Legislature(1995 - 1996)

01/25/1995 01:05 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HJUD - 1/25/95                                                                
                                                                               
 HB 26 - DEPOSITIONS IN CRIMINAL CASES                                       
                                                                               
 CHAIRMAN PORTER then announced HB 26 would be the next bill before            
 the committee.                                                                
                                                                               
 REPRESENTATIVE VEZEY left early.                                              
                                                                               
 Number 725                                                                    
                                                                               
 REPRESENTATIVE TOOHEY asked if she could make a motion to make                
 Version C the committee's work draft.                                         
                                                                               
 Number 730                                                                    
                                                                               
 CHAIRMAN PORTER asked if there was objection.  Hearing none, the              
 committee substitute was adopted.                                             
                                                                               
                                                                               
 REPRESENTATIVE PARNELL, sponsor of the bill, came before the                  
 committee.  He said under the current rule 15, the court can order            
 depositions in a criminal case upon good cause being shown.  That             
 is a weak standard and permits the taking of numerous depositions             
 in cases where the victim can be subjected to harassment of the               
 defense.  It is ripe for abuse, at that point.  He read part of a             
 speech by Ed McNally to sum up his reason for proposing the bill:             
 The Alaska Rule 15 is far more liberal (referring to the federal              
 rule 15), permitting a deposition of any victim or witness whenever           
 good cause is shown.  In the practice of the criminal courts in               
 Alaska, Alaska Criminal Rule 15 has become a tool of aggressive               
 harassment of witnesses, victims, and especially rape victims in              
 criminal cases.  The Victims Rights Act says that in advance of               
 trial, rape victims do not have to talk to the lawyer for the man             
 who raped them.  Within Alaska, Criminal Rule 15 is routinely used            
 by defense counsel to obtain a court order requiring rape victims             
 to submit to a grueling and formal deposition with them.  Under the           
 Federal Rule 15, it says that depositions can be taken only under             
 exceptional circumstances, rather than "good cause shown"                     
 standards.  His first draft of the bill was strictly the federal              
 rule.  After discussions with the Department of Law, he backed off            
 from that and submitted the committee substitute, Version C, which            
 provides a standard very similar to the federal rule with respect             
 to this special circumstances test.  In the first portion, it says            
 that the deposition of a prospective witness may be taken by either           
 party upon notice as provided in B of this rule; if the court finds           
 by clear and convincing evidence that, one, the witness will not be           
 present to testify at trial, or two, due to exceptional                       
 circumstances, the deposition is necessary to prevent a failure of            
 justice.  Essentially, what we are doing at the Department of Law's           
 suggestion, is changing a portion of the Alaska rule.  We are not             
 throwing out the entire rule and all the cases that have come in              
 under the rule.  We are just changing the standard under which                
 depositions can be taken.                                                     
                                                                               
 REPRESENTATIVE PARNELL went on to say that on page 2 of the work              
 draft, Section 2 changes the rule so that courts will preside over            
 depositions as well.  This is done to give them some measure of               
 control over the proceedings.  In short, changing the wording of              
 the Alaska rule to be parallel to the federal rule, is a warranted            
 change, given the current use of depositions and abuse of                     
 depositions.  He urged the committee's support of HB 26.                      
                                                                               
 Number 790                                                                    
                                                                               
 CHAIRMAN PORTER asked if there were questions of the sponsor.                 
 Hearing none, he then requested Mr. Guaneli to come forward to                
 testify.                                                                      
                                                                               
 Number 795                                                                    
                                                                               
 MR. GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,                   
 DEPARTMENT OF LAW, stated that often times in a criminal case, a              
 rape victim has given a statement to doctors at the hospital, has             
 given a statement to the police which is recorded and transcribed,            
 has given a statement to the Grand Jury, which is recorded and                
 transcribed, and all that information goes to the defense.  Many              
 times, if the defense can in some way find out the victim is not              
 going to cooperate, or does not want to testify, the case may                 
 simply go away.  Mr. Guaneli made it clear that he was not                    
 suggesting that defense attorneys ask for depositions to                      
 intentionally intimidate victims, but that is the effect of it.               
 Getting in a small enclosed room, sitting across from the man who             
 raped you is a terrifying experience.  There is no judge present,             
 there is just a court reporter who has another tape recorder going,           
 and that statement is then recorded and transcribed.  Throughout              
 each of these statements, subtle details of the defense may change.           
 Every time there is an additional statement taken, it is additional           
 evidence that can be used against the victim as cross examination             
 material.                                                                     
                                                                               
 MR. GUANELI went on to say that in criminal cases, unlike civil               
 cases, the defense already gets a large amount of material to know            
 about the prosecution's case.  For that reason, historically,                 
 depositions have not occurred in criminal cases.  Unfortunately,              
 some judges in Alaska, not all of them by any means, but some, have           
 been very loose about allowing depositions in criminal cases,                 
 particularly in rape cases.  This bill is intended to clamp down on           
 that practice.  If there is a good reason why a deposition ought to           
 be taken, if the witness is dying or is going to be leaving the               
 state, or if there are exceptional circumstances, but for it to be            
 a routine practice seems inappropriate.                                       
                                                                               
 MR. GUANELI said the other change occurs on page 2, Section 2.                
 This bill says that if a judge is going to order a deposition, let            
 the judge preside over that deposition.  It should be done in a               
 courtroom, in a closed proceeding with a measure of decorum, so the           
 judge can protect that witness against an aggressive cross                    
 examination.  In a criminal case, the prosecutor is not really the            
 victim's lawyer.  Victims often do not have the money to go out and           
 hire a lawyer to protect them.  In a normal deposition, the other             
 attorney can raise legal objections, but the witness has to answer            
 the questions.  It is a good and helpful procedure to have the                
 judge preside over that, in the rare circumstance that it should be           
 necessary.                                                                    
                                                                               
 Number 843                                                                    
                                                                               
 REPRESENTATIVE BUNDE asked if we would end up with a bottleneck,              
 just because we do not have enough courtrooms available.                      
                                                                               
 Number 845                                                                    
                                                                               
 MR. GUANELI said it depends on how many of these are ordered by the           
 judges, but he thought this should be a rare occurrence.  It does             
 not take up a lot of court time.  It may advance the course of                
 litigation, rather than delaying things.                                      
                                                                               
 Number 849                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN was not clear on the necessity of this             
 kind of approach.  The impression he had from talking with defense            
 attorneys is that these depositions are not granted often in the              
 first place.                                                                  
                                                                               
 TAPE 95-2, SIDE A                                                             
 Number 000                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if he has actually               
 seen a large number of these cases.                                           
                                                                               
 MR. GUANELI noted that it is not all judges, it is just certain               
 judges in certain areas of the state.  In many areas of the state,            
 it is a rare occurrence and this will not change that, but in those           
 areas of the state where for one reason or another the judge is               
 applying a looser standard, and with language such as "for good               
 cause," and good cause is a pretty low standard, and it depends to            
 a large extent on the judge's own subjective view about what that             
 is.  That can be used more than it should in some areas, so it                
 varies by region and by judge.                                                
                                                                               
 Number 017                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if he was aware of               
 circumstances where there are more than a handful of these                    
 depositions occurring, whether it is five or ten in a year or                 
 something like that.                                                          
                                                                               
 Number 021                                                                    
                                                                               
 MR. GUANELI said that was correct.                                            
                                                                               
 Number 022                                                                    
                                                                               
 CHAIRMAN PORTER noted the inclusion of Section 2, page 2, which               
 says that the court shall preside over a deposition, and orders               
 under (a).  The rule goes on to say that parties can agree on some            
 other form of deposition.  He had an amendment prepared, if Mr.               
 Guaneli felt there would be any kind of problem there, that would             
 say, "nor does it preclude depositions taken or used under (g) of             
 this rule."                                                                   
                                                                               
 Number 024                                                                    
                                                                               
 MR. GUANELI said there are cases where the victim is not going to             
 be the witness in the deposition.  It may be perfectly appropriate            
 to have it be a simple matter of agreeing whether it is going to be           
 in front of a court reporter or in a room off somewhere, and you              
 tape your testimony.                                                          
                                                                               
 Number 031                                                                    
                                                                               
 CHAIRMAN PORTER said his question is whether or not this can happen           
 under this current wording of the bill.                                       
                                                                               
 Number 036                                                                    
                                                                               
 MR. GUANELI said that no, he was satisfied.                                   
                                                                               
 Number 040                                                                    
                                                                               
 REPRESENTATIVE BUNDE moved that CSHB 26 (JUD) be passed from the              
 Judiciary Committee, with individual recommendations.                         
                                                                               
 Number 045                                                                    
                                                                               
 CHAIRMAN PORTER added, and fiscal notes as attached.  Hearing no              
 objection, the bill was moved.                                                

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