CSHB 314(JUD) AM: "An Act relating to domestic violence and to crime victims and witnesses; and amending Rule 613, Alaska Rules of Evidence."
00CS FOR HOUSE BILL NO. 314(JUD) am 01 "An Act relating to domestic violence and to crime victims and witnesses; and 02 amending Rule 613, Alaska Rules of Evidence." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 11.56.740(a) is amended to read: 05 (a) A person commits the crime of violating a domestic violence restraining 06 order if [(1)] the person knowingly violates a provision of an order issued under 07 AS 25.35.010(b) or 25.35.020 08 (1) restraining the person from communicating directly or indirectly 09 with another; 10 (2) restraining the person from subjecting another to domestic 11 violence; 12 (3) directing the person to vacate the home of another; or 13 (4) restraining the person from entering a propelled vehicle in the 14 possession of or occupied by another [AND (2) AT THE TIME THE
01 RESTRAINING ORDER WAS ISSUED, THE COURT MADE A FINDING THAT 02 THE PERSON HAD SUBJECTED ANOTHER TO DOMESTIC VIOLENCE]. 03 * Sec. 2. AS 12.61.120(c) is amended to read: 04 (c) If a defendant or a person acting on behalf of a defendant 05 [REPRESENTING THE DEFENDANT, INCLUDING THE DEFENDANT'S 06 ATTORNEY OR A PERSON SPECIFIED BY THE COURT UNDER (b) OF THIS 07 SECTION,] contacts the victim of an offense with which the defendant is or could be 08 charged, the person shall clearly inform the victim 09 (1) of the person's identity and specific association with the defendant; 10 (2) that the victim does not have to talk to the person unless the victim 11 wishes; and 12 (3) that the victim may have a prosecuting attorney or other person 13 present during an interview. 14 * Sec. 3. AS 12.61.120 is amended by adding new subsections to read: 15 (d) If a defendant or a person acting on behalf of a defendant wishes to make 16 a recording of statements of the victim of an offense with which the defendant is or 17 could be charged in this or another jurisdiction, or of a witness, the person shall, before 18 recording begins, obtain the consent of the victim or witness to record the statement by 19 clearly informing the victim or witness (1) of the information set out in (c) of this 20 section, (2) that the statement will be recorded if the victim or witness consents, and (3) 21 that the victim or witness may obtain a transcript or other copy of the recorded statement 22 upon request. When recording begins, the person making the recording shall indicate in 23 the recording that the victim or witness has been informed as required by this subsection, 24 and the victim or witness shall state in the recording that consent of the victim or witness 25 to the recording has been given. 26 (e) If a victim or witness requests a transcript or other copy of a recorded 27 statement taken under (d) of this section, the defense shall prepare the transcript or other 28 copy and provide it to the person whose statement was recorded. 29 (f) In this section, "recording" means capturing a statement of a person, whether 30 by magnetic tape or other electronic or electromagnetic means. 31 * Sec. 4. AS 12.61 is amended by adding new sections to read:
01 Sec. 12.61.125. VICTIMS AND WITNESSES OF SEXUAL OFFENSES. (a) 02 The defendant accused of a sexual offense, the defendant's counsel, or an investigator 03 or other person acting on behalf of the defendant, may not 04 (1) notwithstanding AS 12.61.120, contact the victim of the offense or 05 a witness to the offense if the victim or witness, or the parent or guardian of the victim 06 or witness if the victim or witness is a minor, has informed the defendant or the 07 defendant's counsel in writing or in person that the victim or witness does not wish to 08 be contacted by the defense; a victim or witness who has not informed the defendant or 09 the defendant's counsel in writing or in person that the victim does not wish to be 10 contacted by the defense is entitled to rights as provided in AS 12.61.120; 11 (2) obtain a statement from the victim of the offense or a witness to the 12 offense, unless, 13 (A) if the statement is taken as a recording, the recording is taken 14 in compliance with AS 12.61.120; or 15 (B) if the statement is not taken as a recording, written 16 authorization is first obtained from the victim or witness, or from the parent or 17 guardian of the victim or witness if the victim or witness is a minor; the written 18 authorization must state that the victim or witness is aware that there is no legal 19 requirement that the victim or witness talk to the defense; a victim or witness 20 making a statement under this subparagraph remains entitled to rights as provided 21 in AS 12.61.120. 22 (b) A defendant who is the parent or guardian of a minor victim or witness may 23 not provide the authorization required under (a) of the section. 24 (c) If an attorney, or a person acting on behalf of the defendant for an attorney, 25 violates this section, the court shall refer the violation to the Disciplinary Board of the 26 Alaska Bar Association as a grievance. 27 (d) In this section, 28 (1) "recording" has the meaning given in AS 12.61.120; 29 (2) "sexual offense" means a violation of AS 11.41.410 - 11.41.470. 30 Sec. 12.61.127. INADMISSIBILITY OF STATEMENTS TAKEN IN 31 VIOLATION OF AS 12.61.120 or 12.61.125. A statement obtained from a victim or
01 witness in violation of AS 12.61.120 or 12.61.125 is presumed inadmissible in a 02 prosecution of the defendant. To overcome the presumption of inadmissibility, the 03 defendant must prove by clear and convincing evidence that 04 (1) the statement is reliable; 05 (2) similar evidence is unavailable from any other source; and 06 (3) failure to introduce the statement would substantially undermine the 07 reliability of the fact-finding process and result in manifest injustice. 08 * Sec. 5. AS 12.61.900 is amended by adding new paragraphs to read: 09 (3) "person acting on behalf of a defendant" includes the defendant's 10 attorney, an agent of the defendant or the defendant's attorney, or a person specified by 11 the court under AS 12.61.120(b) or an agent of that person, but does not include the 12 defendant; 13 (4) "witness" means a person contacted in connection with a criminal 14 case because the person may have knowledge or information about the criminal case. 15 * Sec. 6. AS 12.61.127, added by sec. 4 of this Act, has the effect of amending Rule 613, 16 Alaska Rules of Evidence, relating to impeachment of witnesses.