Legislature(2003 - 2004)
03/22/2004 08:04 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.