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CSHB 314(JUD) AM: "An Act relating to domestic violence and to crime victims and witnesses; and amending Rule 613, Alaska Rules of Evidence."

00 CS 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.