Legislature(2003 - 2004)
03/31/2004 08:05 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 349(JUD)am-ILLEGALLY OBTAINED EVIDENCE/EVID RULE 412 REPRESENTATIVE RALPH SAMUELS, co-sponsor of HB 349, explained to members that this measure will stop people from lying with impunity on the witness stand. It is fair to victims and the system as a whole to try to get the truth and justice out up front. It will align Alaska statute with all but two states: Hawaii, and West Virginia. He noted that Senator French has a proposed amendment, which he fully supports. SENATOR FRENCH moved to adopt Amendment 1, which reads as follows. A M E N D M E N T 1 OFFERED IN THE SENATE By Senator French TO: SB 349 Page 2, lines 11-14 Delete all material Page 2, line 11 Insert (B) any criminal action, to impeach the defendant, co-defendant, or a former defendant in the case if the prosecution shows that the evidence (i) Was the product of a statement illegally obtained in violation of the right to warnings under Miranda v. Arizona, 384 US 436 (1966) and (ii) Was not obtained in substantial violation of the rights of the defendant, co-defendant, or a former defendant in the case, as appropriate. SENATOR THERRIAULT objected for the purpose of discussion. SENATOR FRENCH informed members that Amendment 1 came about because he and another committee member were a bit hesitant about the section of the bill that deals with other evidence illegally obtained. His concern is that phrase could be interpreted to apply to not only Miranda violations, but also to violations of the Fourth Amendment. He fears that a police officer could illegally seize a piece of evidence in violation of a person's Fourth Amendment right and use that evidence to impeach a witness whose testimony was contrary to the evidence. After discussing that point with Mr. Branchflower, he came up with Amendment 1. Amendment 1 restates that the evidence illegally obtained must be obtained as a result of a statement taken in violation of Miranda. In other words, the evidence has to go right back to the statement made. He summarized: So the amendment basically says you can impeach someone with evidence illegally obtained if it was the fruit of the poisonous tree, so to speak, and the tree is the statement taken in violation of Miranda. So it is sort of a clean up, if you will, or a reiteration, if you will, of what page 1, lines 10 and 11 say.... REPRESENTATIVE SAMUELS affirmed: If you told somebody in the statement that was suppressed - I hid the knife here - if the statement comes back in, then the knife comes back in. But if you go and you search somebody's trunk and you find the cocaine in there and you should have never searched the trunk, then that stays out. And that was the intent all along and, as you all know, when you stare at something too long, that's the way that I always read it so this clarification is where the bill was intended to go all along and I think it should probably ease some of the fears Senator Ogan had on the evidentiary portions of things, hopefully, so I fully support the amendment. SENATOR OGAN responded that he appreciates Senator French's work but pointed out that Amendment 1 says, "was not obtained in substantial violation of the rights of the defendant." He cautioned that Amendment 1 says the state can violate the rights of a defendant but not much. He said he had a long talk with the bill sponsor and has wrestled with this bill all session. He stated he is not comfortable violating citizens' constitutionally protected rights that have been won with the blood of Americans over a few hundred years. He acknowledged that a lot of incredibly frustrating and unfair things happen to good people because a police officer does not do his job and people are not brought to justice. He stated he will not object to Amendment 1 because he believes it makes the bill better, but it does not fix the bill. REPRESENTATIVE SAMUELS said the term, "substantial violation" is in the existing statute. CHAIR SEEKINS said he is only willing to look at that simply because that language would be used to impeach when it is obvious that a person has perjured himself. SENATOR OGAN noted that he had only seconds to review the amendment and asked for further explanation. SENATOR FRENCH said it is important to remember that this scenario would only arise in the impeachment arena, where a defendant willingly takes the stand at his own trial or as a co- defendant or former defendant. If the defendant takes the stand and says something that directly contradicts a statement given to police before the trial, and the statement given to the press was suppressed because of a Miranda violation, the prosecution could use that statement to impeach the defendant. He furthered: If he tells the police at the scene I stabbed my wife to death with this bloody knife, and it turns out that they forgot to give him his Miranda rights or they left out one sentence of his Miranda rights and that statement was suppressed, and he gets to trial on a murder case, if he doesn't take the stand, the statement never comes in and the knife doesn't come in because it's been suppressed because of the Miranda violation. Okay? But if he does take the stand and he says, I didn't stab my wife, my neighbor came in and stabbed my wife - I was there defending her, that's why I was covered in blood. Okay, if he says that on the stand, having told the police at the scene I stabbed her to death with this knife, then, because he's given a direct contradictory statement to the one he gave to the police, you can impeach him with the statement he gave the police and you can bring out the bloody knife and say, moreover, here's the knife he used to stab her with and its got his bloody fingerprints on it. So it's only to impeach a statement that was suppressed because of Miranda. He explained that the first part of Amendment 1 deals with impeaching a statement given in violation of Miranda, while the second part is a "guard rail" so that the statement cannot be used to impeach if it was illegally obtained for more than a Miranda right violation. SENATOR OGAN asked what the language on lines 12 through 14 will do. SENATOR FRENCH said it clarifies that the illegally obtained evidence must have been obtained as the result of a statement taken in violation of Miranda. It could not have been obtained under a Fourth Amendment violation. SENATOR OGAN asked Senator French how that would apply if the defendant requested an attorney but the defendant answered questions asked by the police while waiting for the attorney to arrive. SENATOR FRENCH replied if the judge ruled the defendant's Miranda rights were violated and suppresses the statement, the statement would never come into court unless the defendant takes the stand at his trial and tells a contradictory story. SENATOR THERRIAULT asked if the impeachment proceeding is separate from the trial. SENATOR FRENCH said it would happen in the context of the trial when the defense attorney called the defendant to the stand. SENATOR THERRIAULT withdrew his objection to Amendment 1, therefore it was adopted. MS. TAMARA DE LUCIA, Office of Victims' Rights, stated strong support for Amendment 1 because it will give defendants no incentive to perjure themselves on the stand in a criminal trial. It is aimed strictly at allowing "the fruit of the poisonous tree" evidence in to impeach in addition to actual suppressed statements. It will also bring Alaska in line with federal precedence. CHAIR SEEKINS announced that with no further participants, public testimony was closed. SENATOR THERRIAULT moved SCS CSHB 349(JUD) from committee with individual recommendations and attached fiscal notes. CHAIR SEEKINS noted that without objection, the motion carried.
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