Legislature(2003 - 2004)
01/30/2004 01:10 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 397 - DEFENSE CONTACTS WITH VICTIMS & WITNESSES Number 1306 CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 397, "An Act relating to defense contacts with and recordings of statements of victims or witnesses; and amending Rule 16, Alaska Rules of Criminal Procedure." CHAIR McGUIRE, speaking sponsor of HB 397, explained that she was contacted by a constituent whose 16-year-old daughter was raped. The girl told her parents, the investigation was begun, and charges were filed. While home alone, the girl received a phone call from the perpetrator's defense attorney who asked if she would be willing to talk to him. Agreeing to drive down to the public defender's office before her parents got home, the girl believed that she would be learning about case developments during the meeting and wanted to give her side of the story. Although her parents were not included, nor asked to participate, the public defender recorded the girl's statements, some of which were ultimately used against her. Later, when her parents found out about this, they filed a claim against the Public Defender Agency (PDA) because it was their understanding that there had to be parental consent before questioning. CHAIR McGUIRE said she thought there was a loophole, in that recorded statements are treated differently than unrecorded statements. She said that HB 397 would change the law to require parental consent before a minor speaks with a defense investigator or defense attorney. It allows a parent or guardian to obtain a transcript of the recorded statements made by the minor victim or witness. She said the bill has an important exemption in that if the victim's parent or guardian is the defendant, the victim would not have to obtain parental consent. CHAIR McGUIRE noted that one draft version of the bill addressed only the [aforementioned] "loophole." However, while working on the bill, the drafters noticed inconsistencies in [other] sections of statute, so HB 397 now also deals with those inconsistencies. Mentioning that there may not be enough votes in the Senate to pass the bill's proposed court rule change, she indicated that at the very least, she wants to get the bill's intent into law. Number 0943 VANESSA TONDINI, Staff to Representative Lesil McGuire, House Judiciary Standing Committee, Alaska State Legislature, relayed, on behalf of Chair McGuire, sponsor, that HB 397 amends AS 12.61.120(b), AS 12.61.120(c), AS 12.61.120(d), and AS 12.61.120(e). She pointed out that in almost all other areas of the law where minors' rights are an issue, a juvenile is normally deemed not competent to waive those rights. She said the changes to [AS 12.61.120] are consistent with Alaska's laws and policies. Upon adding the additional step that the defense team would have to go through in order to contact the minor victim or witness, the drafters felt that an indirect court rule amendment should be included in the bill as a safeguard. She remarked that the intent of the bill's current language is to make all sections pertaining to this issue conforming. REPRESENTATIVE GARA opined that what Chair McGuire is calling a loophole is simply a policy choice. He suggested that the reason why current law says that if the statement is recorded then parental consent is not needed, is to avoid the circumstance where someone tricks a minor into [testifying], and there is no tape or record of it. A prior legislature said that if there is a recording, it is possible to tell whether there is any untoward conduct going on. He explained, if parental consent is required, the defense investigator has to go back two or three times to be [present] at the same place that the parent and victim are together. He said HB 397 is going to require more investigative work [on the defense's part], adding that he wants the playing field to be level. He asked whether a different rule was being adopted for the defense than for the prosecution, or whether the rule would be the same. In other words, if the investigator for the defense now has to get consent from the parent, does the same rule apply for the prosecution. MS. TONDINI opined that the current policy and purpose behind these statutes assumes that victims and witnesses are at risk of harassment, intimidation, and invasion of privacy when they are unwillingly thrust into the legal system. These potential harms increase drastically when the victim is a minor, she said. She went on to say that AS 12.61.120(b) deals with situations where the defendant is proceeding without counsel and is deemed to be dangerous and poses a threat to the victim or witness. The court will protect the address and telephone number [of the victim or witness] by providing it to a third party who acts as the defendant's representative in contacting the victim or witness. If the victim or witness is a minor, [the representative] must go through the parent. MS. TONDINI noted that Section 3 specifies that if the victim or witness is a minor, [the defendant or defending attorney] must also obtain permission from the parent to contact the victim or witness. Notification of the rights of the victim or witness must also be given to the parents. She said that proposed AS 12.61.120(d) changes the requirement that if the statement is being recorded, parental consent is required. The bill says, in proposed AS 12.61.120(e), the parent or guardian may obtain the transcript of the recording. She explained that Section 6 states that if the defendant is the parent or guardian, the defendant doesn't have the appropriate authority to provide the consent. Number 0378 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), said there is a constitutional provision that says to treat all witnesses with fairness and dignity. She said that the question of fairness toward criminal defense investigators needs to be looked at because this bill does not apply to police investigators, who are not required to get the consent of a parent before they interrogate or question a minor witness or alleged victim, nor is a civil investigator required to do so. The bill is singling out criminal defense investigators and would impair legitimate investigative efforts. She said those efforts go to providing the defendant with his/her constitutionally mandated right of effective assistance from counsel. MS. WILSON noted that the statute requiring written authorization for a non-recorded statement is in AS 12.61.125, which is not mentioned in HB 397 at all. That section's specific purpose is related to victims and witnesses of sexual offenses, and the example that Chair McGuire gave was a case of an alleged sexual offense, Ms. Wilson said, adding that AS 12.61.120 says nothing, currently, about requiring a non- recorded statement to have parental consent. MS. WILSON explained that when one has a defense investigator doing a legitimate investigative effort, it is another search for the truth. When good work is done by the defense team, it often results in flushing out relevant facts in a case. Those facts can ultimately resolve the case, short of trial, either because all of the problems have been resolved, or possible defenses have been found. There may be a situation where, the first time the witness is allowed to be questioned by the defense team, is at trial. More cases may go to trial if there are less opportunities and more barriers to the ability of the defense investigators to do the work they need to do. MS. WILSON said the focus of the bill seems to be from the perspective of the sex offense case, so it is possible that this could be limited to simply changing AS 12.61.125. It would be an easy fix to apply the requirement for written authorization from the victim or witness, whether [the testimony is] recorded or not recorded, she said, adding that it could be expanded to every case dealing with witnesses. There are concerns with older teens getting written or specific consent from a parent. There is going to be more investigative evidence required by the defense. The bill is singling out the criminal investigators, she said, noting that it this does not just say "notify", it says, "get their consent". TAPE 04-8, SIDE A Number 0001 MS. WILSON concluded by remarking that under HB 397, police still wouldn't have to get the consent of the parents even though the defense would. She said she is not sure that that's very fair. CHAIR McGUIRE explained that although the aforementioned sexual assault case was what prompted her to look at the current statutes regarding parental notification, the intent was to have HB 397 apply to more than just sexual assault cases. Number 0058 STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR), Alaska State Legislature, turned to some of the issues raised earlier in the discussion. Regarding the phrase, the search for the truth, he suggested that the meaning of that phrase could be debated at length because what the truth is to the defense is oftentimes far different than what the truth is to [the prosecution]. He elaborated: I've heard judges ... [remark that] the criminal justice machine does not provide a level playing field. And I agree with that, but I have to qualify that by saying that the reason it's not a level playing field is [that] in many respects, the criminal justice system favors the defendant against the state. So it's not level; not because the state has the advantage, ... [but] because the defense has the advantage. Let me give you some examples. ... In response to Representative Gara's inquiry about whether or not we had ... different standards for police and defendants, the answer is yes, of course we do. But that's not a bad thing; there are many areas in the law that involve different standards. For example, the defense starts out with ... a clean slate, as the judge instructs the jury, and has the presumption of innocence. That's something the state has to overcome, so the scales of justice don't start off equally balanced. The defendant has a Fifth Amendment right not to be called upon, which includes - and it has been interpreted to include - not to require him to share the discovery. A few years ago, the legislature promulgated a reciprocal discovery statute in an effort to level the playing field, so that if the defendant wanted discovery, he would have to provide discovery to the state to avoid surprises. And that was declared unconstitutional. Number 0201 MR. BRANCHFLOWER continued: So yes, there are different standards, but ... each different standard, I believe, serves ... legitimate public policy. Now, it's true that the defense has the right to conduct their own investigation in a criminal case, and this bill does not impair that. But the truth of the matter is that the investigation that the defense does is not anything like the investigation the police do, because the police start off at ground zero. They start out in the dark; they don't know what the facts are, they don't know who the responsible person is. By the time the defendant is charged, after they determine who's responsible and after the ... state gets involved, the public defender has the benefit, through [the Alaska Rules of Criminal Procedure] Rule 16, of all that discovery. They get copies of the lab reports, ... all the police reports, the statements, et cetera. So when they go out to conduct an investigation, as they did in [the Brooke] case, they are not starting out from ground zero to find out what happened; they are ... not necessarily trying to find, quote, "the truth." ... [What] they're trying to do is sustain the burden that they have, which is the burden of creating reasonable doubt. It's not proving the case beyond a reasonable doubt; it's creating doubt. And the way they do that is by obtaining a statement, preferably recorded, ... in order to impeach witnesses at trial in an effort to undermine the state's case. And when that happens, when mid-trial impeachment occurs, witnesses lose credibility, and it makes it very difficult for 12 jurors to agree beyond a reasonable doubt. Oftentimes the state is surprised, and that can prejudice the case. MR. BRANCHFLOWER concluded: Now, the bill that you have before you, all it does is it requires parental input when the defendant or the defense attorney wishes to obtain a recorded statement. And that brings up to a level ... the status quo regarding when the public defender or defense investigator wishes to obtain a non-recorded or written interview from a minor. It just extends the same protection to the same class of ... people, which are the minors. I think it also serves another interest, which is, it helps parents and guardians learn about what's going on in their children's lives, and it helps them make smart decisions, it helps them make decisions that hopefully avoid bad decisions that will have lifelong lasting effect. So yes, we do have different standards, but I think that there are legitimate public policies that underlie those different standards - on both sides. Thank you. Number 0430 MS. TONDINI, turning to an issue raised by Ms. Wilson, explained that AS 12.61.120 was amended because AS 12.61.125(2)(A) reads as follows: "if the statement is taken as a recording, the recording is taken in compliance with AS 12.61.120" and thus refers back to AS 12.61.120. Therefore, AS 12.61.120 is amended in HB 397. She further explained that the only reason the addition was made in this section is because the procedures with which the recording needs to comply are extensively specified in AS 12.61.120. The desire was to ensure that those recording procedures were also followed in cases dealing with sexual offenses. "If what we're saying is parental consent is inherently required because these minors aren't legally competent to waive these rights, then we should make it clear in the statutes and be uniform and make sure it applies both to recorded and nonrecorded statements for sexual offenses and all offenses," she clarified. REPRESENTATIVE GARA acknowledged that he and Mr. Branchflower disagree on this matter and remarked that the rules can't be constructed under the assumption that all people who are charged are guilty. He pointed out that sometimes when things are made easier to convict guilty people, it also makes it easier to convict innocent people. The aforementioned is the struggle [before the legislature]. Representative Gara posed a situation in which there is a defendant who is being wrongly charged with a crime, who's being threatened that he/she will go to jail for something that individual didn't do. Assuming the aforementioned case, Representative Gara questioned why it's being made easier for the prosecution to prove the case against the innocent person than is being made for the defense team to prove that the person is innocent. He emphasized that it seems the rules should be consistent. Therefore, if the investigator for one side [is required to] obtain parental consent, so should the other side. REPRESENTATIVE GARA suggested developing a role that protects people in the greatest manner possible and perhaps to protect victims and minors, parental consent should always be required. He said that he didn't have a problem with the aforementioned, although he did have a problem if one side is tilted such that one side has an easier time proving their case than the other side. He acknowledged that the playing field is tilted in favor of one side in that the defendant starts with the presumption of innocence, which he viewed as a good rule that he didn't want to eliminate. However, he said he didn't believe it's a good rule to tilt it here. If there is a possibility that a defense investigator will act in an abusive manner toward a minor, then wouldn't it also be possible that an investigator for the prosecution will investigate the case in an abusive way toward a minor as well. Shouldn't one be concerned about that as well, he asked. MR. BRANCHFLOWER related that most cases involving legally innocent people are screened out, although he acknowledged that from time to time juries do return not guilty verdicts. In the cases with which Mr. Branchflower is familiar, he said those verdicts represented a failure of proof rather than a not guilty individual. Mr. Branchflower opined that it is neither workable nor necessary to impose the same requirements on police with regard to contacting parents because the police most often have the same best interest of the witnesses, including minor witnesses, as the parents do. The interests of the parents, the victims, and the police are all in sync because all desire holding the culpable person accountable. A police officer isn't looking for inconsistent statements to impeach an individual on trial. Therefore, society, through the police, has an interest in sustaining the burden in order to hold offenders accountable. Society's duty to protect victims is mandated in the constitution, he highlighted. Mr. Branchflower pointed out that the legislature has an obligation to protect its citizens from undue influence, which is exactly what the statute does, especially with regard to minors. Number 0934 REPRESENTATIVE GRUENBERG pointed out that a [minor female] has the right to privacy of her own body with respect to an abortion, and therefore doesn't have to obtain parental consent. However, [this legislation] won't let a minor individual talk to the defense without parental consent. Therefore, he questioned whether the witness has a constitutional right to talk to whomever they want. [HB 397 was held over.]
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