Legislature(1997 - 1998)
04/09/1997 01:30 PM Senate JUD
| Audio | Topic |
|---|
* 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
JIM SOURANT , legislative assistant to Representative Porter,
sponsor of the measure, and ANNE CARPENETI , Assistant Attorney
General, Department of Law (DOL) took the witness stand. Mr.
Sourant noted Janice Lienhart, the recipient of the National Crime
Victim Service Award, was available to testify from Anchorage via
teleconference and commented on her outstanding service in the area
of crime victims' rights in the State of Alaska. He then explained
HB 9 is the statutory realization of a constitutional amendment
adopted two years ago. Article 1, Section 24, of that amendment
contains a list of the rights of crime victims to ensure that those
rights are elevated to at least that of criminal defendants. The
part of HB 9 that is most relevant to the constitutional amendment
is the idea that crime victims have the right to be in the
courtroom at all times that the criminal defendant, or juvenile if
a juvenile proceeding, has the right to be in the courtroom -
notwithstanding the fact that the victim may be later called upon
as a witness. Sections 1 and 2 modify Alaska Evidence Rule 615,
the exclusionary rule, and recognize the right of a crime victim to
be in a courtroom at any time the criminal defendant is present.
The State of New Hampshire has modified its equivalent of Alaska
Evidence Rule 615 without a constitutional amendment. That
modification was upheld by the New Hampshire Supreme Court. In
March, 1997 Congress enacted the Victims' Rights Clarification Act
of 1997. That bill is consistent with HB 9 regarding a victim's
right to be present in the courtroom, and is retroactive so that
the victims of the Oklahoma City bombing can be present during that
trial. He asked Ms. Carpeneti to comment on the other substantive
provisions of HB 9.
Number 105
MS. CARPENETI commented that prior testimony in other committees on
modification of the exclusionary rule has revealed concern about
the possibility that the victim's testimony might be tainted after
listening to other witness' testimony. She noted the victim's
story has been previously recorded in several ways; by a
description of events to police officers and in Grand Jury
testimony so that it is on record before he/she testifies at a
trial. The precaution against tainting testimony is not very
strong in relation to constitutional requirement.
MS. CARPENETI gave the following sectional analysis of the
remainder of HB 9. Sections 3 through 6 deal with exemptions upon
levy for assets that provide that a person's liquid assets and
wages are free from being levied by creditors. Those sections
exempt victims who have an order for restitution so that the levy
can occur to fulfill restitution obligations.
Section 7 makes a minor change in the definition of "incapacitated"
in sexual assault statutes. To establish that the victim was
incapacitated will require proof that the victim was unable to
appraise the nature of the act or was physically unable to express
unwillingness. Ms. Carpeneti thought that it should be clear that
the State has to prove one or the other, but not both.
Section 8 creates a class A misdemeanor for interfering with the
report of the crime of domestic violence. Often, in domestic
violence cases, a phone is pulled out of the wall to prevent the
victim from calling police. That action escalates the danger of
the situation and makes the victim unable to communicate with
anyone who might help.
Sections 9 through 12 bring Alaska's bail statutes into line with
current court practice and constitutional requirements. Judges are
now considering the safety of the victims when ordering bail or
setting conditions of release.
Section 13 limits the situations where the court can order a mental
examination of the victim at the request of the defendant. Mental
examinations of victims should be ordered in very rare
circumstances because it is such an invasion of one's dignity.
Last year the Legislature passed laws which limited the ability of
representatives of the defense team to contact the victim. DOL's
Special Prosecutions Office attorneys thought about situations in
which a victim's mental examination might be relevant and those
situations are excepted, otherwise Section 13 provides that a
psychiatric examination should not be ordered.
Section 4 amends the three-judge panel statute. In Alaska's
sentencing laws, a three-judge panel is available to a defendant or
the State if, in certain circumstances, the presumptive sentence
does not fit the particular case. The three-judge panel has more
power than a sentencing court when a presumptive sentence is
required by statute. Section 4 provides that if the panel
supplements the record by taking testimony from the defendant, the
victim may also testify.
Section 15 amends the section dealing with crime victims' rights
and brings notice requirements from other titles into Title 12 so
that most of the rights to notice are located in one title.
Section 16 provides that an application for compensation from the
Violent Crimes Compensation Board (VCCB) and supporting data is
confidential. That is the current practice but sometimes the Board
has to defend a subpoena or request and has asked that the statute
clarify that the information is not public.
Section 17 deals with the right to be present at trial. Section 18
provides that a victim may testify telephonically before a Grand
Jury under the same circumstances that other witnesses are allowed
to testify telephonically.
Section 19 amends the rules of evidence to allow the use of
evidence of prior acts of domestic violence in the prosecution of
a case. The reason for this change is that frequently domestic
violence cases are prosecuted without a witness to the offense.
The victim may have recanted or refused to cooperate out of fear,
or for many other reasons. More often, the police officer who was
at the scene testifies to what occurred.
Ms. Carpeneti concluded the sectional analysis by saying the
remaining provisions deal with the exclusionary rule of witnesses
as they relate to victims.
MS. CARPENETI stated DOL has suggested an amendment to
Representative Porter who agrees to it if the committee will
consider it at this point. The amendment provides specifically
that in a case where an indictment is dismissed by the Trial Court
and the State intends to, or does, appeal the dismissal, that the
release of the defendant be according to the rules of pre-trial
release. Recently an order by the Supreme Court unconditionally
released a defendant after an indictment had been dismissed by the
Superior Court and the State appealed the dismissal with the Court
of Appeals. This same procedure using pre-trial release rules is
used by the federal court system.
Number 245
SENATOR PARNELL noted Section 19, regarding admissibility of
evidence in domestic violence cases, amends Evidence Rule 404. He
asked whether evidence of prior crimes is admissible in any other
circumstances.
MS. CARPENETI said there are other circumstances where prior bad
acts are admissible to establish the State's case, for example
sexual abuse of a minor under certain circumstances. The general
rule is one cannot use prior bad acts to establish propensity to
prove the person acted in accordance with how he/she behaved in the
past, but there are a number of exceptions.
SENATOR PARNELL asked if this evidence would be used to prove one's
guilt at this time, and whether it could be used to secure
applications for restraining orders. He questioned whether it
applies strictly to convictions of crimes involving domestic
violence.
MS. CARPENETI answered the State would have to make a preliminary
showing to the Court that the information was still relevant; the
evidence could not automatically be introduced.
SENATOR PARNELL asked if, in the area of sexual abuse, and evidence
of sexual abuse, is the wording in 404 evidence of sexual abuse or
is it evidence of conviction. MS. CARPENETI thought it was
evidence of prior bad acts.
SENATOR PARNELL questioned whether a court order can override
Section 16, regarding the confidentiality of records before the
VCCB. MS. CARPENETI answered that provision was added to the bill
because records have been subpoenaed and the State has to litigate.
She thought under certain circumstances one could ask the court
because there might be reasons unrelated to this specific issue,
but generally, the records should be kept confidential.
SENATOR PARNELL asked about the current problem. MS. CARPENETI
said people are asking for subpoenas and DOL has to fight the
request. DOL has won every time so far. SENATOR PARNELL asked if
the intent of the sponsor is that a court order could override this
provision in certain circumstances. MS. CARPENETI said she would
have to know what circumstances because the provision is clear the
records are confidential.
SENATOR PARNELL asked why, as a policy matter, we would want to
never allow those records to be reviewed. MS. CARPENETI replied
the applications contain medical records and personal information
from victims.
SENATOR PARNELL asked if there is ever a time when the State ends
up in a civil proceeding between the two and the evidence is
necessary for impeachment purposes for the victim. MS. CARPENETI
stated she is not familiar with any such situations, and does not
believe any have arisen. SENATOR PARNELL clarified he understands
the importance of protecting the information, but is trying to
understand the intent with respect to the scope of the protection.
MS. CARPENETI answered the intent is to avoid litigating every time
someone asks for the records. When people ask for a subpoena, DOL
opposes the motion and has prevailed, but DOL wants to avoid
litigating every time someone wants to get the records. She agreed
this provision would supersede the court's decision.
Number 326
PAUL SWEET testified via teleconference from Mat-Su in opposition
to HB 9. He asked whether a victim will be able to testify at an
appeals case in which the defense is arguing that the sentence was
too stiff. MS. CARPENETI clarified when a person appeals a
sentence, the Court of Appeals makes the decision based on the
record before it; it does not take more testimony from anyone.
Both the State and the defendant present their respective
positions. In such cases, the State designates, as part of the
record on appeal, any statement that the victim has made in terms
of the sentence given to the Court prior to the presentence report
so the victim's point of view regarding the appropriate sentence is
on the record in every case.
CHAIRMAN TAYLOR added the Appellate Court should be able to do one
of three things: either affirm the sentence handed down by the
judge, reduce the sentence, or increase it. If an increase was a
possibility, many specious appeals would not occur. MR. SWEET
commented that every time the perpetrator has a right to appeal,
the victim should have the same right.
Number 364
CONNIE TROMBLE testified via teleconference from Bethel and noted
her support for HB 9.
JANICE LIENHART testified via teleconference from Anchorage in
support of HB 9 and made the following remarks. The intent of the
constitutional amendment is to allow victims to attend all hearings
that the defendant can attend because the victim is kept from so
much information from the first point of prosecution: the police
cannot give any information until the trial. When a victim is not
allowed to attend the hearing, he/she does not get answers or
closure. She believes victims will be as honest as they can
because they want to see justice served. HB 9 will put teeth in
the constitutional amendment and positively impact families who now
have to live through the nightmare of having no information about
the criminal justice process and are unable to participate. She
noted she has been trying to help a woman in Texas who witnessed
the murder of her daughter. Because this woman was a witness she
is not allowed to attend the trial which is very difficult for her.
Number 392
LINDA THOMAS , an attorney with Rex Lamont Butler & Associates in
Anchorage, testified in opposition to the provisions that eliminate
the exclusionary rule. One of the most important tools to protect
innocent persons wrongfully accused from being wrongfully convicted
is the tool of cross-examination: it is fundamental to a
defendant's Sixth Amendment right to confront witnesses, and to
effective assistance of counsel. This is especially true in sexual
assault and domestic violence cases where the primary evidence is
the complainant's identification or an accuser's testimony and the
only defense may be impeachment through cross-examination.
Elimination of the exclusionary rule will weaken that tool and it
eviscerates fundamental constitutional rights designed to protect
those accused of crimes. For whatever reason, we know that there
are some people who falsely accuse others, sometimes when
relationships are ending they use it as a means to seek financial
leverage or power in a custody dispute, or maybe out of revenge to
a lover or even as an alibi for their own sexual conduct, for
example sometimes in teenagers' unwanted pregnancies. If a false
accuser is allowed to stay in the courtroom, he or she is given an
opportunity to hear all other testimony and they can clean up any
inconsistencies in their testimony which might have been revealed
on cross examination. If a false accuser is permitted in a
courtroom, they get an opportunity to dot their i's and cross the
t's on all their lies. According to Linda Farenstein [ph], former
New York District Attorney and director of Manhattan's Sex Crimes
Prosecution Unit, who for 20 years put sex offenders away, found
that 60 percent of child sex abuse allegations against men were
false and 50 percent of all rape allegations were false. The final
analysis of a United States Air Force study in 1985 found 60
percent of the original rape claims to be false. In two reports in
Canada, 50 percent of child sex abuse allegations were found to be
false with the figure climbing to 70 percent when a custody fight
was raging. With regard to how this plays out in sexual assault
cases and domestic violence cases in Alaska, we are finding that if
a complainant makes a false allegation of sexual assault, and later
tries to recant, many prosecutors are not permitting the
recantation, instead, in a rather neo-paternalistic way, they hire
expert witnesses to testify that the recantation is evidence of a
cycle of abuse. There is an underlying premise that men abuse
women unless proven otherwise. The obvious conclusion is that the
State does not believe there is any such thing as a false
allegation, yet for eight consecutive years since 1989, the FBI,
through DNA testing, found that 25 percent of the sexual assault
cases ready to go to trial were based on false accusations. In a
research report by the Department of Justice, called Convicted by
Juries, Exonerated by Science, 28 cases were studied, where men
were later exonerated by DNA test results. Most had been convicted
based primarily on victim identification. In the first case a
woman was seeking an alibi for her teenage pregnancy. These men,
convicted on false accusations, faced sentences ranging from eight
years to the death penalty and served an average of 12 years in
jail. Every man is vulnerable to false accusations and if it
happens in this State, the defendant needs to defend against the
State's theories of domestic violence and recantation, against its
resources, and will have to rely on the cross examination of a
complainant. If HB 9 passes, it will permit the accuser to hear
all of the testimony. She urged the committee not to eliminate the
exclusionary rule, and to keep the hysteria in check.
Number 457
ROBERT BUTTCANE , Division of Family and Youth Services (DFYS),
Department of Health and Social Services, testified in favor of HB
9, and specifically to Section 17. DFYS has found that allowing
victims greater access to the juvenile justice system has been a
very effective rehabilitative tool.
JAYNE ANDREEN , Director of the Council on Domestic Violence and
Sexual Assault (CDVSA), testified in support of HB 9. In response
to Senator Parnell's questions about the Violent Crimes
Compensation Board, she noted it is her understanding that the
records obtained by VCCB as part of the compensation process are
protected under federal guidelines in the Victims' of Crime Act.
Section 16 brings Alaska statute into compliance with that Act and
will reduce the number of subpoenas that the VCCB and DOL have to
deal with.
Number 471
SENATOR PEARCE asked Ms. Andreen to respond to Ms. Thomas'
testimony.
MS. ANDREEN said she was not aware of all of the studies Ms. Thomas
cited, however she is aware of the U.S. Air Force report which
determined that 65 percent of sexual assault victims lie or make
false accusations. That report was based on a checklist used to
determine the victim's credibility and looked at their social
backgrounds, economic status and employment histories. Ms. Andreen
noted as a former victim of sexual assault, she took the test which
determined she was lying. Consequently, she does not place any
value in that report, whatsoever. In addition, FBI data continues
to show that sexual assault reports do not have a higher false
reporting rate than any other violent crime.
Number 484
CHAIRMAN TAYLOR advised that DHSS has distributed consistent
reports concerning allegations of child sexual abuse or physical
abuse, and continued reports from the Bar Association and others
that deal with family law matters, show the extensive use of false
accusations as a leverage tool in divorce actions.
MS. ANDREEN responded that in her 11 years as a victim service
advocate and service provider she is aware of those concerns, but
has found that in dealing with child sexual abuse cases and the
mothers of the children, more often than not the advocates file
reports rather than the mothers. She noted she is aware of a small
number of cases in which the service provider felt the mother was
overreacting.
Number 493
BARBARA BRINK , Acting Director of the Public Defender Agency,
stated that no victims' rights are truly enhanced when the fact-
finding process is made less accurate. She expressed concern that
some of the provisions in HB 9, particularly Section 13 which bans
psychiatric evaluations and the provision that allows the victim's
presence at all stages of the proceeding, will affect the jury's
ability to get the information it needs to assess a case in a fair
manner. The exclusionary rule simply says the judge may exclude a
victim who also witnessed the events to ensure that victim's
testimony is preserved as accurately as possible. For many victims
the exclusionary rule does not apply. Victims can attend every
part of the proceeding as long as they were not attendant at the
event that the jury is trying to put back together after the fact.
Second, a victim's role in a case is different than other parties'.
The State is a party because it can obtain a conviction and is
responsible for enforcing society's mores. It has something to
gain or lose. The defendant is a party because the individual's
liberty is at stake. Although the victim has an interest and the
desire to understand what is going on, and a desire to not have
things happen in secrecy, the victim is not a stakeholder because
he/she does not have something to lose such as life or liberty.
The fact that the victim is a witness is more important than
his/her role as a victim. The fact that they observed and
perceived, and have the ability to recall what happened, is their
most important role. The exclusionary rule allows a judge to
preserve that as truthfully as possible.
Ms. Brink said unlike Ms. Thomas who is concerned about people who
create false allegations and give false testimony, she is concerned
about those witnesses who have no axe to grind, who are simply
there to testify and tell the truth. The ability to hear what
other witnesses say about what happened affects them in a very
subconscious and difficult to ascertain fashion. The human brain
is not like a videotape or audiotape, it does not record things 100
percent, so the legal system tries to preserve recollections and
not taint them. Even though witnesses have given statements in the
past, and might have testified in front of a Grand Jury, that is
not what the jury is listening to; the jury is trying to assess how
accurate the witness' memory is based on their testimony. Ms.
Brink repeated she is concerned about those witnesses who are
honestly trying their best to recall events accurately and does not
believe another hurdle should be thrown in their path. It will
give the jury another piece of the puzzle to assess: how much of
the testimony is because of what the victim heard other witnesses
say. She discussed a recent Scientific American television program
on human memory which compared verbal accounts of an event before
and after seeing a photograph. The accounts, after seeing the
photograph changed substantially and demonstrated that every
person's memory was impacted by what was seen in the photograph.
That is why police interview people who witnessed an accident
individually. The exclusionary rule is simply a tool that
recognizes how the brain works and applies that knowledge in the
courtroom setting.
Ms. Brink disagreed with previous testimony about the new federal
rule and how it applies to the Oklahoma City bombing case. The new
rule only refers to witnesses who are going to testify at the
penalty phase; it does not give the green light to those witnesses
who are trying to put the events together. She urged the committee
to not adopt the change to the exclusionary provision and added
that a prosecutor can eliminate the whole problem by calling a
witness to testify first in the proceeding.
Ms. Brink discussed the psychiatric evaluation prohibition in
Section 13 and agreed 100 percent with Ms. Carpeneti that
psychiatric evaluations of victims should only be done in the
rarest of circumstances, as is current practice. Right now, as a
criminal defense lawyer, in order to get a psychiatric evaluation
she must prove to the judge two things: first that the victim, who
is claiming the event happened, has a definite psychological or
psychiatric condition that is directly related to his/her ability
to tell the truth, and second that the victim's testimony is not
corroborated by anything or is otherwise untrustworthy. It is only
in the rarest of rare circumstances that such an examination is
allowed. Even the Court of Appeals has stated it is not going to
let anyone abuse this process. Everyone has to meet that very
difficult standard to prove the examination will yield relevant
evidence and not harass the victim. She recounted the following
case. A man was accused of sexual assault and admitted that he had
engaged in the alleged sexual conduct which he thought was
consensual. The victim, who said it was forced, had a psychiatric
history. She was psychotic and when she did not take medication,
heard voices and said she was directed to do things by people who
did not exist. Her ability to recall and perceive the events in
question was very suspect. She had made false accusations of
people in the past, including a Supreme Court Justice. Under this
rule, the jury will not hear any of that and will have to decide
whether the accusation is true without knowing what the accuser's
true state of memory is.
Number 562
SENATOR PARNELL asked how often a mental examination of the victim
is requested by the defense in a sexual assault case. MS. BRINK
said in her nine years of trying cases, she has requested two
examinations and was denied both times. She said she was aware of
a request granted in a Fairbanks case and in the case she just
described.
CHAIRMAN TAYLOR asked if AS 11.41 is the rape statute. MS. BRINK
replied AS 11.41.400 pertains to sexual assault; AS 11.41 covers
all crimes against people.
CHAIRMAN TAYLOR stated he would entertain a motion to delete
Section 13 regarding mental examinations. SENATOR PARNELL made the
motion. There being no objection, Section 13 was deleted.
Number 587
CHAIRMAN TAYLOR informed committee members there is a second
amendment in committee members' packets, submitted by the sponsor,
which pertains to release pending appeal, as explained by Ms.
Carpeneti. There being no objection to the adoption of amendment
SENATOR ELLIS asked for further elaboration on the change to the
exclusionary rule. CHAIRMAN TAYLOR noted he is concerned about
changing it and requested research on the subject which revealed
nothing new. He said if an attorney has a weak witness, and a
whole battery of strong witnesses, the attorney can put the strong
witnesses on first and by the time the weak witness has watched
them testify, he/she "learns the ropes" and becomes stronger. If
the witness is not allowed to watch others testify, his/her
strength on the witness stand will not change.
TAPE 97-27, SIDE B
SENATOR ELLIS asked if there is any reasonable way to find a middle
ground to the exclusionary rule change or whether it is an all or
nothing consideration. MS. CARPENETI responded it is unusual to
even be discussing the exclusionary rule because the constitutional
amendment on victims' rights that was adopted by a large percentage
of the population mandates what HB 9 does. CHAIRMAN TAYLOR added
that the public was sold the victims' rights amendment to the
Constitution without much, if any, discussion or debate about the
exclusionary rule. Discussion centered around victims' rights to
restitution and to be informed, etc. He supported the amendment
but after recently rereading it, he was surprised to find the
number of aspects of victims' rights that were never discussed. He
said he believes this aspect of the exclusionary rule has already
been run roughshod by that vote, and at this point it is up to the
Supreme Court to decide whether they are going to provide for that
aspect of human nature that we all know to exist.
MS. CARPENETI noted that although litigation may occur regarding
the defendant's right to a fair trial, the Constitution now
specifically provides that the victim has the right to be present.
CHAIRMAN TAYLOR concluded he does not believe there is a way to
find a middle ground at this point because the Constitution has
already been amended.
SENATOR PARNELL moved CSHB 9 (JUD) from committee with individual
recommendations. There being no objection, the motion carried.
| Document Name | Date/Time | Subjects |
|---|