Legislature(2011 - 2012)CAPITOL 120
03/16/2012 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB50 | |
| HB359 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 344 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 50 | TELECONFERENCED | |
| += | HB 359 | TELECONFERENCED | |
HB 359 - SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE
1:12:38 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 359, "An Act relating to conspiracy to commit
human trafficking in the first degree or sex trafficking in the
first degree; relating to the crime of furnishing indecent
material to minors, the crime of online enticement of a minor,
the crime of prostitution, and the crime of sex trafficking;
relating to forfeiture of property used in prostitution
offenses; relating to sex offender registration; relating to
testimony by video conference; adding Rule 38.3, Alaska Rules of
Criminal Procedure; and providing for an effective date."
[Before the committee was HB 359 as amended via the adoption of
Conceptual Amendments 1 and 2 on 3/14/12.]
1:13:10 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 3,
labeled 27G-2-C, 3/15/2012, (3:03 pm), Carpeneti, which
contained handwritten changes and which originally read
[original punctuation provided]:
Page 4, line 29 through page 5, line 3:
Delete all material and insert:
"(c) Prostitution is a class C felony if
(1) the defendant is a patron of a
prostitute;
(2) the prostitute is under 18 years of
age;
(3) the defendant is over 18 years of age
and at least three years older than the prostitute.
(d) In a prosecution for a felony under this
section that provides that the prostitute be under 18
years of age, it is an affirmative defense that, at
the time of the alleged offense, the defendant
(1) reasonably believed the prostitute to
be 18 years of age or older; and
(2) undertook reasonable measures to verify
that the prostitute was that age or older."
[The handwritten changes in Amendment 3 as moved by
Representative Gruenberg involved replacing the words, "is a
patron of", with the word, "patronizes" in its
subsection (c)(1).]
REPRESENTATIVE GRUENBERG explained that Amendment 3 would
replace the language in Section 6 - currently proposing to add a
new subsection (c) to AS 11.66.100, which pertains to the crime
of prostitution - with language adding a different new
subsection (c) and a new subsection (d), thereby providing for
an affirmative defense for the perpetrator of that crime - who,
as outlined in AS 11.66.100(a)(2), would be a person who offers
a fee in return for sexual conduct - based on a reasonable
mistake as to the age of his/her victim. Under changes proposed
by existing Sections 5 and 6 of HB 359, it would be a class C
felony to be the [patron] of a prostitute who is under 18 years
of age if the [patron] is at least three years older than
his/her victim, but otherwise violations of AS 11.66.100 would
remain a class B misdemeanor.
1:16:29 PM
REPRESENTATIVE GRUENBERG [made a motion to amend] Amendment 3 by
adding the word, "and" to the end of Amendment 3's
subsection (c)(2); this would clarify that all three elements
outlined in that subsection (c)'s proposed paragraphs (1)-(3)
must be present. There being no objection, Amendment 3 was so
amended.
REPRESENTATIVE KELLER, for the purpose of discussion, objected
to the motion to adopt Amendment 3, as amended.
REPRESENTATIVE GRUENBERG explained that it is Amendment 3's
subsection (d) - the language of which was taken in part from AS
11.41.445(b) - that provides the affirmative defense based on a
reasonable mistake as to the age of the victim. He opined that
it should be up to the perpetrator of the crime to prove not
only that he/she reasonably believed his/her victim was 18 years
of age or older, but that he/she also took reasonable measures
to verify that fact.
REPRESENTATIVE GRUENBERG mentioned that AS 11.81.900(b)(2)
defines the term, "affirmative defense" for purposes of Title 11
as:
(2) "affirmative defense" means that
(A) some evidence must be admitted which places
in issue the defense; and
(B) the defendant has the burden of establishing
the defense by a preponderance of the evidence;
REPRESENTATIVE GRUENBERG offered his understanding that under
Amendment 3, as amended, the perpetrator would have both the
burden of going forward and the burden of persuasion; and that
it would be up to the court, on a case-by-case basis, to
determine whether those burdens have been met.
CHAIR GATTO, after ascertaining that there were [no longer any]
objections to the motion before the committee, announced that
Amendment 3, as amended, was adopted.
1:24:14 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 4,
labeled 27G-2-A, 3/15/2012, (3:01 pm), Carpeneti, which read
[original punctuation provided]:
Page 8, lines 21 - 22, following "witness":
Delete "would be required to travel more than 50
miles to the court or"
Page 8, line 23, following "court":
Insert "; and the procedure allows the parties a
fair opportunity to examine the witness. The video
conference technician shall be the only person in the
presence of the witness unless the court, in its
discretion, determines that another person may be
present. Any person present with the witness must be
identified on the record"
CHAIR GATTO relayed that [the committee] would object for the
purpose of discussion.
1:24:32 PM
JAMES R. WALDO, Staff, Representative Lindsey Holmes, Alaska
State Legislature, explained that Amendment 4 would change
Section 16's proposed new subsection (h) to AS 12.47.100 - one
of the provisions in Alaska's code of criminal procedure
pertaining to insanity and competency to stand trial - such that
it would no longer stipulate that testimony by contemporaneous
two-way video conference may be allowed if the witness would be
required to travel more than 50 miles to court, and such that it
would additionally stipulate that the procedure involving such
testimony must allow the parties a fair opportunity to examine
the witness, that the video conference technician shall be the
only person in the presence of the witness unless the court, in
its discretion, allows another person to also be present, and
that any person present with the witness must be identified on
the record. Under Amendment 4, proposed subsection (h) would
still stipulate that testimony by contemporaneous two-way video
conference may be allowed if the witness lives in a place from
which people customarily travel by air to the court. Amendment
4 would ensure that what he termed, "witness coaching" didn't
occur under Section 16's proposed new subsection (h) to
AS 12.47.100.
REPRESENTATIVE KELLER questioned whether Amendment 4 would place
a burden, or have a fiscal impact, on the Alaska Court System
(ACS) - specifically Amendment 4's stipulation that it would be
up to the court to determine whether to allow another person to
be present with the witness and the video conference technician.
MR. WALDO acknowledged that he'd not yet discussed that issue
with the ACS, but ventured his belief that probably all that
would be required under Amendment 4 would be a ruling by the
court that a particular person should also be allowed to be in
the witness's presence.
1:28:35 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System (ACS), in
response to questions, indicated that Amendment 4 would have no
fiscal impact on the ACS, and that the ACS frequently makes use
of certified translator services, adding that to date, she's not
heard of any mistranslation problems arising from the use of
those court-approved services.
REPRESENTATIVE GRUENBERG referred to the language in
Section 16's proposed subsection (h) which stipulates that
testimony by contemporaneous two-way video conference may be
allowed if the witness "lives in a place" from which people
customarily travel by air to the court, and suggested that that
language should be changed to instead read, "is in a place",
because where the witness is at the time of the pretrial hearing
to determine competency is more important than where he/she
lives.
MS. MEADE indicated that changing "lives" to "is" in that
provision would be acceptable to the ACS, and that doing so
might be an improvement. In response to a question pertaining
to Amendment 4's stipulation that all persons present with the
witness must be identified on the record, she indicated that in
her experience, that stipulation shouldn't present a problem for
such persons or place them in any danger.
REPRESENTATIVE HOLMES concurred, and mentioned that Amendment 4
is intended to address concerns about who might be present with
the witness when he/she testifies, because when a person
testifies remotely, it is not always possible to tell who else
could be in the room with that person. In the courtroom, in
comparison, everyone can at least see everyone else and so would
notice someone's efforts to coach the witness, for example.
REPRESENTATIVE PRUITT pointed out, however, that not everyone in
the courtroom identifies himself/herself on the record, whereas
under Amendment 4, everyone at the remote location would have
to, and such exposure carries potential risk.
MS. MEADE, in response to comments and questions, pointed out
that Section 16's proposed AS 12.47.100(h) would only apply to
witnesses at competency hearings, not defendants and not
criminal trials.
REPRESENTATIVE KELLER objected to the motion, and then indicated
that he was removing his objection.
CHAIR GATTO, after determining that there were no [further]
objections, announced that Amendment 4 was adopted.
1:40:08 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 5,
labeled 27G-2-B, 3/15/2012, (2:24 pm), Carpeneti, which read
[original punctuation provided]:
Page 17, line 1, following "testimony":
Insert "at trial"
Page 17, line 11, following "stand.", through line 15:
Delete all material.
Insert "The video conference technician shall be
the only person in the presence of the witness unless
the court, in its discretion, determines that another
person may be present. Any person present with the
witness must be identified."
REPRESENTATIVE PRUITT objected for the purpose of discussion.
REPRESENTATIVE HOLMES explained that Amendment 5 - addressing
Section 25, which is proposing a direct court rule change to
Rule 38 of the Alaska Rules of Criminal Procedure via the
addition of a new Rule 38.3 that would allow testimony from a
witness by contemporaneous two-way video conference at trial -
is similar to Amendment 4 in that Amendment 5 also stipulates
that the video conference technician shall be the only person in
the presence of the witness unless the court, in its discretion,
allows another person to also be present, and that any person
present with the witness must be identified on the record.
MS. MEADE, in response to a question, surmised that the normal
procedure for identifying translators would be applied by the
court.
REPRESENTATIVE PRUITT removed his objection.
CHAIR GATTO, after ascertaining that there were no further
objections, announced that Amendment 5 was adopted.
1:45:22 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), in response to
questions and comments, explained that under Section 25's
proposed new Rule 38.3, in order for the court to authorize
testimony of a witness by contemporaneous two-way video
conference, all the specific criteria outlined in paragraphs
(1)-(3) of proposed Rule 38.3(b) must be satisfied. In drafting
HB 359, research conducted by the DOL indicated that whenever a
witness was authorized by the U.S. Supreme Court to present
testimony by contemporaneous two-way video conference, those
same criteria had been satisfied.
1:48:29 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 6, to
change the language of Section 25's proposed new Rule 38.3(b) by
adding the word, "only" between the words, "witness" and "if",
such that subsection (b) would then in part read, "the court may
authorize the contemporaneous two-way video conference testimony
of a witness only if ...". There being no objection,
Amendment 6 was adopted.
1:49:49 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 7,
to replace the word "lives" with the word "is" in Section 16's
proposed new AS 12.47.100(h); subsection (h) would then in part
stipulate that in a hearing to determine competency, a witness's
testimony by contemporaneous two-way video conference may be
allowed if the witness is in a place from which people
customarily travel by air to the court.
REPRESENTATIVE KELLER objected.
REPRESENTATIVE GRUENBERG indicated that Amendment 7 would
address situations in which the witness happens to be out of
town on the day of the defendant's competency hearing.
REPRESENTATIVE KELLER cautioned against making the language of
proposed AS 12.47.100(h) too broad.
REPRESENTATIVE GRUENBERG indicated that under Amendment 7, the
witness's location, rather than his/her living situation, would
become the determining factor for the court.
REPRESENTATIVE KELLER removed his objection.
CHAIR GATTO, after ascertaining that there were no further
objections, announced that Amendment 7 was adopted.
1:52:43 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 8, to add the phrase, ", for good cause shown," after
the words, "the court may" in Section 16's proposed new
AS 12.47.100(h); subsection (h) would then in part read, "the
court may, for good cause shown, allow the testimony of a
witness ... if the witness is in a place from which people
customarily travel by air to the court".
REPRESENTATIVE HOLMES objected for the purpose of discussion.
MS. MEADE questioned who would have to show good cause: the
witness, the defendant, or the DOL?
REPRESENTATIVE GRUENBERG posited that it would be the party
seeking permission for the witness to testify remotely by
contemporaneous two-way video conference.
MS. MEADE questioned whether, under Conceptual Amendment 8, good
cause would mean something beyond the fact that the witness was
in a place from which people customarily travel by air to the
court.
REPRESENTATIVE GRUENBERG opined that it would depend on the
particular situation.
MS. MEADE indicated that she takes no position on Conceptual
Amendment 8.
MR. SVOBODNY, in response to comments, indicated that case law
already addresses the issue of "good cause", and expressed
concern that Conceptual Amendment 8 could result in competency
hearings being unnecessarily delayed, and that it would gut
Section 16.
REPRESENTATIVE HOLMES offered her belief that the court isn't
going to allow anyone to take undue advantage of Section 16's
proposed procedure, and opined that Conceptual Amendment 8 would
create inconsistencies in Alaska law.
MR. SVOBODNY concurred.
MS. MEADE, in response to comments, suggested - as an
alternative to Conceptual Amendment 8 - adding the phrase, ", in
its discretion," after the words, "the court may" in Section
16's proposed new AS 12.47.100(h); subsection (h) would then in
part read, "the court may, in its discretion, allow the
testimony of a witness ... if the witness is in a place from
which people customarily travel by air to the court".
REPRESENTATIVES HOLMES and GRUENBERG expressed favor with that
suggestion.
REPRESENTATIVE GRUENBERG then withdrew Conceptual Amendment 8.
2:08:45 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Conceptual
Amendment 9 [as suggested by Ms. Meade].
REPRESENTATIVE HOLMES objected for the purpose of discussion,
and then removed her objection.
MR. SVOBODNY relayed that Conceptual Amendment 9 addresses his
concern.
CHAIR GATTO, after ascertaining that there were no further
objections, announced that Conceptual Amendment 9 was adopted.
2:09:26 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 10, to add the phrase, ", except the defendant" after
the words, "may allow the testimony of a witness" in
Section 16's proposed new AS 12.47.100(h); subsection (h) would
then in part read, "allow the testimony of a witness, except the
defendant, including the psychiatrist or psychologist who
examined the defendant, to testify".
REPRESENTATIVE KELLER objected.
MR. SVOBODNY, in response to a question, pointed out that in
such proceedings the defendant has the right to be present in
the courtroom but isn't required to be; the defendant may
instead prefer to provide testimony by contemporaneous two-way
video conference. The concern, he relayed, is that under
Conceptual Amendment 10, the defendant could be precluded from
doing so.
REPRESENTATIVE GRUENBERG withdrew Conceptual Amendment 10.
REPRESENTATIVE GRUENBERG, referring still to Section 16's
proposed new AS 12.47.100(h), questioned whether the phrase,
"including the psychiatrist or psychologist who examined the
defendant" ought to be changed to instead say, "including any
psychiatrist or psychologist who examined the defendant".
MR. SVOBODNY suggested that perhaps changing the wording from
"the psychiatrist" to "a psychiatrist" would be more
grammatically correct. Such a change would also clarify that
there could be more than one such psychiatrist or psychologist.
2:12:56 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 11 [as
suggested by Mr. Svobodny]. There being no objection,
Amendment 11 was adopted.
REPRESENTATIVE HOLMES - referring to Sections 16 and 25, both
addressing testimony of a witness by contemporaneous two-way
video conference - questioned whether Section 25 should be
amended in the same fashion as Section 16 was with regard to the
phrase, "the court may, in its discretion,".
MS. MEADE said that although the ACS would not object to such a
change, language in both sections stipulates that the court
"may" allow or authorize such testimony, and the word, "may"
already implies discretion.
REPRESENTATIVE HOLMES [made a motion to adopt Amendment 12,] to
change the language of Section 25's proposed new Rule 38.3(b) by
adding the phrase, ", in its discretion," between the words,
"the court may" and the word, "authorize" such that
subsection (b) would then in part read, "the court may, in its
discretion, authorize the contemporaneous two-way video
conference testimony of a witness". There being no objection,
Amendment 12 adopted.
[HB 359, as amended, was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 50 fiscal note.pdf |
HJUD 3/16/2012 1:00:00 PM |
HB 50 |
| HB 359 Amendment 3.pdf |
HJUD 3/16/2012 1:00:00 PM |
HB 359 |
| HB 359 Amendment 4.pdf |
HJUD 3/16/2012 1:00:00 PM |
HB 359 |
| HB 359 Amendment 5.pdf |
HJUD 3/16/2012 1:00:00 PM |
HB 359 |
| HB359CS(JUD)-DPS-R&I-03-14-12.pdf |
HJUD 3/16/2012 1:00:00 PM |
HB 359 |
| HB 50 Amendment 1.pdf |
HJUD 3/16/2012 1:00:00 PM |
HB 50 |
| HB 50 Amendment 2.pdf |
HJUD 3/16/2012 1:00:00 PM |
HB 50 |