Legislature(1997 - 1998)
01/24/1997 01:00 PM 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 9 - VICTIM'S RIGHT TO BE PRESENT AT TRIAL CHAIRMAN GREEN announced that the next item of business was HB 9, "An Act relating to the right of crime victims and victims of juvenile offenses to be present at court proceedings; and amending Rule 615, Alaska Rules of Evidence." REPRESENTATIVE PORTER, Prime Sponsor of HB 9, noted that the legislature passed a constitutional amendment that would provide victims the same rights, in criminal proceedings, as the defendant has. He advised members that there were at least two judges in the state that felt the wording of the constitutional amendment allowed them to refer back to the statute that would allow the exclusion of witnesses prior to their court testimony, and interpreted that language to mean victims as well. Representative Porter pointed out that that was not the intent of the constitutional amendment, and was the reason for amending the statute that those particular judges were relying on by specifically stating victims could not be excluded whenever the accused has the right to be present. JAYNE E. ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety advised members that the Council was overseen by a seven-member board that establishes the policy of the council and directions it takes. She advised members that the council, itself, had not had the opportunity to review the proposed legislation. Ms. Andreen noted that the comments she would be making would be based on positions the council had taken in the past on similar issues, and comments and feedback the council had received from grantees at the local level. MS. ANDREEN advised members that the council highly supported the constitutional amendment and were also supportive of the efforts at the federal level for passage of a similar type of constitutional amendment. Ms. Andreen stated that the council felt that the public was making a strong statement that victims do need to have equal access to the criminal justice system and procedures, as do the defendants. MS. ANDREEN noted that the council had heard from some of their grantees around the state that there was a fairly significant number of circumstances where victims were denied access to criminal proceedings because of the fact that they are victims and could be required to testify in the future. She advised members that the council was concerned that the intent of the constitutional amendment was not being followed through. It was her understanding that the proposed legislation would assist in alleviating those concerns to a large extent. Number 945 DEL SMITH, Deputy Commissioner, Department of Public Safety, advised members the department was in support of HB 9. ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, advised members the department was in support the proposed legislation. She noted that the Constitution, Article I, Section 24 guaranteed victims the right to be present at all phases of a proceeding where the defendant has a right to be present. MS. CARPENETI felt the Constitution was fairly clear, however the proposed legislation might be necessary to convince all judges of the right for victims' participation in court proceedings. REPRESENTATIVE ROKEBERG asked what judges appeared not to be adhering to the language of the constitutional amendment. MS. CARPENETI felt it involved a couple judges in the Anchorage area that, based on the language in the amendment which states, "crime victims, as defined by law, shall have the following rights as provided by law", were basing the fact that there was not a statute in Title 12 or Title 11 on that language. Ms. Carpeneti explained that presently Title 47 allowed victims to participate in juvenile proceedings at every stage where the charged juvenile could be present. REPRESENTATIVE CROFT referenced Section 24 of the Alaska Constitution and asked Ms. Carpeneti if it would violate the federal right to a fair trial in situations where the witness was listening to trial testimony and alter their testimony to fit what they had heard. Number 1550 MS. CARPENETI did not believe that would take place. She pointed out that victims of crimes, typically, have given statements to the police, which are transcribed, and have also testified at grand jury proceedings and the defense attorney would have the right to cross examine the witness or victim on any changes that might arise, if the victim had altered their testimony. She felt the right of cross examination of the victim's testimony would take care of a possible argument that there might be any due process concerns. REPRESENTATIVE CROFT asked if there was a definition of victim in the Constitution. Ms. Carpeneti advised members there was a statutory definition, AS 12.55.185. The Constitution makes reference to the term "victim", as is defined by law. REPRESENTATIVE CROFT asked if it would be possible to change the constitutional definition of victim by changing the statutory definition of victim. MS. CARPENETI felt that could be done because the Constitution states, as defined by law. REPRESENTATIVE CROFT felt there could be a conflict of two constitutional provisions; a defendant's right to a fair trial, and the victim's right to be present, which could result in the victim changing their testimony because of testimony they heard while sitting in on a proceeding. He questioned if what was provided in statute would change the conflict of those two constitutional rights. MS. CARPENETI did not feel those two constitutional rights would present a conflict in the Constitution. She felt if there was any due process issue, in terms of a defendant, that it could be easily addressed through cross examination of the victim or witness. CHAIRMAN GREEN requested testimony from the two teleconference sites, Anchorage and Fairbanks, Alaska. Number 2000 SARAH MUSGROVE testified via teleconference from the Anchorage Legislative Information Office (LIO). As a victim of the crime of murder, Ms. Musgrove testified in favor of HB 9. She stated that as a victim, she did not feel that the state, or anyone else, had the right to deny her the right to listen to all court proceedings, as does the defendant. Ms. Musgrove expressed the need to be allowed to participate in all court proceedings for healing purposes and the right and need to know the truth. MARTI GREESON, Executive Director of Mothers Against Drunk Drivers, (MADD), advised members she had worked in victim services for over 22 years, primarily through law enforcement agencies. She pointed out that over that time span, victims' rights had become recognized throughout the nation. Ms. Greeson expressed that victims were consistently excluded from the criminal justice process. MS. GREESON stated that the rights of victims should be protected at least to the extent that the defendants rights are protected and supported HB 9. JANICE LIENHART, representing Victim's for Justice, advised members she had been working with victims of crime for the past ten years. Ms. Lienhart felt the most important component of the healing process was receiving information about the alleged crime. She pointed out that police would not provide information to the victim because it could contaminate the case. Ms. Lienhart felt laws should be made for the purpose of providing victims answers, and provide equal rights in the court room as the defendant has. JANELLE DIXSON, testified as a victim of a violent crime. She explained that her husband had been murdered in 1995. Ms. Dixson pointed out that the trial had been rescheduled numerous times for various reasons. Ms. Dixson advised members that the defendant was allowed to attend all court proceedings, while she was prohibited from attending the evidentiary hearing, as well as the trial. TAPE 97-3, SIDE A Number 000 Although Ms. Dixson had told the same story many times, she was told that should she hear other testimony during trial, that it may result in her swaying her testimony. Ms. Dixson felt the system treated criminals like victims, and victims like criminals. SARAH MUSGROVE, spoke on behalf of Dawn Scherbert because she had to leave. Ms. Scherbert was also a victim of the crime of murder. Ms. Scherbert felt it was her right to be present during all court proceedings, however was denied access to those proceedings. Ms. Scherbert also spoke in favor of HB 9. KAREN CAMPBELL, a victim of the crime of murder, explained her experience with the criminal justice system. Her daughter, 18 years old, was found murdered in 1994. She advised members that her daughter was the victim of a brutal murder, and that she, herself, was a victim of justice and state laws. Ms. Campbell pointed out that a jury is responsible for determining whether a defendant is telling the truth, and asked if state lawmakers felt that same jury was incapable of determining whether a victim was being truthful. MS. CAMPBELL pointed out that victims were always being excluded and left in the dark at a time when they were desperately seeking answers. Number 670 CHARLOTTE PHELPS testified in support of HB 9 noting that the proposed legislation would give victims, and families of victims, the opportunity to participate more fully in the criminal justice process. She felt the state's criminal justice system was overly protective of the rights of the accused, and often ignored the rights and needs of victims. CHAIRMAN GREEN recognized the presence of Senator Dave Donley. BARBARA BRINK, Acting Director, Public Defender Agency, Department of Administration advised members she had served as a public defender throughout the state for the past 14-1/2 years. MS. BRINK explained some unintended consequences that could result with the enactment of HB 9. Ms. Brink advised members that the rule that allowed certain witnesses to be excluded from trial was a tool designed to improve the accuracy of the fact finding process. A victim, who was not a witness to the event, would never be excluded under the exclusionary rule. Ms. Brink stated that if it was a case where the victim was also a witness whose perceptions, observations and memory of such an event would assist the jury in finding facts that the rule could promote accuracy by keeping witness/victim's testimony untainted by the testimony of other witnesses. MS. BRINK advised members that the exclusionary rule attempts to make it possible for a judge to hear recollections, perceptions and impressions of each witness separately. She further stated that the rule allows a judge to determine when it is critical that a witnesses testimony be unclouded and unaffected, which was the reason they are asked not to participate in the court room until after they had testified. MS. BRINK noted that the exclusionary rule in the federal system operated in the same manner. She reiterated that if a victim was not actually a witness to a criminal event, they would not be excluded under the rule, and if they were a witness, the prosecutor could solve that problem by calling them to testify first. MS. BRINK explained that the two Anchorage judges were trying to balance the victim's constitutional right to be present, along with their concern that the jury receive accurate information. Number 1066 REPRESENTATIVE PORTER expressed that the judges who were excluding victims were saying that the exclusionary statute was the law that was being provided by the state, and that was the reason that they could exclude a victim witness from being present during various court proceedings. If that were the fact situation in front of the committee, he asked Ms. Brink if the correction to amend that would be to amend the statute those judges were referring to. MS. BRINK stated that if she understood the question correctly, that the answer would be yes. However, she did not feel that would necessarily preclude those judges from attempting to make the balancing test, not between the rule and a constitutional right, but a balance between two competing constitutional rights. REPRESENTATIVE PORTER did not disagree with Ms. Brink's response, although noted that if that had been the case, he would have been happy to make some suggestions about a subsequent retention election. He continued noting that the two judges were actually using the statutory language as the rationale for their rulings. KEVIN SHORES, Representative of the Alaska Civil Liberties Union, (ACLU), noted that he had only recently been apprised of the proposed legislation. He expressed that the ACLU opposed HB 9, adding that he felt one of the other witnesses who testified on the proposed legislation was accurate when she stated that what victims were seeking was the truth. MR. SHORES explained that the ACLU was interested in preserving the constitutional right to due process and having a fair, truth- finding process. Mr. Shores supported the comments provided by Ms. Brink of the Public Defender Agency, and agreed that when in a trial situation, memory was affected by talking to people by what is said and heard. He noted that the memory changes over time, pointing out that psychologists had conducted studies on that concept to find it to be so. MR. SHORES advised members that the ACLU was interested in the integrity of the fact finding process. He pointed out that the proposed legislation would apply to all criminal cases, not just murder cases. Mr. Shores explained that through his experience as a criminal defense practitioner, it was rare for a victim to come into court, even to exercise their rights at sentencing. He stated that victims, in his experience, most often attend court proceedings in domestic violence cases. Mr. Shore noted that often times in those cases, the victim wants to support the person who had plead out to the offense, and ask that charges be dropped. MR. SHORES asked that members consider all of the types of cases the proposed legislation would affect. REPRESENTATIVE PORTER quoted the language in the Alaska State Constitution as follows: "The victims have the right to obtain information and to be allowed to be present at all criminal or juvenile proceedings where the accused has the right to be present". He advised members that that was a guaranteed right of the Alaska State Constitution. Representative Porter pointed out that there was a conflicting right, in the Constitution, which states that the defendant has the right to a fair trial. As the sponsor of HB 9 and the victim's rights legislation, Representative Porter felt a judge would lose in the court of public opinion if he or she said that the defendant's rights superseded the victim's rights. REPRESENTATIVE PORTER noted that the two particular judges were not allowing victims in the court room because of the specific wording of the constitutional amendment and the inclusion of that right by statute. REPRESENTATIVE PORTER moved to amend HB 9 on page 2, line 6, following the word "witness", insert, In this section, "victim" has the meaning given in AS 12.55.185., and on page 2, line 27, following the word "present;" insert "victim" has the meaning given in AS 12,55,185. There being no objection, amendment number one, HB 9, passed unanimously. REPRESENTATIVE BERKOWITZ stated that when there was a conflict of constitutional rights, he felt it was incumbent on members to consider the consequence and felt uncomfortable proceeding further with the proposed legislation prior to receiving some type of legal analysis as to what the constitutional conflict was, and a likely resolution of that conflict. REPRESENTATIVE PORTER responded that there was no definitive resolution to Representative Berkowitz question, which was the whole point. He pointed out that one of the first questions that arose, and was still unresolved, was the conflict between the amendment's provision that the defendant, too, has a right to a speedy trial. Representative Porter noted that case law had determined what that meant on the defendant's side to 120 days, however, there was no conflict when that case law was developing. REPRESENTATIVE PORTER continued stating that now, through the constitutional amendment, the victim would have a right to request the right to a speedy trial, should the defendant attempt to delay trial proceedings, for whatever reason. REPRESENTATIVE BERKOWITZ stated that in his opinion as both a prosecuting attorney and a defense attorney, that to take a step as was being proposed, he felt it was important to proceed cautiously. He agreed that there was a lot of pressure and sympathy for people who had been victimized by crimes. However, he felt it was also important to assure that the protections afforded under the Constitution, not only to defendants, but to the entire process and the integrity of that process remain intact. CHAIRMAN GREEN advised Representative Berkowitz that he would have ample time to review and address the issue again, either on the House floor, or when the bill goes over to the Senate. VICE CHAIRMAN BUNDE moved to report CSHB 9(JUD) out of committee with individual recommendations. REPRESENTATIVE BERKOWITZ objected. A roll call vote was taken. In favor: Representatives Bunde, Porter, James and Chairman Green. Opposed: Representative Croft and Berkowitz. CSHB 9(JUD) was reported out of committee.
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