Legislature(2003 - 2004)

03/22/2004 08:04 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
        HB 397-DEFENSE CONTACTS WITH VICTIMS & WITNESSES                                                                    
                                                                                                                                
MS.  VANESSA  TONDINI,  staff to  Representative  Lesil  McGuire,                                                               
sponsor of HB 397, explained  that the package of victims' rights                                                               
legislation, of which  HB 397 is part, rests on  the premise that                                                               
victims and  witnesses to violent  crimes are  unwillingly thrust                                                               
into  the legal  system. They  did not  ask to  be involved  in a                                                               
legal case and are placed at risk of harassment.                                                                                
                                                                                                                                
TAPE 04-24, SIDE A                                                                                                            
                                                                                                                                
MS. TONDINI explained that the  potential harms increase when the                                                               
victim  or witness  is a  minor and  when the  crime is  a sexual                                                               
offense. HB 397 is also known as  the Brooke Act, in honor of one                                                               
of Representative  McGuire's constituents, who was  the victim of                                                               
a rape. Her parents were  unaware that a defense investigator had                                                               
contacted  her  for an  interview,  which  she gave  without  the                                                               
guidance of her parents or an attorney.                                                                                         
                                                                                                                                
MS.  TONDINI  informed  members that  HB  397  requires  criminal                                                               
defense attorneys  and investigators to first  obtain the consent                                                               
of  a minor's  parent  or  guardian prior  to  conducting a  tape                                                               
recorded  interview  with  a  minor   sexual  assault  victim  or                                                               
witness.  The  current law  states  when  a defense  attorney  or                                                               
investigator  speaks  to  a  minor  victim  or  witness  and  the                                                               
interview is  not recorded, written  authorization must  first be                                                               
obtained from a  parent or guardian. However, no  such consent is                                                               
required  if  an  interview is  recorded.  This  loophole  leaves                                                               
juveniles  and  parents in  the  dark.  Current law  embodies  an                                                               
important  provision that  does not  allow a  defendant who  is a                                                               
parent or  guardian of a  minor sexual assault victim  or witness                                                               
to provide the  authorization required by HB 397.  She added that                                                               
statements  obtained from  a victim  or witness  in violation  of                                                               
this  statute   are  presumed   inadmissible.  To   overcome  the                                                               
presumption  of inadmissibility,  the  defendant  is required  to                                                               
prove the statement is reliable,  similar evidence is unavailable                                                               
from another  source, and  that failure  to reduce  the statement                                                               
would  substantially  undermine  the  reliability  of  the  fact-                                                               
finding process and result in manifest injustice.                                                                               
                                                                                                                                
SENATOR THERRIAULT asked why Section 1 is necessary.                                                                            
                                                                                                                                
MS.  TONDINI said  it provides  a  short title  of the  act as  a                                                               
courtesy to a constituent of Representative McGuire.                                                                            
                                                                                                                                
SENATOR  THERRIAULT said  although  he  understands a  particular                                                               
case can trigger a new section  of law, the legislature should be                                                               
careful about  inserting people's  names throughout  the statutes                                                               
for no compelling reason.                                                                                                       
                                                                                                                                
SENATOR OGAN concurred with Senator Therriault.                                                                                 
                                                                                                                                
9:50 a.m.                                                                                                                       
                                                                                                                                
MS.  BARBARA BRINK,  Alaska  Public Defender  Agency,  said as  a                                                               
defense  attorney, it  is difficult  to  understand the  negative                                                               
feelings  projected  her  way.   She  pointed  out  that  defense                                                               
investigations are not designed  to harass, intimidate, or invade                                                               
a  victim's privacy.  The defense  investigation  is designed  to                                                               
implement the  right to  counsel. HB  397 impairs  the legitimate                                                               
investigative  effort   to  right  to  counsel   by  adding  more                                                               
requirements and  rules. She  explained that  police do  the best                                                               
job possible when interviewing witnesses  at the scene, but those                                                               
witnesses  might be  alcohol impaired  or  under extreme  stress.                                                               
Sometimes interviewing witnesses who did  not come forward to the                                                               
police  can reveal  facts that  lead the  prosecutor to  conclude                                                               
that  the  initial charges  were  inappropriate.  That is  not  a                                                               
miscarriage  of  justice, it  allows  the  prosecutor to  make  a                                                               
decision  with  more truthful  information.  On  the other  hand,                                                               
further  information may  lead the  defense attorney  to conclude                                                               
the defendant  has nothing to gain  by going to trial  and should                                                               
settle  the  case.  She  asked  the  committee  to  consider  the                                                               
positive aspects  of defense investigation.  HB 397 will  make it                                                               
more difficult  for defense attorneys to  interview witnesses and                                                               
result in more indirect investigations.  She said she appreciates                                                               
the fact  that parents should  not be left  in the dark,  but the                                                               
police  and  prosecutors have  no  obligation  to inform  parents                                                               
about contact with minor victims.                                                                                               
                                                                                                                                
MR. STEVE  BRANCHFLOWER, Office of Victims'  Rights, told members                                                               
the  defense  in  any  criminal  case has  the  right  to  do  an                                                               
investigation  but that  investigation is  much different  than a                                                               
police investigation. The  police start out in the  dark. They do                                                               
not know  all or any  of the facts  about who is  responsible. By                                                               
the time  a person is charged,  the police have often  solved the                                                               
case. When a  person is charged, the defense has  a right to seek                                                               
copies  of police  reports, lab  reports, and  statements of  the                                                               
victims  and witnesses.  Therefore  when the  defense starts  its                                                               
investigation, it knows  what is in the  district attorney's file                                                               
and is not looking for evidence  of what occurred. The defense is                                                               
looking for evidence to create  doubt. The most convincing way to                                                               
do that is  to obtain a tape-recorded statement from  a victim or                                                               
witness  to impeach  at  a  trial. HB  397  does  not change  the                                                               
requirement  that  information be  provided  to  a witness  or  a                                                               
victim where the statement from the  victim or the witness is not                                                               
recorded.  It  simply  focuses  on   a  third  way  of  obtaining                                                               
information. This  bill requires parental consent  if the defense                                                               
wants to obtain information from the  minor and that the minor be                                                               
informed of his or her rights.  It will help parents to know what                                                               
is  going  on  in  their  children's  lives  and  to  make  smart                                                               
decisions. He stated support for the bill.                                                                                      
                                                                                                                                
SENATOR FRENCH  asked if, under  current law, the  defense wanted                                                               
to talk  to a witness but  not record the statement,  the defense                                                               
would have to get written consent  and notify the witness that he                                                               
or she  is under no legal  obligation to talk to  the defense. HB                                                               
397 would  simply change the law  to say if the  defense wants to                                                               
take a statement from a victim  or witness in a sexual abuse case                                                               
that  is going  to be  recorded,  the same  notification must  be                                                               
given.                                                                                                                          
                                                                                                                                
MS. TONDINI affirmed that is correct.                                                                                           
                                                                                                                                
CHAIR SEEKINS announced that public testimony was closed.                                                                       
                                                                                                                                
SENATOR THERRIAULT moved to delete Section 1 [Amendment 1].                                                                     
                                                                                                                                
CHAIR  SEEKINS  announced  without  objection,  Amendment  1  was                                                               
adopted.                                                                                                                        
                                                                                                                                
SENATOR  OGAN  moved  SCS  CSHB   397(JUD)  from  committee  with                                                               
individual recommendations and attached fiscal notes.                                                                           
                                                                                                                                
CHAIR  SEEKINS  announced  that  without  objection,  the  motion                                                               
carried.                                                                                                                        

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