HB 323: "An Act relating to material witnesses; amending Rule 58.1, Alaska Rules of Civil Procedure, and Rule 204, Alaska Rules of Appellate Procedure; and providing for an effective date."
00 HOUSE BILL NO. 323 01 "An Act relating to material witnesses; amending Rule 58.1, Alaska Rules of Civil 02 Procedure, and Rule 204, Alaska Rules of Appellate Procedure; and providing for an 03 effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 12.50 is amended by adding new sections to read: 06 Article 3. Material Witnesses. 07 Sec. 12.50.200. Application for material witness order. (a) A prosecuting 08 attorney or defendant in a criminal action may apply to the superior court for an order 09 compelling a person to appear at a material witness hearing if there is probable cause 10 to believe that (1) the person has information material to the prosecution or defense of 11 a pending indictment, information, or complaint for a crime, or a criminal 12 investigation before a grand jury, and (2) the person is unlikely to respond to a 13 subpoena. The application may be accompanied by an application for an arrest warrant 14 when there is probable cause to believe that the person will not appear at the material
01 witness hearing unless arrested. 02 (b) The application must include a copy of any pending indictment, complaint, 03 or information and an affidavit containing 04 (1) the name and address of the person alleged to be a material 05 witness; 06 (2) a summary of the facts believed to be known by the alleged 07 material witness and their relevance to the pending criminal action or investigation; 08 (3) a summary of the facts supporting the belief that the person 09 possesses information material to the pending criminal action or investigation; and 10 (4) a summary of the facts supporting the claim that the alleged 11 material witness is unlikely to respond to a subpoena. 12 (c) If the application requests an arrest warrant, the affidavit must set out why 13 immediate arrest is necessary. 14 Sec. 12.50.210. Order to appear. (a) If there is probable cause to believe that 15 a material witness order may issue against the person named in the material witness 16 order application, the court may order the person to appear at a hearing to determine 17 whether the person should be adjudged a material witness. 18 (b) The order and a copy of the application shall be served personally upon the 19 alleged material witness at least 48 hours before the hearing, unless the court adjusts 20 the time period for good cause, and shall advise the person of 21 (1) the time and place of the hearing; and 22 (2) the right to be represented by an attorney or to have an attorney 23 appointed if the person cannot afford one. 24 Sec. 12.50.220. Arrest with warrant. (a) If there is clear and convincing 25 evidence that the person named in the material witness order application will not be 26 available as a witness unless immediately arrested, the court may issue an arrest 27 warrant. The arrest warrant must require that the person be brought before the court 28 immediately after arrest. If the arrest does not take place during the regular business 29 hours of the court, the person shall be brought to the closest judge of the superior 30 court. 31 (b) The court shall inform the person of
01 (1) the reason for the arrest; 02 (2) the time and place of the hearing to determine whether the person 03 is a material witness; and 04 (3) the right to be represented by an attorney or to have an attorney 05 appointed if the person cannot afford one. 06 (c) The court shall set conditions for release or, if there is clear and convincing 07 evidence that the person will not be available as a witness unless confined, may order 08 the person confined until the material witness hearing, which must take place within 09 48 hours after the arrest. 10 Sec. 12.50.230. Arrest without warrant. (a) A law enforcement officer may 11 arrest an alleged material witness without a warrant only if the arrest occurs before the 12 filing of an indictment, information, or complaint for a crime, or the initiation of a 13 criminal investigation before a grand jury, and if the officer has probable cause to 14 believe that 15 (1) a crime has been committed; 16 (2) the alleged material witness has information material to the 17 prosecution of that crime; 18 (3) the alleged material witness will refuse to cooperate with the 19 officer in the investigation of that crime; and 20 (4) the delay necessary to obtain an arrest warrant or an order to appear 21 would result in the unavailability of the alleged material witness. 22 (b) Following the warrantless arrest of an alleged material witness, the law 23 enforcement officer shall immediately bring the person before a judge of the superior 24 court. If court is not in session, the officer shall immediately bring the person before 25 the closest judge of the superior court. The judge shall determine whether there is 26 probable cause to believe that the person is a material witness of a crime and, if an 27 indictment, information, or complaint for that crime has not issued or if a grand jury 28 has not commenced a criminal investigation of that crime, whether there is probable 29 cause to believe that, within 48 hours after the arrest, an indictment, information, or 30 complaint will issue or a grand jury investigation will commence. If the court finds 31 that probable cause exists, the court shall proceed as if an application for an order and
01 warrant were made under AS 12.50.200. 02 Sec. 12.50.240. Material witness hearing. (a) At the material witness hearing, 03 the alleged material witness shall have the following rights: 04 (1) the right to be represented by an attorney or to have an attorney 05 appointed if the person cannot afford one; 06 (2) the right to be heard and to present witnesses and evidence; 07 (3) the right to have all of the evidence considered by the court in 08 support of the application; 09 (4) the right to confront and cross-examine witnesses; and 10 (5) the right to appeal a material witness order to the court of appeals. 11 (b) If the court finds that there is probable cause to believe that the person is 12 unlikely to respond to a subpoena and has information material to the prosecution or 13 defense of a pending indictment, information, or complaint for a crime, or a criminal 14 investigation before a grand jury, the court shall determine that the person is a material 15 witness and may set the conditions of release of the material witness. 16 (c) If the court finds by clear and convincing evidence that confinement is the 17 only method that will secure the appearance of the material witness, the court may 18 order the confinement of the material witness. 19 (d) The court shall set out the facts and reasons in support of the material 20 witness order on the record. 21 Sec. 12.50.250. Conditions of release; confinement, fees. (a) An arrested or 22 confined material witness may not be held in a correctional facility but shall be 23 provided food and board as is provided to a member of a jury when sequestered. 24 (b) The conditions of release for a material witness or for a person held on an 25 application for a material witness order shall be the least restrictive to ensure the 26 appearance of the material witness. The court may 27 (1) place the material witness in the custody of a designated person or 28 organization agreeing to supervise the person; 29 (2) restrict the travel of the person; 30 (3) require the person to report to the court at specific places or times; 31 (4) set bail; or
01 (5) impose other reasonable restrictions on the material witness. 02 (c) A person arrested or confined as a material witness is entitled to fees as 03 provided in Rule 7, Alaska Rules of Administration. The party obtaining the material 04 witness order bears the cost of confinement and payment, unless the party is indigent. 05 Sec. 12.50.260. Deposition. A material witness may apply to the court for an 06 order directing that a deposition be taken to preserve the witness's testimony. After the 07 deposition is taken, the court shall vacate the terms of confinement contained in the 08 material witness order and impose the least restrictive conditions to secure the 09 appearance of the material witness. 10 Sec. 12.50.270. Orders appealable. A material witness order is a final order 11 for purposes of an appeal as of right to the court of appeals but, on motion of the 12 material witness, may be reconsidered at any time by the court that entered the order. 13 * Sec. 2. AS 22.07.020(a) is amended to read: 14 (a) The court of appeals has appellate jurisdiction in actions and proceedings 15 commenced in the superior court involving 16 (1) criminal prosecution; 17 (2) post-conviction relief; 18 (3) matters under AS 47.12, including waiver of jurisdiction over a 19 minor under AS 47.12.100; 20 (4) extradition; 21 (5) habeas corpus; 22 (6) probation and parole; [AND] 23 (7) bail; and 24 (8) material witnesses under AS 12.50.200 - 12.50.270. 25 * Sec. 3. AS 44.21.410(a) is amended to read: 26 (a) The office of public advocacy shall 27 (1) perform the duties of the public guardian under AS 13.26.360 - 28 13.26.410; 29 (2) provide visitors and experts in guardianship proceedings under 30 AS 13.26.131; 31 (3) provide guardian ad litem services to children in child protection
01 actions under AS 47.17.030(e) and to wards and respondents in guardianship 02 proceedings who will suffer financial hardship or become dependent upon a 03 government agency or a private person or agency if the services are not provided at 04 state expense under AS 13.26.025; 05 (4) provide legal representation in cases involving judicial bypass 06 procedures for minors seeking abortions under AS 18.16.030, in guardianship 07 proceedings to respondents who are financially unable to employ attorneys under 08 AS 13.26.106(b), to indigent parties in cases involving child custody in which the 09 opposing party is represented by counsel provided by a public agency, to indigent 10 parents or guardians of a minor respondent in a commitment proceeding concerning 11 the minor under AS 47.30.775; 12 (5) provide legal representation and guardian ad litem services under 13 AS 25.24.310; in cases arising under AS 47.15 (Uniform Interstate Compact on 14 Juveniles); in cases involving petitions to adopt a minor under AS 25.23.125(b) or 15 petitions for the termination of parental rights on grounds set out in 16 AS 25.23.180(c)(3); in cases involving petitions to remove the disabilities of a minor 17 under AS 09.55.590; in children's proceedings under AS 47.10.050(a) or under 18 AS 47.12.090; in cases involving appointments under AS 18.66.100(a) in petitions for 19 protective orders on behalf of a minor; and in cases involving indigent persons who 20 are entitled to representation under AS 18.85.100 and who cannot be represented by 21 the public defender agency because of a conflict of interests; 22 (6) develop and coordinate a program to recruit, select, train, assign, 23 and supervise volunteer guardians ad litem from local communities to aid in delivering 24 services in cases in which the office of public advocacy is appointed as guardian ad 25 litem; 26 (7) provide guardian ad litem services in proceedings under 27 AS 12.45.046 or AS 18.15.355 - 18.15.395; 28 (8) establish a fee schedule and collect fees for services provided by 29 the office, except as provided in AS 18.85.120 or when imposition or collection of a 30 fee is not in the public interest as defined under regulations adopted by the 31 commissioner of administration;
01 (9) provide visitors and guardians ad litem in proceedings under 02 AS 47.30.839; 03 (10) provide legal representation to an indigent parent of a child with a 04 disability; in this paragraph, "child with a disability" has the meaning given in 05 AS 14.30.350; 06 (11) provide legal representation to material witnesses and alleged 07 material witnesses arrested, confined, or subject to an order under AS 12.50.200 - 08 12.50.270. 09 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 10 read: 11 INDIRECT COURT RULE AMENDMENT. AS 12.50.270, added by sec. 1 of this 12 Act, has the effect of amending Rule 58.1, Alaska Rules of Civil Procedure, and Rule 204, 13 Alaska Rules of Appellate Procedure, by providing that material witness orders are final 14 orders for purposes of an appeal as of right while allowing the superior court to reconsider the 15 order at any time at the request of the material witness. 16 * Sec. 5. This Act takes effect July 1, 2006.