Legislature(1993 - 1994)
03/31/1994 08:10 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 524 - ARREST FOR VIOLATING RELEASE CONDITIONS HB 525 - CHARACTER EVIDENCE IN CRIMINAL TRIALS HB 527 - EXTENDED PROBATION FOR CERTAIN CRIMES HB 528 - PEREMPTORY CHALLENGE OF JURORS Number 437 CHAIRMAN PORTER asked Dean Guaneli to come before the committee to explain HB 524, HB 525, HB 527, and HB 528. DEAN GUANELI, Chief, Assistant Attorney General, Legal Services Section, Department of Law, explained that the four bills are four of the six bills commonly known as the Governor's crime package for this year. He expressed appreciation to the committee for assistance in getting them heard on fairly short notice. The Governor introduced six bills, and in particular, these four were the product of many months of work by members of the Department of Law and other justice agencies. At the request of former Attorney General Charlie Cole, they were directed to come up with bills that would combat domestic violence and sexual assault, that would protect women and children, and would be simple, straight forward, direct, and narrowly focussed. In addition, they were asked to come up with bills that would have little or no cost to the criminal justice system; in other words, little or no direct fiscal impact. The bills before the committee are HB 524, HB 525, HB 527, and HB 528. Number 463 MR. GUANELI explained HB 524 would make changes in the way people can be arrested after they have been released on bail, following a charge of domestic violence. Currently, under the law, someone can beat up his wife, commit a domestic assault, be arrested; and ordinarily, a court is going to release that person from custody within a short period of time. As a condition of that person's release from custody, the person may be ordered not to contact his spouse, girlfriend, ex-wife, etc, to refrain from alcohol, to not possess any weapons, to do any variety of things that will protect the public and make sure the person gets back to court on schedule. Often in these cases, because there is so much emotion involved in them, a person does not comply with those conditions. He may come back to the woman's house in the middle of the night, pounding on the door, breaking windows, that sort of thing. That would be a violation of his conditions of release. In order for that person to be arrested, a police officer could not make an immediate arrest. The police officer would have to find a judge, present some information to the judge and get an arrest warrant, and then go and find that person, and arrest him. That adds a significant portion of delay in the process and is something we that needs to be corrected. The way HB 524 proposes to correct that is to allow police officers, upon having reasonable information that the person has violated his conditions of release in those kinds of cases, to make an immediate arrest of that person. They would not have to go before a judge and have that period of delay. This is not anything that is terribly foreign in Alaska law. There are a number of crimes that can be subject to immediate arrest, even if they are not committed in the officer's presence. In addition, you have to contrast this situation where a person has already committed a crime, already been charged with an offense and released by the judge, with a situation where a woman has gone into a civil court and gotten a domestic violence restraining order. In other words, a person is not alleged to have committed any crime, but the woman says she is afraid, and the judge says he agrees, and orders the man not to contact this woman. If that person does contact the woman, that would be, under Alaska law, another separate crime, a violation of a domestic violence restraining order. That person could be immediately arrested right there. So we have the situation where a woman who has not been assaulted, but has gone into civil court and gotten a restraining order, if that person violated that restraining order, he can be immediately arrested. However, if she has already been assaulted, and already had a black eye or a broken nose, and the person has been charged with a crime, and released on conditions of bail, and contacts her, he cannot be arrested. It is a situation where victims of domestic violence who turn to the criminal justice system, and think they are being protected, actually have somewhat less protection after an offense has occurred than someone who goes into civil court and gets a domestic violence restraining order. This bill is designed to correct that anomaly in the law. It is a fairly straight forward, and good idea that should be adopted. Number 530 CHAIRMAN PORTER announced that there were two people in Anchorage wishing to testify on some of these bills, Brant McGee and Barbara Brink. He said as the committee goes through the bills, Mr. McGee and Ms. Brink will be given the opportunity to comment on each bill. For the information of the committee, in overall laws of arrest, an officer can make an arrest for a felony if he has reasonable cause to believe that it happened and this person did it. In other words, it does not have to occur in his presence. For a misdemeanor, there are exceptions to the rule, and this would be another one, but the general laws of arrest are that you cannot make an arrest for a misdemeanor if it did not appear in your presence, without an arrest warrant from a judge. Number 541 BARBARA BRINK, Public Defender's Office, testified via teleconference from Anchorage. She stated HB 524 basically changes the procedures, so they are in essence, locking people up first, and asking questions later. She asked the committee not to adopt this, because the current system works well. In most of our major communities and many of our rural communities, we have 24 hour magistrates who can be contacted any time of the day or night. If there is an emergency situation involved, certainly the police officer would directly contact that magistrate and have the warrant issued for someone's arrest. She discussed how an alleged bail violation is handled. Ms Barbara Brink would receive a call from the District Attorney's office telling her there has been an allegation her client has violated his condition. She immediately contacts her client, and usually the third person (inaudible). The third person usually has been appointed to watch over him, and bring him to court the exact same day. At that time they are given a fair hearing over whether or not there has actually been a bail violation or not. The problem is that any of these domestic violations and any allegations of abuse between family members are now congruent for manipulation of the system, or allegations that are not exactly truly understood. Ms. Brink gave the example of a hearing in front of Judge Johnson. Judge Johnson and the District Attorney had been told that the third party, the person in charge of watching her client had called into the magistrate's office and reported a violation. The third party testified under oath that she had not called anybody. In fact, someone had (inaudible) called and made a claim that the client had violated his bail condition. Under the current system, he was allowed to a full and fair hearing. He was not locked up unjustly. Under this proposed procedure, he would have been immediately subject to arrest, would have spent the night in jail, and would not have had a full hearing before the court. He would have spent a considerable amount of time in jail, waiting to find out what the allegations were and what the evidence was. Ms. Brink said she understands the committee's concerns, but she believes that whether there are actual dangers of violence, a person does get a restraining order, and that person that is subject to immediate arrest. She said she believes this is an exception of an old procedure that protects the people involved; and the system as it works right now, appears to be working fine. Number 583 REPRESENTATIVE NORDLUND asked about a situation where somebody was falsely reported and had to spend time in jail. Is there any possibility that in a situation like that, that person could have an immediate hearing? Could you arrest them first, get them away from the person they are allegedly threatening, and get them to a hearing right away, as to not violate their freedoms? Number 591 DEAN GUANELI said he thought Ms. Brink was correct in asserting the court system is pretty good about getting hearings scheduled as quickly as possible. Whether that is at 8 a.m. in the morning, or at 1:30 p.m. in the afternoon, he was not sure. It depends on the location, but certainly within 24 hours, that person is going to get before a judge. Mr. Guaneli referred to a situation where someone calls in and falsely accuses a person of violating a condition, and said he is not certain what could be done about that, but the standards under this bill are that the police officer has reasonable grounds to believe that a person had violated conditions, and if that is an anonymous phone call, he would question whether or not that is reasonable grounds. We rely on police officers to make those kinds of judgments all the time. In other words, when they think they have reasonable grounds for believing that an offense has occurred, we allow them to make an arrest in a large number of circumstances. This does not change that. We have to rely on the good faith of police officers to exercise some discretion. CHAIRMAN PORTER asked Mr. Guaneli to discuss HB 525, relating to character evidence in criminal trials. Number 611 DEAN GUANELI referred to HB 525 and said this may be the most significant of the bills. It amends Alaska Rule of Evidence 404 in a way that allows additional evidence of a sexual offender's background to be presented to the jury in a case of sexual assault. Generally, under the Alaska's Rules of Evidence, any relevant evidence is admissable, anything that goes to prove a fact, or to disprove a fact is considered admissable. There are some exceptions, and Evidence Rule 404, Subsection B, contains a number of those exceptions. In particular, if someone has committed some crimes in the past, or committed some other "bad acts", it is generally not admissable to show that the person is a bad person; to show that the person has a propensity to commit offenses. There are some exceptions to that exception, however. I in the past, this legislature has ingrafted a number of those exceptions, for example, allow additional evidence of someone's prior offenses for child sexual abuse in a later case of child sexual abuse. That change was made in 1988. In 1991, there were additional changes made to this rule, because the legislature believed, legitimately that the courts were not interpreting the rule correctly. They were keeping out too much evidence that was, not only relevant, but important to a jury's consideration, and so additional changes of this rule were made in 1991. Mr. Guaneli said thinks that the judges, in many respects, are still not interpreting the rule correctly. So what is being proposed is a fairly narrow exception rule to 404 B that says, "If in a trial of a sexual assault, you are claiming that the victim consented, then we are going to allow the jury to hear evidence that, in the past, you have committed other acts of sexual assault." In other words, "other" either you have been convicted of sexual assault in the past, or there have been other women who have claimed you have sexually assaulted them. It used to be the case that many people would defend against charges of sexual assault by saying simply that it did not happen. Now with new techniques of forensic evidence, DNA analysis, and the like, we can prove in many instances, that it in fact it did happen, and so all of a sudden they have got to switch gears in their defense, and they say that the woman consented. Most juries would find it, not only relevant, but important to know that two or three or four times in the past, this person has been convicted of other sexual assaults, that other women had claimed that he has also sexually assaulted them. That would aid the jury in determining whether or not a consent did occur. This is a fairly narrow change. It appears on page three, lines 23 through 26. In crimes of sexual assault where the defendant says there was consent, the jury is allowed to hear evidence of prior sexual assaults by that person. Mr. GUANELI said some of the introductory material to the bill gives an example of a fairly egregious case in Anchorage, the case of Leo Hoffman. It is described on page four at the very beginning of this packet that has been provided to the committee members, of someone who is essentially a serial rapist, who had been convicted of rapes in California, came up to Alaska, continued to rape women, claimed consent, actually got acquitted in one trial, convicted of a slightly related offense, was released on bail, raped additional women, and his pattern of conduct is something the jury needs to know about in order for a jury to accurately assess a claim that the woman consented, the jury needs to know that there were previous instances of sexual assault. So this is a fairly narrow directive change to the Rules of Evidence to allow in this specific narrow evidence. Number 689 REPRESENTATIVE NORDLUND noted that in the front cover of the materials, it says "HB 525, (Minerals?) of evidence of rape victims aren't put on trial." He asked if we have a rape shield law in Alaska. MR. GUANELI said that a rape shield law does exist. REPRESENTATIVE NORDLUND indicated he does understand the intent of the bill and still needs to learn more about it. He said he doesn't see anything in this bill that prevents rape victims from being put on trial. They already cannot be put on trial under most circumstances. MR. GUANELI said in many instances, there is nothing that will prevent a defendant from cross examining a victim and through questions or through other evidence claiming that there was consent. Evidence that the victim was intoxicated, or had used drugs, or had been hitch-hiking, or, for some other reason, had consented. That, in a sense, is putting the victim on trial, but there is not really any way to get around that consistent with the confrontation clause of the constitution or the right to effective representation. He said what the does is makes the proceeding a little more fair. You learn everything that the victim did, and all of the "bad things" the victim did, all the unsavory things the victim did. On the other hand you learn an awful lot more about what the defendant has done in the past, and it allows a jury to really hear the full story, and not just half the story. REPRESENTATIVE NORDLUND said that basically puts a chilling effect on the desire of the accused to claim there was consent. MR. GUANELI said if you were going to claim that, then we are going to let in evidence of, that in the past, there have been other rapes that you have committed. Number 806 REPRESENTATIVE NORDLUND asked if it was true that there could be previous sexual assaults that would detract from the credibility of the accused, but for the particular crime for which they are accused, there could have been consent also. MR. GUANELI agreed that there is no question about that, and the way this would work is that a judge would ordinarily hold a hearing outside the presence of the jury, and would hear the evidence that the prosecution wants to present of those other rapes, and the judge would make a determination whether the facts were similar enough, whether there is enough relation to this current offense that the jury ought to hear that evidence. If the judge determines that the prior rape was 20 years ago, it involved completely separate circumstances, and that it would be more prejudicial than helpful to the jury, or it would waste time, the judge can disallow it in that particular case. If it would be helpful to the jury, the judge would allow that in. MR. GUANELI said there are lots of rules of evidence that govern information that can come in under certain circumstances, and not in others. One of the most common is that if a defendant takes the stand and testifies, and he is, in essence, putting his credibility in issue. Then the prosecution can impeach that defendant by, evidence that in the past, that person has committed crimes of dishonesty. In other words, that is a dishonest person. Prior instances of perjury, prior instances of theft, that sort of thing. That is a standards rule that has been the rule in Alaska and all of the states for a long time. You could make the same argument that puts a chilling affect on a defendant's right to testify. In essence, a trial is a search for the truth, and if the defendant is getting on the stand and putting his credibility in issue, then the jury has the right and the court has a rule that the jury has a right to hear that this person might not be the most honest person in the world. Mr. Guaneli said this is along those same lines, and this is along those same lines, it is the same kind of concept, only to the issue of consent in a rape case. It is a fairly narrow exception. Number 753 BARBARA BRINK, testifying via teleconference from Anchorage, said she are deeply concerned about this radical change in evidentiary rules, by allowing what is called the propensity evidence in order to convict someone of a crime. We are directly assessing the constitutional right to due process. This (inaudible) the criminal justice system and the Alaska system, that people charged with a crime are presumed to be innocent, and they shall be convicted only upon proof beyond reasonable doubt they committed this particular crime with which they are charged and on trial for before the jury. Normally, proving somone's propensity for his (inaudible) to commit crimes is not admissable because we only want to convict people who actually did the crime. We do not want the jury convicting someone because he has done something like it in the past, or because they think he is a bad person, or because they think he is the kind of person who might do this. We want to convince someone if he did. And for that reason, this type of evidence is not usually admitted. Innocent people can get convicted this way. Ms. Brink gave an illustration of the case of Leo Hoffman. Leo Hoffman was acquitted because there was insufficient proof that he had committed rape in this particular occasion. The (inaudible) says he was convicted of related crimes. The evidence shows that Mr. Hoffman, and the woman involved in this case, (inaudible) witness, had been consuming drugs together for a great part of the evening. Mr. Hoffman was convicted of the drug charge. Apparently the jury did not feel that she was a credible witness, and they did not believe that there was (inaudible) in this particular case. If in fact, Mr. Hoffman had a pattern of doing this kind of crime in the past, that was already admissable. If his prior convictions had been for anything like your particular charge for which he was on trial, the evidence rules already permits that type of evidence to be admissable. Clearly, whatever Mr. Hoffman's prior convictions were, they were not similar enough in this particular case to have any relevance whatsoever. That is why the evidence was not admitted. Additionally, the law is drafted very broadly. There is no limit on how old the information must be, how verified the information must be. There is no limit on how certain the information must be. Although it is promoted in the (inaudible), it would be very time consuming to have (inaudible), where people from no (inaudible) crime or certainty are going to be compelled to come in, and tell the judge what they would tell the jury, and then the judge would have to determine (inaudible). She agreed with Representative Nordlund, saying this bill does not really address that. It does not provide any additional protection for victims, and it does not provide a safeguard that will reduce the (inaudible). She believes the rules, as they stand today are a fair accommodation, and help us ensure that only the guilty are convicted. CHAIRMAN PORTER asked if Cindy Smith wished to testify. Number 806 CINDY SMITH, Executive Director, Network on Domestic Violence and Sexual Assault, described the network as a statewide coalition of nonprofit programs that serve victims and their families. She said she wanted to make a very short comment on the bill that was heard prior. The origin of HB 524 was from a conference on the National Council of juvenile family court judges last year that the network attended along with a number of judges. This specific issue about violations of conditions and release was brought up by the judges as a pressing problem that they would like to have seen solved. She said they obviously disagree with the public defender about the speed and ease with which a person can be charged and held on a violation of bail conditions. A bench warrant process is not a quick process, particularly in a domestic violence situation which is very volatile, and where people come back. It is ironic, if someone is arrested, there is less protection for the victim currently, that there is under civil law. Not all victims get restraining orders. They think if you get somebody arrested, that ought to cover the situation, and there are officers that are literally unable to respond right now. They very much support that bill, and she repeated that the origin of it was actually a request from judges about something that would help make the process consistent in domestic violence. MS. SMITH referred to the change in the Rules of Evidence, she would not try to speak to the paper that the Department of Law wrote in terms of what it says. She said the consent defense has become increasingly common, as Mr. Guaneli said, as they have gotten more sophisticated in collected physical evidence through rape exams, and through genetic testing and things like that. Defendants are more likely to use consent, both because of that and because it presents a specific means of a piercing rape shield. This idea we have that we solve the problem of not putting victims' backgrounds at issue with trial by passing the rape shield law is only partially correct. It certainly has prevented the most egregious cases of going back years and years or bringing in completely outrageous information, but still and routinely, defense attorneys particularly in the claiming of consent, are able to go back into the victims' background, put her in the position of being the defendant, put her behavior at issue, as if consent had nothing to do with a two party action. What is being said in the bill, is that when you claim consent, you are talking both about the victim's behavior, and about your own. You are, in fact, putting your own behavior at issue, and under those circumstances, it is appropriate to talk about your past behavior. The claim of consent in fact, puts victim's backgrounds and immediate actions at issue. We feel it should be at least the same burden on the defendant. Ms. Smith said her organization supports the bill and urges the committees support. She pointed out that it is not exactly a radical change in the law. A similar change was made in children's cases in 1988, so judges do keep a very tight reign on what goes into court in terms of potentially prejudicial information. They will still be doing that weighing test. But it gives victims at least a chance, in cases of serial rape, to be able to talk about not just what they did that night, or the preceding three weeks, or the last month, but also what the defendant has been doing. She stated the network does support the bill. Number 862 The next person to testify was Jayne Andreen. JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, expressed the council's support of all four of these bills, but particularly HB 524 and 525. She indicated she would like to add a few comments regarding HB 524. The example that the Public Defender provides of the false allegations is something that it seems like in domestic violence cases, and sexual assault cases, there is a lot more concern on the public's perception about false allegations, but the reality, as studies show, it is the same as other crimes, it is two percent. One of the problems from the victim's standpoint that HB 524 is trying to address is these violations take place and the problem times are from 11:00 p.m. to 4:00 a.m. Judges and magistrates do not want to be woken up at that time, come down to the court and do a standard type of procedure. Quite often they end up waiting until the morning, and in the meantime, what the victim has to do if she wants to feel safe, is pack herself up and pack the kids up, and go someplace else, go to a friend's, go to a shelter, go to a safe home. This bill addresses that so there can be an immediate arrest if the law enforcement officer feels like there is just cause for that, then he can be arraigned; it can be looked at the next morning or afternoon. JAYNE ANDREEN referred to HB 525, "Character Evidence," and said she believes there is a public perception that even though we hear the statement, "Rape is not a crime of sex. It is a crime of violence where sex is used to have power and control over someone." Even though we hear those words, and we understand it, when it gets right down to it, people think of it as sex. It is referred to as a sex crime. It is not a sex crime, it is a violent crime. So when it goes to court, if there is a consent defense, the victim is the one who has to answer to why she was drinking, why she was in that place, why she was there. Ms. Andreen said she doesn't have hard statistics on this, but she has been looking at statistics for Alaska, and she estimates that of all sexual assaults that occur, the conviction rate is probably between three and five percent in this state. TAPE 94-55, SIDE B Number 001 JAYNE ANDREEN (continued) Anything we can do that balances out that system that lets victims take advantage of the system and feel like they are being heard without having to be on trial themselves. It will help end these types of crimes. Number 015 REPRESENTATIVE NORDLUND said in child sexual assault situations there is an established pattern where you could basically convict the individual based on a series of assaults. Is that the loophole that when you're getting rid of language here to show a common scheme or plan? Is that the law that you are trying to get rid of the loophole in? Number 034 MR. GUANELI said that is a limitation on the current rule governing admissability in child sexual abuse cases. It was felt that was too restrictive, only to show a common scheme or plan, and that there are other reasons why evidence ought to be admissable, and some of them are shown on lines ten to twelve, "motive, opportunity, intent," etc. We felt that limiting language was too tight and ought to be deleted. Number 040 REPRESENTATIVE NORDLUND referred to the words that are being deleted in terms of the time, "not too remote in time", and asked how has that been interpreted by the courts so far? He asked if ten years reasonable? Number 063 MR. GUANELI said he thought the problem was that it is unclear how that ought to be interpreted, there were varying interpretations and it was felt that putting in a set time frame was more appropriate than leaving it quite so open ended as that. Number 073 MR. GUANELI then discussed HB 527 which extends probation for certain crimes. He said the bill extends the probation for certain crimes extends probation for sex offenders from five to ten years. Under current Alaska law, a person can only be put on probation for five years, and that is based partially on experience which has shown that after two or three years, if you have not had your probation revoked then you are pretty much going to succeed in your probation, and that certainly five years would be outside. If you are going to violate probation, it is usually going to happen in the first couple or three years. That is true for most offenses. The one exception is sex offenses. Particularly child sex offenses occur over a long period of time. There is a long period of activity that might not appear to be criminal activity; it is grooming activity, and offenders kind of work their way into that particular criminal conduct over a long, long period of time. It takes a long period of time to establish a certain relationship with a child, a relationship of trust that will allow them to commit those offenses. In addition, sex offenders, unlike a lot of offenders, really can control their conduct. They can be deterred, and one of the primary ways of deterring someone is by having them on probation. In other words by having them know that during this period of time if they violate their probation, they can be put back in jail. It was felt that as a result of the notion that sex offenses occur over a long period of time, and they can be deterred, that extending the allowable range of probation from five to ten years does a couple of things. First, if the initial victims were very young, putting a person on probation for ten years allows them to grow up during a period of time when that person is supervised and is still under the authority of the court. Because they can be deterred, it makes it less likely that they will commit further offenses for the period that they are on probation. They know that there is this hammer hanging over their head. If they violate their probation they can be put back in jail. MR. GUANELI said that for whatever reason, the treatment of sex offenders is an "iffy" thing. He sat on the Sentencing Commission for two and a half years. The testimony we heard is that rehabilitation is not very effective for sex offenses. The programs we have, although it is laudable, there is not a real high success rate, and so we have people who usually serve three to four years in prison, they are released, and they are back into society and they can be grooming children again in fairly short order. There is a need in certain cases, and this does not require that this long of a probation period be imposed, but there is a need for a longer period of probation. The way that the bill is designed to not impact Corrections significantly is that there is a provision in the bill that says if a person goes for a period of five years without committing a violation of probation, that instead of having active probation, where they go in once a month to see a probation officer, it becomes unsupervised probation. In other words, they can perhaps submit a monthly report to the probation officer, it does not have to take up a probation officer's time. In other words, there is no specific fiscal impact on the Department of Corrections, yet there is still that hammer hanging over the person's head if a violation of conditions occur, there can be a probation revocation petition filed, and the person will come back before the courts. As far as the sex offender is concerned, there is still this hammer hanging over them. As far as the Department of Corrections is concerned, they do not have to have another person on their active caseload for probation. It was designed to work that way so there would be a minimal impact on the Department in terms of their budget. Number 181 REPRESENTATIVE NORDLUND noted that there was nobody from Corrections present. The fiscal note from Corrections would suggest that there is not a problem or a need for the bill, because it is zero. He said he would think that if there were some situations in which somebody would violate the conditions of their probation, and be thrown back in jail, that there would be some fiscal impact. Number 193 MR. GUANELI suggested that probably for every sex offender who is put back in jail because their probation has been extended, we may have deterred another sex offender, who, if this bill had not been in effect, would have been off probation and charged with a new offense. CHAIRMAN PORTER said if a sex offender is out and violates probation, it is probably because they caught him very close to committing another offense. Having put him away for the violation as opposed to the offense, saved the trial, it saved impact on Corrections, the courts, the police, and everybody else. Number 220 REPRESENTATIVE NORDLUND said that could be so, but it would be nice to see that in the fiscal note. He said the bill is a good bill, but noted he is concerned about the number of crime bills that have been passed this year and the fiscal impacts are really adding up. He said in the House budget, there is $5 million for all new legislation. Representative referred to the comments of the Chief Justice to the Joint Session the other day, and said it is one thing to pass all the bills, but it is another thing to actually put the machinery in place; to enforce and prosecute, and provide correctional space for the new offenders. Representative Nordlund said he is becoming more and more concerned about the fiscal impacts of the legislation. Number 233 REPRESENTATIVE JAMES had a comment regarding new bills and fiscal notes. She asked which comes first, the chicken or the egg? She said would like to spend some time going through Alaska's laws and taking off the laws that are on the books that have fiscal impacts and are not being funded. If there are good bills on the books, they probably would be funded. She indicated that she thinks that the good laws should be passed. Number 246 CHAIRMAN PORTER responded to that the issue is a legitimate issue. He said there have been several bills that have come through the Judiciary Committee which have not had negative fiscal notes, that have certainly been of assistance to the Department of Law and the Court System which have impacted their case load positively. He referred to those who are in the agencies trying to do their jobs and said what the legislature is providing is the tools to do their jobs. He said the legislation perhaps helps in deterring people from actually committing these crimes. The impact of that is going to be a reduction of problems for these agencies. He said we don't take money away from them because we have positively affected them. Chairman Porter said he doesn't think that there is an automatic reduction of ability when new laws are passed, because the legislature don't appropriate $1 million to go with it. There is an enhancement of ability these agencies do what they can with what they have. Number 284 REPRESENTATIVE NORDLUND said his concern is the impression that the public will have that by passing these laws, Alaska is going to be a safer place to live. In some cases, it will be, but if the legislature doesn't provide the funding to the agencies to enforce the laws, it is a bit of a sham. No single individual is responsible for this, but before the session is over, he hopes the majorities of both bodies would sit down and figure out what to do. The agencies will probably end up figuring out which of these laws they are really going to be able to enforce, and in some case, the protection the public feels they are going to get from these just will not happen because the funding won't be provided to them. Number 303 CHAIRMAN PORTER indicated he was a member of the budget committees for the Court System, Public Safety, and the Department of Law, and said those agencies fared better than others. He indicated the Court System had a $17 thousand one time only last year expenditure, and if it was not for that, they would be funded at the same level as last year. He said he doesn't think there is anybody else who is getting that treatment. Number 316 REPRESENTATIVE JAMES referred to fiscal notes and said she has been extremely distressed about the way the fiscal notes are calculated. A department or an agency can be directed to the most effective use of those funds. REPRESENTATIVE JAMES said when you add more and more things for people to do, there is going to be some kind of a fiscal impact, but a lot of it just falls in the cracks and a lot of it gets done with the same amount of money. To say that because the fiscal notes are so large that the legislature should not consider passing legislation, is a weak excuse. It is valid to the public. Number 341 CINDY SMITH said she spoke with the Department of Corrections about their fiscal note, and the reason it is a zero note is because there currently have a five year period of probation. So within the time frame of the fiscal note, if the bill is passed tomorrow, it will not affect them within the time frame they are required to report, to begin with. Secondly, they view it as a tool as prisoners are, in fact, being furloughed, and out on parole. The pressure within the correction system increases, as a tool, they can use to continue to monitor. She said her impression is they are in support of the idea, but the actual answer to the fiscal note question is within five years, it is a standard period of probation, so it does not have an impact that they would find reportable within the context of a fiscal note. Number 360 REPRESENTATIVE NORDLUND noted that on the fiscal note, it says because the extended period of probation is unsupervised, no fiscal impact is expected. I would suggest because of this bill, there is a need for this bill in that some cases there will be supervised probation over the five year period, so that is a good rationale, but they ought to change what it says on the note. CHAIRMAN PORTER asked Mr. Guaneli to discuss HB 528, Preemptory challenge of jurors. Number 366 MR. GUANELI said HB 528 would correct an anomalous situation where in not only in sexual assault trials, but in all felony trials, the defense has an opportunity to exercise a lot more control over who sits on the jury than the prosecution does. In jury selection, there are certain rules of the court that are spelled out in some detail that will excuse jurors for certain specific reasons. They have heard too much about the case and they cannot be fair, or they have a certain criminal record. He said there is a whole list of reasons why you exclude jurors. They call them challenges for cause, there are reasons for cause that you excuse a juror. Mr. Guaneli said then each side in the case has an opportunity to also excuse specific jurors for whatever reason they want. There are rules that you cannot exclude people on the basis of race, etc., but for other reasons, you do not have to give reasons, you'd just say you would like juror number three excused. He referred to defendants and said they may want to excuse all the people who have been victims of crime in the last five years. Through questioning, you find out about those and you ask that those people be excused. They will say that they can be fair jurors, and they probably can, but defense might not want to run that risk. MR. GUANELI said from the prosecution standpoint, he might not want someone whose brother had been previously convicted in the last year of something, just because we may not want to run the risk of that person not being completely fair. In exercising those challenges, preemptory challenges, the defense in a felony case gets to do that ten times, to excuse ten people. The prosecution only gets six of those challenges or can only excuse six people. That difference allows the defense, in a large number of cases, to have much more say over the twelve people who are going to be deciding that case. What is kind of strange is that in misdemeanor cases, both sides have an equal number of those challenges. They each have three. In felony cases, the defense has ten and the prosecution has six, and this bill proposes to equalize that number of challenges, and to speed up the jury's selection process. The proposal is to equalize them where each side has six. This rule came from the federal court rules. In territorial days, Alaska was under the federal court system, and when the change-over came, the Alaska Supreme Court just adopted the federal rules of procedure. In the federal rules for misdemeanor cases, each side has three challenges. Mr. Guaneli referred to death penalty cases in the federal system and said each side has an equal number of challenges, they each get 20 challenges. But for felony cases, for some reason, the defense gets ten and the prosecution gets six. We propose to equalize that at six each. In the Senate State Affairs Committee there was some discussion as to whether it should be six each, or eight each. In Senate Judiciary Committee Ms. Brink, testifying for the Public Defender Agency, indicated she did not have a problem with it being equal as long as each side got ten. Mr. Guaneli said he would not have a problem with that. The equalization has been recommended by the American Bar Association, and the proposal makes a lot of sense and makes the process a lot more fair. That is the proposal. The number is for you to decide. BRANT MCGEE, Director, Office of Public Advocacy, testified via teleconference from Anchorage. He said they are opposed to this HB 528 for a number of reasons. He said they believe it is based on two false premises. One is that there is an uneven playing field now. The second is that this proposal will save time, and therefore money. Both are untrue. This proposal was examined by the Criminal Rules Committee in 1986. He noted the committee is composed of defense attorneys, prosecutors, and judges. The proposal was unanimously rejected in 1986. Their rationale for such rejection is the change in a letter from the chairman of that committee. Further, the memorandum from Judge (Mihalsky?). (inaudible) who also argued for the retention of the current rule. It is a rule that served the federal system for many decades and it served Alaska well since statehood. MR. MCGEE noted the reason the defense has more preemptory challenges is plain and clear to anybody who watches jury selection in a felony trial. That is that many more jurors are more prosecution oriented than they are defense oriented. And if you only have to look at your own reaction to public comments regarding crime, you will know this is true. It is certainly this legislatures perception that more people are interested in harsher and more comprehensive prosecution of wrong doers. Then there are people who think there ought not to be such efforts made. Mr. McGee said that is reflected in jury panels and it always has been. Frankly, the presumption of innocence is an artificial contract that we ask jurors to keep in mind throughout the course of the trial. But the presumption of innocence certainly does not apply and is not used by jurors when they first walk into the court room. Mr. McGee said in his 16 year career and more than 50 jury trials, He has never heard a prosecutor or judge complain about the numbers of preemptory challenges and the reason is the defense needs more preemptory challenges in order to assure a fair panel. Mr. McGee said he would prefer to see more preemptory challenges for the prosecution. He noted he does not object to making it ten and ten, because current practice is that typically, defense attorneys exercise about twice as many preemptory challenges as prosecutors. The reason is they do not have to, because members of the panel are generally far more acceptable to the prosecution than they are to the defense. Number 514 BARBARA BRINK said she would like to emphasize on the time and cost saving measures. She referred to the two preemptory challenges exercised in the courts in selecting a jury and said it goes by very quickly. The parties have already had an opportunity to talk to the jurors about their own individual life experiences, to analyze how they are going to affect their ability to sit on a particular case. Every one of us probably has a type of case that we should not be a juror on. Ms. Brink said Judge Mihalsky, when he wrote the letter to the Rules Committee editing their change in the current practice, also pointed out another important area, and that is the perception of fairness. The preemptory challenge is a small price to pay in order to provide some assurance to the defendant that he is getting a fair, impartial jury. REPRESENTATIVE NORDLUND asked Mr. Guaneli to explain what we are really trying to fix here. It seems that as long as we are going to give the benefit of the doubt to the accused, and taking into consideration that you are innocent until proven guilty, why not let the defense have more challenges than the prosecution? Number 583 MR. GUANELI said it is simply a matter of fairness. If perspective jurors come into the court believing that there is some reason why they are there, he doesn't see anything wrong with that. In a felony case there has to be a Grand Jury that has already determined that there is sufficient evidence to bring this case to trial. They know that they are going to hear some evidence. That doesn't mean that they are biased towards the prosecution, but they know there is a reason why they are there. Mr. Guaneli said the defense has the presumption of innocence but the prosecution has the burden of proof. The system is designed to be fairly equally weighted. He said currently the process is set up to be fairly evenly matched, but in the selection of the jury, it's not. Evening up the ability to select the jury is fair and makes the system work better. Number 603 DANIELLA LOPER, Committee Aid, House Judiciary Committee, asked if they would like to talk about whether this will bring Alaska up to national standards. She asked what the national standard is. Number 614 MR. GUANELI said the American Bar Association standard is that the number of preemptory challenges be equal. He did not think they set a specific number. They allow that for every state, but that there be a quality for the jury process. There was a study some years ago, and most other states are equal. He thought there were some exceptions in death penalty cases where some states allow the defense additional challenges in death penalty cases. Number 618 REPRESENTATIVE NORDLUND suggested in the interest of compromise, he would like to move a conceptual amendment. Number 628 CHAIRMAN PORTER said they would have to wait for the other two members to return. He announced the committee would stand at ease to await the return of the members. CHAIRMAN PORTER called the committee back to order. Number 637 REPRESENTATIVE GREEN asked if the number of preemptories was reflective of the number of defendants. Number 650 MR. GUANELI said there is a provision in the court rule for a judge to allow a defendant additional challenges if fairness requires that. If there are a large number of defendants or if the case has gotten a lot of publicity, but not enough to move it to another place, additional challenges are frequently granted. That becomes a discretionary matter for the judge. Number 657 CHAIRMAN PORTER asked if that provision applied to both sides or to just the defendant. MR. GUANELI said it is possible for the prosecution to get additional challenges, as well as the defendant. Number 658 REPRESENTATIVE NORDLUND suggested that they change the balance to eight and eight. The amendment would occur on page 1, line 9, change "6" to "8." First, it would level the playing field like the American Bar Association suggests. It does reduce by two, the amount of challenges allowed to the defense, but not by four as suggested in the bill which is probably going a too far. The overall number of challenges remains the same. He moved the amendment. There being no objection, the amendment passed. Number 681 REPRESENTATIVE JAMES made a motion to pass HB 528 out of committee with individual recommendations and the attached fiscal notes. Hearing no objection, the motion passed. Number 691 CHAIRMAN PORTER said he would like a motion on HB 527. REPRESENTATIVE KOTT moved that HB 527 be passed out of the House Judiciary Committee with individual recommendations and zero fiscal notes. CHAIRMAN PORTER objected. He said he objected as he would like an executive summary of the bill. Number 696 MR. GUANELI said HB 527 extends the maximum period of probation from five years to ten years, for sexual offenders. The reason is that sexual offenders often do not start re-offending for more than five years after they have been caught because they can be deterred for an additional length of time, and because having them on probation for an additional period of ten years, particularly if the victims were very young children, allows the victims to grow up during the period of time when the offender is on probation, and gives them some additional protection. It is designed not to have impact on the Department of Corrections by a provision which says that if they go for five years without having their probation revoked, any remaining period of probation is essentially unsupervised. They don't have to see a probation officer. A probation officer does not have to carry them on their case loads, but there is still the possibility of the probation being revoked and going back to jail during that additional period of time. Sex offenders are one class of offenders that can be deterred by having something hanging over their head, as distinct from other types of offenders if they are alcohol or drug related sometimes no matter what you do, there is not much deterrent, but sex offenders can be deterred, and for that additional period of five to ten years it is appropriate to deter them. Number 721 REPRESENTATIVE GREEN asked if it would be advantageous on line nine of page one to make that "may?" If somebody does carry over just a little bit, maybe one more year, in the sixth or so, maybe then letting go? Or does that somehow defeat the purpose? Number 732 MR. GUANELI said Corrections felt comfortable with this because they wanted to say there would be no fiscal impact, and having "may" in there would probably require a judge having to make the decision. You would probably have to file another piece of paper and have another hearing. He said he thinks it was felt that if you have gone five years and not done anything, then you really do not need to see a probation officer face to face. A lot of these sex offenders are just regular people who hold down jobs and are employable. It is not as if they have to be urged to go out and find employment, and that sort of thing. Number 746 REPRESENTATIVE GREEN said it was Mr. Guaneli's word "probably" that makes him wonder. MR. GUANELI said that was a good point, but basically, Corrections felt comfortable with this, and based on that, that is what he would urge the committee to stay with. CHAIRMAN PORTER said he thought there is a balancing between fiscal responsibility and accomplishment with this particular category of people. He said he feels the risk to be minimal. REPRESENTATIVE GREEN said he was not trying to delay things, but it is his concern that it's felt to be imperative that they still do it at 4.8 years, and this guy is still a threat, but at 5.1, suddenly he is okay. Representative Green suggested there may be a period that 5 is a reasonable number to look at, but maybe after 2, this guy is okay again, but this guy continues to do that, and that is alright. He said he feels uncomfortable about letting these people go. CHAIRMAN PORTER said he thinks Representative Green's analogy assumes that there is full probation supervision for those 5 years, and in most cases, that is not the case. REPRESENTATIVE GREEN said he understands that, but his point is that on those infrequent occasions, he would rather error the other way even if it costs a little more. If this happens infrequently, then it should be a zero fiscal note. Number 765 REPRESENTATIVE JAMES agreed with Representative Green. Number 789 MR. GUANELI noted that there is currently another law in Title 33 stating that a probation officer can go to a judge at any time and say "this person is really doing well. There is no further need for supervision." He said that is something a probation officer can currently do. Mr. Guaneli said they don't do that without a judge's authority. A petition has to be filed with the judge and a hearing would be held. He said in terms of state liability, probation officers are not going to make this decision on their own. Number 823 REPRESENTATIVE GREEN still maintained concerns over this supervisory period. Number 840 REPRESENTATIVE JAMES asked how many people are still having supervised probation at the end of the five years. MR. GUANELI answered Representative James' question saying that the majority of people do not still have probationary supervision after the five year period. Number 843 REPRESENTATIVE GREEN proposed the amendment that "shall" be changed to "may." CHAIRMAN PORTER announced the amendment is on page one, line nine, called Amendment #1. Chairman Porter then objected to the proposed amendment. A roll call vote was taken Representatives Porter, James, and Kott voted "no." Representative Green voted "yes." Representative Nordlund passed on voting. So the amendment failed. MR. GUANELI gave the executive summary on HB 525. He said the bill amends the Alaska Rules of Evidence to permit, in sexual assault cases, when a defendant raises the defense that the victim has consented, and knows narrow circumstances, the prosecution is allowed to permit evidence of that defendant's prior convictions or acts of sexual assault, or attempted sexual assault. The basis for the legislation is that, in many cases, particularly with serial rapists, the jury never hears that this person has a long history of sexual assaults and the person is allowed to claim that the victim consented, where as if the jury had heard that there had been a series of sexual assaults in the past, the jury might have a very different view of whether or not there was consent or lack of consent on this particular occasion. That is a primary basis of the legislation. It is a very narrow focus directed exception to a rule in Alaska and elsewhere that prior crimes are not allowed into evidence. It essentially says that when a victim is put on the stand and is questioned about everything that went on that night, drug use, alcohol use, hitch-hiking, whatever, that the defendant's past is also relevant as to how many other women he has sexually assaulted or how many he has attempted to assault. Number 888 REPRESENTATIVE KOTT made motion to move HB 527 out of the House Judiciary Committee, with individual recommendations, and the attached zero fiscal note. There being no objection, the motion carried. TAPE 94-56, SIDE A Number 001 CHAIRMAN PORTER announced The victims in sexual assault cases, by virtue of allowing evidence of previous sexual assaults by the defendant to be admitted if there is a claim that the act was not a violent act, but was a consensual act. He asked if there was discussion. Number 022 REPRESENTATIVE NORDLUND said he would have a problem with this bill, except for the fact that he has been informed by Mr. Guaneli that there are rules of evidence that would allow the judge to dismiss those situations that were unrelated. If the person asserts that there has been a consent, and that there might have been previous crimes committed, are two unrelated things, and to relate them here might be improper in some cases, and most judges would find that if there is no relationship, that would not be admissable. Number 043 REPRESENTATIVE GREEN moved the HB 525 be passed out of the House Judiciary Committee, with a zero fiscal note, and individual recommendations. Hearing no objection, the motion carried. Number 055 CHAIRMAN PORTER announced HB 524 was before the committee. MR. GUANELI explained that HB 524 would allow when someone who has been arrested and charged with an offense involving domestic violence, and is released from custody under conditions of bail, if that person violates those conditions, there currently is a long period of delay where a police officer has to go before a judge, explain what happened, get an arrest warrant, and go out and find that person. This period of delay in these kinds of very emotional, highly explosive relationships is dangerous, and there ought to be an immediate arrest made when a defendant violates a condition of release. Usually the primary condition is you do not contact your ex-wife. It would also make this situation comparable to the situation that currently exists that when a woman goes into civil court, gets a domestic violence restraining order, even though the person has committed no crime, if she is just fearful of the person or believes that he might commit a crime, a judge will issue a restraining order. If there is any violation of that, the person can be immediately arrested. It is an anomaly that people who have committed crimes and women who have gone to the criminal justice system for protection actually have less protection when the ex-spouse comes banging on their door in the middle of the night. This just equalizes the situation and the protection given in those circumstances. Number 104 REPRESENTATIVE JAMES made a motion to move HB 524 out of the House Judiciary Committee with individual recommendations, and zero fiscal notes. Number 108 REPRESENTATIVE NORDLUND objected for the purpose of proposing an amendment. The intent of the amendment is to make sure that individuals who are arrested under the provisions of this new law would be able to have an immediate hearing in the court. Representative Nordlund referred to the issues raised by the public defender and said there could be situations where people are innocent, and they need to be brought in front of a court immediately to determine whether or not they were properly arrested. It would change the law to say you would have the arrest first, and then have the hearing; instead of having the hearing first, and then the arrest. This would be an improvement, but would still provide some protection for innocent people. Number 132 REPRESENTATIVE PORTER indicated he was against the amendment. As he had explained, what this bill does is make one additional exception to the basic laws of arrest in this state, which are that an officer may make an arrest without a warrant on a felony crime if he knows the crime was committed and has reasonable cause to believe that the person he intends to arrest committed it. That is to say, he does not have to appear in his presence. If he has investigated and found the suspect with those elements present, he can make the arrest. The general rule for misdemeanor is that rule does not apply. To make an arrest without a warrant, you have to have seen the offense occur. There are exceptions to that. Representative Porter said the bill asks the legislature to consider one other exception to that rule. The said the rationale is that in domestic violence situations, it is a condition of release anyway. Some of the other exceptions are in a domestic violence case, an officer who did not see the assault, can come onto the scene and if he can build probable cause that there was an assault, he can make an arrest, thus freeing up the victim from having to make that citizens arrest, which nine times out of time they do not desire to do. There are other exceptions to this rule, but by making an immediate hearing, in Anchorage, for example, that would not really constitute a great problem, because in Anchorage, as perhaps in Fairbanks, an arrested person is taken immediately to a magistrate before they even go to jail. But if this were Bethel, that would not happen. The judge would have to be awakened if he was there. We would be asking something to happen that could not happen, and, if I understand the effect of the amendment, it would negate the ability to make that arrest. Number 194 REPRESENTATIVE NORDLUND clarified he was not meaning to negate the ability to make the arrest. He said in a situation like Bethel, immediate is somewhat relative, and who is to say how immediate, immediate is, but it would be an imposition placed within the law that would basically mean as soon as possible. If it is impossible in a town like Bethel to have the hearing an hour afterwards, maybe it would have to be the next morning, but it would not be two days later. Number 205 CHAIRMAN PORTER stated that there is currently a requirement that anyone who is arrested has to go to an arraignment within 24 hours, so they wouldn't be thrown into jail for a week. REPRESENTATIVE NORDLUND said he did not see any reason why, in a city like Anchorage, you should not have an immediate hearing, and not keep a person in overnight. CHAIRMAN PORTER said that they will do that in Anchorage. That does not need to be written into the law. The first place an arrested person goes is to a magistrate. Number 224 REPRESENTATIVE NORDLUND requested that the amendment be held over until he has a chance to draft it and bring it up at the next hearing. MS. LOPER noted that the bill goes to the Finance Committee as there is a fiscal note from the Department of Corrections for $11 thousand. Number 262 CHAIRMAN PORTER said the committee would send a letter of intent to Finance, asking them to consider Representative Nordlund's amendment. Number 288 REPRESENTATIVE JAMES noted that Representative Nordlund may stand a better chance of getting his amendment passed in the Finance Committee. She then moved that HB 524 be passed out of the House Judiciary with individual recommendations, and the attached fiscal note. Hearing no objection, the HB 524 was passed out of committee with individual recommendations.
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