Legislature(2003 - 2004)
03/22/2004 08:04 AM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 397-DEFENSE CONTACTS WITH VICTIMS & WITNESSES
MS. VANESSA TONDINI, staff to Representative Lesil McGuire,
sponsor of HB 397, explained that the package of victims' rights
legislation, of which HB 397 is part, rests on the premise that
victims and witnesses to violent crimes are unwillingly thrust
into the legal system. They did not ask to be involved in a
legal case and are placed at risk of harassment.
TAPE 04-24, SIDE A
MS. TONDINI explained that the potential harms increase when the
victim or witness is a minor and when the crime is a sexual
offense. HB 397 is also known as the Brooke Act, in honor of one
of Representative McGuire's constituents, who was the victim of
a rape. Her parents were unaware that a defense investigator had
contacted her for an interview, which she gave without the
guidance of her parents or an attorney.
MS. TONDINI informed members that HB 397 requires criminal
defense attorneys and investigators to first obtain the consent
of a minor's parent or guardian prior to conducting a tape
recorded interview with a minor sexual assault victim or
witness. The current law states when a defense attorney or
investigator speaks to a minor victim or witness and the
interview is not recorded, written authorization must first be
obtained from a parent or guardian. However, no such consent is
required if an interview is recorded. This loophole leaves
juveniles and parents in the dark. Current law embodies an
important provision that does not allow a defendant who is a
parent or guardian of a minor sexual assault victim or witness
to provide the authorization required by HB 397. She added that
statements obtained from a victim or witness in violation of
this statute are presumed inadmissible. To overcome the
presumption of inadmissibility, the defendant is required to
prove the statement is reliable, similar evidence is unavailable
from another source, and that failure to reduce the statement
would substantially undermine the reliability of the fact-
finding process and result in manifest injustice.
SENATOR THERRIAULT asked why Section 1 is necessary.
MS. TONDINI said it provides a short title of the act as a
courtesy to a constituent of Representative McGuire.
SENATOR THERRIAULT said although he understands a particular
case can trigger a new section of law, the legislature should be
careful about inserting people's names throughout the statutes
for no compelling reason.
SENATOR OGAN concurred with Senator Therriault.
9:50 a.m.
MS. BARBARA BRINK, Alaska Public Defender Agency, said as a
defense attorney, it is difficult to understand the negative
feelings projected her way. She pointed out that defense
investigations are not designed to harass, intimidate, or invade
a victim's privacy. The defense investigation is designed to
implement the right to counsel. HB 397 impairs the legitimate
investigative effort to right to counsel by adding more
requirements and rules. She explained that police do the best
job possible when interviewing witnesses at the scene, but those
witnesses might be alcohol impaired or under extreme stress.
Sometimes interviewing witnesses who did not come forward to the
police can reveal facts that lead the prosecutor to conclude
that the initial charges were inappropriate. That is not a
miscarriage of justice, it allows the prosecutor to make a
decision with more truthful information. On the other hand,
further information may lead the defense attorney to conclude
the defendant has nothing to gain by going to trial and should
settle the case. She asked the committee to consider the
positive aspects of defense investigation. HB 397 will make it
more difficult for defense attorneys to interview witnesses and
result in more indirect investigations. She said she appreciates
the fact that parents should not be left in the dark, but the
police and prosecutors have no obligation to inform parents
about contact with minor victims.
MR. STEVE BRANCHFLOWER, Office of Victims' Rights, told members
the defense in any criminal case has the right to do an
investigation but that investigation is much different than a
police investigation. The police start out in the dark. They do
not know all or any of the facts about who is responsible. By
the time a person is charged, the police have often solved the
case. When a person is charged, the defense has a right to seek
copies of police reports, lab reports, and statements of the
victims and witnesses. Therefore when the defense starts its
investigation, it knows what is in the district attorney's file
and is not looking for evidence of what occurred. The defense is
looking for evidence to create doubt. The most convincing way to
do that is to obtain a tape-recorded statement from a victim or
witness to impeach at a trial. HB 397 does not change the
requirement that information be provided to a witness or a
victim where the statement from the victim or the witness is not
recorded. It simply focuses on a third way of obtaining
information. This bill requires parental consent if the defense
wants to obtain information from the minor and that the minor be
informed of his or her rights. It will help parents to know what
is going on in their children's lives and to make smart
decisions. He stated support for the bill.
SENATOR FRENCH asked if, under current law, the defense wanted
to talk to a witness but not record the statement, the defense
would have to get written consent and notify the witness that he
or she is under no legal obligation to talk to the defense. HB
397 would simply change the law to say if the defense wants to
take a statement from a victim or witness in a sexual abuse case
that is going to be recorded, the same notification must be
given.
MS. TONDINI affirmed that is correct.
CHAIR SEEKINS announced that public testimony was closed.
SENATOR THERRIAULT moved to delete Section 1 [Amendment 1].
CHAIR SEEKINS announced without objection, Amendment 1 was
adopted.
SENATOR OGAN moved SCS CSHB 397(JUD) from committee with
individual recommendations and attached fiscal notes.
CHAIR SEEKINS announced that without objection, the motion
carried.
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