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SB 15: "An Act relating to a petition to convene a grand jury; and repealing and reenacting Rule 16(b)(3), Alaska Rules of Criminal Procedure, concerning a prosecuting attorney's duty to disclose favorable information to a defendant in a criminal proceeding."

00                             SENATE BILL NO. 15                                                                          
01 "An Act relating to a petition to convene a grand jury; and repealing and reenacting                                    
02 Rule 16(b)(3), Alaska Rules of Criminal Procedure, concerning a prosecuting attorney's                                  
03 duty to disclose favorable information to a defendant in a criminal proceeding."                                        
04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
05    * Section 1. AS 12.40 is amended by adding a new section to read:                                                  
06            Sec. 12.40.120. Petition to convene a grand jury. (a) A person may petition                                
07       to convene a grand jury for the purpose of investigating a matter that, if true, would                            
08       warrant a true bill of indictment as provided in this section.                                                    
09            (b)  Before circulating a petition under this section, the petitioner shall file a                           
10       copy of the petition with the clerk of court of the judicial district in which the matter is                      
11       alleged to have occurred. The clerk shall deliver the petition to the presiding judge of                          
12       the judicial district.                                                                                            
13            (c)  Not later than four business days after the petition is filed with the court,                           
14       the presiding judge of the judicial district shall enter an order stating whether the                             
01 petition on its face identifies with reasonable specificity areas to be investigated and                                
02 sufficient general allegations to warrant a finding that an investigation may lead to                                   
03       information that, if true, would warrant a true bill of indictment.                                               
04 (d)  If the judge finds a petition is deficient under (c) of this section, the judge                                    
05 shall issue a written order setting out each deficiency. Not later than two business days                               
06 after the order finding the petition deficient is entered, the petitioner may file an                                   
07 amended petition. Not later than two business days after the amended petition is filed                                  
08 with the court, the judge shall issue an order stating whether the amended petition                                     
09       meets the requirements of (c) of this section.                                                                    
10 (e)  A petitioner may not circulate a petition without a court order stating that                                       
11       the petition is sufficient under (c) of this section.                                                             
12 (f)  If the judge issues an order finding a petition sufficient under (c) of this                                       
13 section, the petitioner shall, not later than 45 days after the court enters the order, file                            
14 the completed petition containing not fewer than 500 signatures of voters registered in                                 
15 the judicial district with the division of elections. The division of elections shall, not                              
16 later than seven business days after receiving the petition, submit the original petition                               
17 and a certification of the number of signatures of registered voters to the clerk of court                              
18 of the judicial district of the presiding superior court judge who issued the order                                     
19 concerning the petition. The clerk shall deliver the petition and signature certification                               
20       to the presiding superior court judge.                                                                            
21 (g)  An individual who signs a petition to convene a grand jury may file a                                              
22 request to remove the individual's name from the petition at any time before the                                        
23 division of elections certifies the number of signatures on the petition under (f) of this                              
24       section.                                                                                                          
25 (h)  If the division of elections certifies that the petition contains the required                                     
26 signatures, the presiding superior court judge of the judicial district shall, not later than                           
27 30 calendar days after the date the certification is received by the clerk from the                                     
28       division of elections, convene a grand jury.                                                                      
29 (i)  An individual is guilty of a class B misdemeanor punishable under                                                  
30       AS 12.55 if the individual knowingly                                                                              
31 (1)  offers money, a gratuity, a prize, or any other thing of value to                                                  
01       induce another individual to sign or to remove a name from a petition to convene a                                
02       grand jury; or                                                                                                    
03                 (2)  makes a false statement to induce another individual to sign or to                                 
04       remove a name from a petition to convene a grand jury.                                                            
05            (j)  In this section, "knowingly" has the meaning given in AS 11.81.900.                                     
06    * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to                          
07 read:                                                                                                                   
08            DIRECT COURT RULE AMENDMENT. Rule 16(b)(3), Alaska Rules of                                                  
09       Criminal Procedure, is repealed and reenacted to read:                                                            
10 (3)  Prosecuting Attorney's Duty to Disclose Favorable Information to                                                   
11       Defense Counsel.                                                                                                  
12 (A)  Material and Information Within the Prosecuting                                                                    
13 Attorney's Possession, Custody, or Control. The prosecuting attorney shall                                              
14 disclose to defense counsel any material or information within the prosecuting                                          
15 attorney's possession or control that tends to negate the guilt of the accused as                                       
16 to the offense or would tend to reduce the accused's punishment therefor. In                                            
17 addition, within 20 days after receiving a written demand from defense                                                  
18 counsel, the prosecuting attorney shall disclose to defense counsel and make                                            
19            available for inspection and copying                                                                         
20 (i)  all information favorable to the accused that is in the                                                            
21 possession of the prosecuting attorney or a branch of law enforcement                                                   
22                 involved in the prosecution of the accused;                                                             
23 (ii)  evidence disproving the identity of the accused as                                                                
24                 the perpetrator of an offense at issue;                                                                 
25 (iii)  evidence tending to disprove an element of an                                                                    
26                 offense at issue;                                                                                       
27 (iv)  evidence constituting a prior representation of a                                                                 
28 witness account describing the events surrounding an offense at issue                                                   
29                 that varies in any degree from any other statements of the witness;                                     
30                           (v)  evidence that a witness has a prior criminal history;                                    
31 (vi)  evidence that a witness has engaged in acts that                                                                  
01 would bear on the credibility and integrity of the witness or the                                                       
02                 witness's testimony;                                                                                    
03 (vii)  evidence that would cause a reasonable person to                                                                 
04 question the veracity of a witness, including motive, bias,                                                             
05                 compensation, or information tending to devalue the testimony offered.                                  
06 (B)  Material and Information Not Within the Prosecuting                                                                
07 Attorney's Possession, Custody, or Control. If material or information                                                  
08 requested by defense counsel is not in the possession, custody, or control of the                                       
09 prosecuting attorney, the prosecuting attorney shall make a diligent, good faith                                        
10 effort to ascertain the existence of the requested material or information and                                          
11            make the material or information available for discovery where it exists.                                    
12 (C)  Continuing Duty to Disclose Favorable Information. If,                                                             
13 after complying with the requirements in (b)(3)(A) and (b)(3)(B) of this rule,                                          
14 additional material or information subject to discovery under (b)(3)(A) of this                                         
15 rule comes into the possession of the prosecuting attorney or a branch of law                                           
16 enforcement involved in the prosecution of the accused, either before or during                                         
17 trial, the prosecuting attorney shall disclose the material or information to                                           
18            defense counsel.                                                                                             
19 (D)  In Camera Review. The prosecuting attorney may request                                                             
20 an in camera review of any evidence demanded by defense counsel. After an in                                            
21 camera review of the materials provided and all parties have been afforded a                                            
22 reasonable opportunity to be heard, the court shall promptly issue a written                                            
23 order granting or denying defense counsel's access to all or part of the                                                
24 materials. In determining whether to grant or deny defense counsel's access to                                          
25 the materials, the court shall consider whether the requested review of the                                             
26 materials may reasonably be expected to cause substantial and identifiable                                              
27 harm to others that outweighs the right of the accused to access the materials,                                         
28 whether the requested review would have a detrimental effect on the action or                                           
29 proceeding, or whether all or part of the materials sought to be reviewed                                               
30 constitute personal notes and observations. The court shall reconsider an order                                         
31 denying access to all or part of the materials if the court determines at a later                                       
01 date that the basis for denying defense counsel access to the materials no                                              
02            longer exists.                                                                                               
03 (E)  Time Limit. The court may delay disclosure of material or                                                          
04 information under (b)(3)(A) of this rule until a date the court determines will                                         
05 provide a reasonable amount of time for defense counsel to review the material                                          
06 or information before trial. The date of disclosure may not be less than 30 days                                        
07 before the date set for trial absent a showing by the prosecuting attorney of                                           
08            compelling circumstances.                                                                                    
09 (F)  Noncompliance. If, at any time during the course of the                                                            
10 proceedings, it is brought to the attention of the court that the prosecuting                                           
11 attorney has failed to comply with (b)(3)(A) or (b)(3)(B) of this rule, the court                                       
12            shall                                                                                                        
13 (i)  enter findings into the record regarding the extent of                                                             
14                 and reason for the noncompliance; and                                                                   
15 (ii)  order an appropriate remedy under (b)(3)(G) of this                                                               
16                 rule.                                                                                                   
17 (G)  Remedies. In addition to sanctions imposed under (e) of                                                            
18 this rule, if the court finds that prosecuting attorney has failed to comply with                                       
19            (b)(3)(A) or (b)(3)(B) of this rule, the court may order                                                     
20                           (i)  postponement or adjournment of the proceedings;                                          
21                           (ii)  exclusion or limitation of testimony or evidence;                                       
22                           (iii)  a new trial;                                                                           
23                           (iv)  dismissal with or without prejudice; or                                                 
24 (v)  any other remedy determined appropriate by the                                                                     
25                 court.                                                                                                  
26 (H)  Totality of the Circumstances. In determining a remedy                                                             
27 under (a)(3)(G) of this rule, the court shall consider the totality of the                                              
28            circumstances, including                                                                                     
29                           (i)  the seriousness of the violation;                                                        
30                           (ii)  the effect of the violation on the proceeding;                                          
31 (iii)  whether the violation resulted from innocent error,                                                              
01                 negligence, recklessness, or knowing conduct; and                                                       
02                           (iv)  the effectiveness of alternative remedies to protect                                    
03                 the interest of the accused and the public in ensuring fair prosecutions                                
04                 and proceedings.                                                                                        
05    * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to                          
06 read:                                                                                                                   
07       CONDITIONAL EFFECT. Section 2 of this Act takes effect only if sec. 2 of this Act                                 
08 receives the two-thirds majority vote of each house required by art. IV, sec. 15, Constitution                          
09 of the State of Alaska.