed CSSB 10 (Jud) which deals with confidential records, and is a major change to previous versions of SB 10. He explained there are a number of records the prosecution cannot get access to, but sometimes defense attornies want, including doctors' records, psychiatrists' records, police personnel records, and victim counselor records. Defense attornies often make motions to the court requesting access to such information. Current court procedure allows the judge to review the records incamera, and to decide what the defense should receive. This provision sets standards for that practice. Many judges routinely review confidential records and turn them over to the defense without analyzing whether they ought to. He has received a number of phone calls from the Police Chief in Kodiak, Jack McDonald, who heads the Alaska Police Standards Council. Mr. McDonald is concerned about the practice involving police personnel records which contain all kinds of information that may not be relevant to a particular case. The defense attornies almost always have access to these files without justification. The Alaska Police Standards Council feels this practice is inappropriate. He has also received calls from domestic violence advocates because judges routinely turn over victim counselor records to the defense. Two years ago, the Legislature passed a strongly worded privelege (AS 25.35) that says victim counselors cannot be compelled to give testimony or records in any proceeding. It hampers the ability of the victim service organizations to provide confidential services to victims. Number 298 SENATOR TAYLOR asked if those records end up in court when the victim brings the case against someone for spousal abuse, or sexual abuse of the children, etc. He asked if that would prevent a person from getting evidence that could be used in their favor. MR. GUANELI replied there are a number of exceptions to that privelege that cover child protective proceedings, or any kind of crime that may have been committed by the victim. If a civil suit is going to be filed by a victim against a perpetrator, then that information would come out. In other circumstances, there is a strong privelege set out in statute, and it seems inappropriate to routinely be giving over those records without some kind of set process. Number 315 SENATOR ADAMS stated the original version was unconstitutional. He asked Mr. Guaneli if the most recent version (Work Draft G) is a constitutional bill with the opt-in provisions. MR. GUANELI stated he believed the original version adopted the federal rule of evidence which he did not believe would be unconstitutional. The federal rule of evidence is very limited, and with some exceptions, disallows either side from getting anything. He felt CSSB 10 to be a constitutional way to accomplish the result. A more preferable way would be for the Alaska Supreme Court to do it independently. Number 331 SENATOR TAYLOR asked if there was a requirement for the defense in the O.J. Simpson case to produce a list of witnesses. MR. GUANELI replied he did not know whether there is a rule in California similar to this rule, but there was a pretrial order in that case. SENATOR TAYLOR stated that would not occur in Alaska because the defense is not obligated to provide that information. Number 340 SENATOR ADAMS noted that he had hoped a judicial opinion on the proposed CSSB 10 would have been provided, but the minority members would not mind the adoption of the Work Draft G version of CSSB 10, in order to use it as a working document. SENATOR MILLER moved the adoption of the CSSB 10 (Jud) (Work Draft G) in lieu of the original bill. There being no objection, so moved. SENATOR TAYLOR stated this bill will need a two-thirds vote to pass the Legislature. He wants to ensure the bill is constitutional and defensible before it leaves the committee. He plans to give the Court System time to review the legislation, and if they do not take independent action, the bill will be rescheduled in committee. SENATOR TAYLOR adjourned the meeting at 2:05 p.m.