Legislature(2003 - 2004)
02/09/2004 01:04 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 349 - ILLEGALLY OBTAINED EVIDENCE Number 0067 CHAIR McGUIRE announced that the next order of business would be, HOUSE BILL NO. 349, "An Act amending Rule 412, Alaska Rules of Evidence." House Bill 349 has four prime sponsors: Representatives Stoltze, Dahlstrom, Samuels, and McGuire. Number 0020 REPRESENTATIVE HOLM moved to adopt the committee substitute (CS) for HB 349, Version 23-LS1322\H, Luckhaupt, 2/6/04, as the work draft. There being no objection, Version H was before the committee. Number 0016 SARA NIELSEN, Staff to Representative Ralph Samuels, Alaska State Legislature, spoke on behalf of Representative Samuels, one of the prime sponsors of HB 349, regarding Version H and how it differs from the original bill. TAPE 04-12, SIDE A MS. NIELSEN pointed out that in Version H, a comma was inserted on page 1, line 15, after "prosecution". On page 2, line 7, the word "prosecution" was changed to "civil or criminal action", and this addresses one of Representative Gruenberg's concerns. Number 0100 REPRESENTATIVE SAMUELS moved that the committee adopt Amendment 1, which read [original punctuation provided]: Page 2, line 7 (B) any criminal action, to impeach the defendant if the prosecution shows that the evidence was not obtained in substantial violation of rights of the defendant. CHAIR McGUIRE objected. REPRESENTATIVE SAMUELS, speaking as one of the prime sponsors of HB 349, recalled that during the bill's last hearing, the committee spoke with the public defender, and the drafters of the legislation [indicated] the need to ensure that the legislation isn't too broad. Therefore, the legislation has been narrowed in an attempt to make everyone happy on the issue. MS. NIELSEN, in response to a question, pointed out that [the language in Amendment 1] only needs to refer to "criminal action" due to the change from "witness" to "defendant". CHAIR McGUIRE removed her objection and said that Amendment 1 is a good amendment. REPRESENTATIVE GRUENBERG posed a situation in which there are co-conspirators and one is testifying against the other. The one testifying has already concluded his or her criminal case and thus there is no further taint from the illegally obtained evidence. He questioned why [the illegally obtained evidence] shouldn't be used if the witness has no further claim against the evidence due to the conclusion of that witness's case. REPRESENTATIVE SAMUELS remarked that he tried to walk a fine line with the Office of Victims' Rights (OVR), the Public Defender's Office, and the Department of Law in order to ensure that the legislation wasn't so broad that evidence which isn't desired is coming in all the time. Number 0446 STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR), Alaska State Legislature, returned to Representative Gruenberg's hypothetical situation regarding impeachment of a co-conspirator through a previous statement. The aforementioned can be done in spite of Amendment 1, he said, and opined that the answer lies on page 1, line 15 [of Version H]. REPRESENTATIVE GRUENBERG acknowledged that this isn't [addressing] testimonial evidence illegally obtained but rather non-testimonial evidence that was obtained in a technically incorrect manner, such as through a defective search warrant, and is being used to impeach a key witness. MR. BRANCHFLOWER answered that he thinks the solution would be to add the language "or co-defendant" after the word "defendant" in Amendment 1. REPRESENTATIVE GRUENBERG posed a situation in which the witness isn't technically a co-defendant and may have had his or her case dismissed or dealt with earlier. Although he acknowledged that adding "co-defendant" is an improvement, he asked whether it would be too narrow. MR. BRANCHFLOWER suggested adding the language "co-defendant or former co-defendant" [to page 2], lines 7 and 9, [of the bill]. REPRESENTATIVE GRUENBERG mentioned that he would support Mr. Branchflower's suggestion as an amendment. REPRESENTATIVE GARA suggested that on page 1, line 15 of Version H, the word "person" should be changed to "defendant" if this right is being limited to defendants whom one wants to impeach. REPRESENTATIVE GRUENBERG recommended that Representative Gara expand his suggestion to include "defendant, co-defendant, or former defendant". Number 0740 CHAIR McGUIRE, upon determining there were no further objections to Amendment 1, announced that Amendment 1 was adopted. REPRESENTATIVE GARA moved that the committee adopt Amendment 2, as follows: Page 1, line 15, Delete "person" Insert "defendant, co-defendant, or former defendant" Page 2, line 7, after "defendant" [the new language per the adoption of Amendment 1], Insert "defendant, co-defendant, or former defendant" Page 2, line 9, after "defendant" [the new language per the adoption of Amendment 1], Insert "defendant, co-defendant, or former defendant" CHAIR McGUIRE specified a conceptual caveat to Amendment 2 that wherever "defendant" appears in [proposed paragraphs (1)(B) and (2)(B)], the language "co-defendant, or former defendant" should follow. CHAIR McGUIRE, upon determining that there were no objections to Amendment 2 [as amended], announced that Amendment 2 [as amended] was adopted. Number 0891 REPRESENTATIVE GARA moved that the committee adopt Amendment 3, a handwritten amendment which read [original punctuation provided]: Insert @ p. 2 line 2 after "voluntary", ", recorded if required by law," REPRESENTATIVE GARA indicated that his fear is that there could be a circumstance in which a tape was thrown away, and a claim is later made in court that the tape said something for which there is no longer any evidence. He said he wanted to exclude from this legislation cases in which law enforcement discards a tape that is required by law. He said he didn't believe [a discarded tape] should be used against a defendant. This protects due process, he said. MR. BRANCHFLOWER informed the committee that this legislation would raise the bar higher than the Alaska Supreme Court stated in the [Stephan v. State of Alaska] opinion. The aforementioned case provided for exceptions when recordings are not available. The exceptions are when there has been a mechanical difficulty that results in no recording or when the defendant requests that no recording be made. Mr. Branchflower said that he believes it would be difficult to codify circumstances in which the police have not engaged in any intentional misconduct and yet the tape is no longer available. Mr. Branchflower surmised that Representative Gara is trying to focus on the unusual situation in which a police officer is guilty of a crime, destruction of evidence. The aforementioned would prevent a statement from being used to impeach a defendant who commits perjury. Mr. Branchflower said it is difficult to imagine a circumstance in a trial context where the aforementioned would be the history of the case. REPRESENTATIVE SAMUELS expressed concern about slowing down the bill's progress. REPRESENTATIVE GARA agreed with Mr. Branchflower that there is no desire to create an exemption each time the police don't retain a recording because some recordings wouldn't be required by law. Amendment 3 merely addresses those circumstances when a recording is required by law. MR. BRANCHFLOWER inquired as to how the exceptions under the law would be handled in instances where there could be a statement that is required to be recorded but the recording isn't available due to one of the exceptions. REPRESENTATIVE GARA pointed out that if there is an exception, then [the recording] isn't required by law. CHAIR McGUIRE asked about changing the language being inserted in Amendment 3 to read ", recorded if required by law, and not governed by one of the recognized exceptions". REPRESENTATIVE GARA agreed to Chair McGuire's conceptual suggestion. MR. BRANCHFLOWER said such language would address the exemption issue. Number 1166 CHAIR McGUIRE removed her objection. The committee took an at-ease from 3:12 p.m. to 3:14 p.m. REPRESENTATIVE GARA clarified that [Conceptual] Amendment 3 [as amended] would be: "the statement shall not be allowed if it was required to be recorded by law, recognizing that there are some exceptions to the recording requirement that would be retained". CHAIR McGUIRE, upon determining that there were no further objections to Conceptual Amendment 3 [as amended], announced that Conceptual Amendment 3 [as amended] was adopted. Number 1241 REPRESENTATIVE HOLM moved to report CSHB 349, Version 23- LS1322\H, Luckhaupt, 2/6/04, as amended, out of committee with individual recommendations [and the accompanying fiscal notes]. There being no objection, CSHB 349(JUD) was reported from the House Judiciary Standing Committee.
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