Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/27/2012 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 165 PRINCIP.& INC/PROBATE/UTMA/RETIREMT/ETC. TELECONFERENCED
Moved CSSB 165(JUD) Out of Committee
*+ SB 200 EYEWITNESSES AND LINEUPS TELECONFERENCED
Heard & Held
*+ SB 210 CRIMES AGAINST CHILDREN TELECONFERENCED
Heard & Held
+ HB 291 PUBLIC NOTICES POSTED AT POST OFFICES TELECONFERENCED
Moved HB 291 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
                SB 200-EYEWITNESSES AND LINEUPS                                                                             
                                                                                                                                
1:49:31 PM                                                                                                                    
CHAIR  FRENCH announced  the  consideration of  SB  200, "An  Act                                                               
establishing certain procedures related  to the identification of                                                               
suspects by  eyewitnesses to criminal offenses."  Speaking as the                                                               
sponsor, he  said this addresses  the way eyewitness  evidence is                                                               
handled  in  the  state. He  paraphrased  the  following  sponsor                                                               
statement:                                                                                                                      
                                                                                                                                
     Evidence provided  by eyewitnesses  is a vital  part of                                                                    
     many   criminal   investigations.  According   to   the                                                                    
     International  Association of  Chiefs  of Police,  some                                                                    
     77,000 people nationwide go to  trial each year because                                                                    
     eyewitness  testimony  is  arguably some  of  the  most                                                                    
     powerful evidence presented at a trial.                                                                                    
                                                                                                                                
     Since  1989, however,  DNA technology  has resulted  in                                                                    
     over 230  exonerations of people  who, on  average, had                                                                    
     served  12 years  in prison,  and 75  percent of  those                                                                    
     convictions     involved      misidentifications     by                                                                    
     eyewitnesses. When  innocent people are  convicted, not                                                                    
     only  do they  suffer  an enormous  injustice, but  the                                                                    
     real  perpetrator is  never caught  and  taken off  the                                                                    
     street.                                                                                                                    
                                                                                                                                
     Organizations  such as  the  American Bar  Association,                                                                    
     The  Police Foundation  and the  National Institute  of                                                                    
     Justice  have identified  procedures  that improve  the                                                                    
     accuracy  of  eyewitness identifications.  Senate  Bill                                                                    
     200  will require  law  enforcement  agencies to  adopt                                                                    
     specific  procedures  for  conducting  photo  and  live                                                                    
     lineups.  It  will  require the  Department  of  Public                                                                    
     Safety to create and administer  a training program for                                                                    
     law  enforcement officers  on  scientific findings  and                                                                    
     the  use  of   appropriate  methods  when  interviewing                                                                    
     eyewitnesses to  crimes. I urge  your support  for this                                                                    
     important  step toward  ensuring that  perpetrators are                                                                    
     caught,  and innocent  people are  screened out  during                                                                    
     eyewitness processes.                                                                                                      
                                                                                                                                
CHAIR FRENCH said the bill  compels a law enforcement agency that                                                               
conducts eyewitness  identification to adopt  specific procedures                                                               
that  meet  specific minimum  requirements.  This  is to  provide                                                               
flexibility  to accommodate  the broad  range of  agencies around                                                               
the  state. The  idea is  that before  there is  a photo  or live                                                               
lineup,  the  law enforcement  officer  shall  record a  detailed                                                               
description of the perpetrator,  provided in the eyewitness's own                                                               
words.  The  statement  must include  information  regarding  the                                                               
conditions  under  which  he or  she  observed  the  perpetrator,                                                               
including  location,  time,   distance,  obstructions,  lighting,                                                               
weather conditions, visual and  other impairments. When possible,                                                               
an independent  administrator shall conduct the  lineup, but when                                                               
that  is  not  practical  the  administrator  shall  use  neutral                                                               
procedures. Ideally,  the lineup is  conducted by an  officer who                                                               
does not know the identity of the suspect.                                                                                      
                                                                                                                                
CHAIR FRENCH  noted that Anchorage  attorney John Murtagh  sent a                                                               
letter to  suggest the  committee review  the eyewitness  case of                                                               
Tegoseak v. State. It was a  felony DWI case where the driver and                                                             
passenger   switched   places.  The   eyewitness   identification                                                               
procedures were upheld on appeal  but in discussing the case, the                                                               
court of appeals described another  case that clearly illustrated                                                               
the  problems  of  eyewitness   identification.  He  related  the                                                               
details of a rape case that was aired in a "60 Minutes" story.                                                                  
                                                                                                                                
The victim identified  her rapist in a photograph  lineup, a live                                                               
lineup  and during  two separate  trials. He  was convicted  both                                                               
times. Ten years  after the rape, DNA testing proved  that he was                                                               
innocent.                                                                                                                       
                                                                                                                                
The  court   of  appeals  commented  that   it  was  particularly                                                               
troubling  that the  victim's false  memory persisted  even after                                                               
she knew  intellectually that it  was inaccurate. The  court said                                                               
her false  memory was  clearly the  result of  the identification                                                               
procedures employed during the investigation,  and that the legal                                                               
tests for establishing the  validity of eyewitness identification                                                               
procedures needed to be reconsidered.                                                                                           
                                                                                                                                
1:57:23 PM                                                                                                                    
SENATOR COGHILL  asked if there were  Alaska statistics regarding                                                               
eyewitness identifications that were overturned by DNA testing.                                                                 
                                                                                                                                
CHAIR FRENCH  said the professionals  who would testify  may have                                                               
numbers to offer.                                                                                                               
                                                                                                                                
SENATOR  PASKVAN commented  on the  interesting dynamic  of human                                                               
error in eyewitness identification as well as false confession.                                                                 
                                                                                                                                
1:59:04 PM                                                                                                                    
SENATOR MCGUIRE joined the committee.                                                                                           
                                                                                                                                
SENATOR  WIELECHOWSKI   asked  what  would  happen   if  the  law                                                               
enforcement officer  didn't record  all the  relevant information                                                               
that was called for in Section  1. For example, what would happen                                                               
if the officer neglected to record the weather conditions?                                                                      
                                                                                                                                
CHAIR FRENCH  said he  did not  believe that  would automatically                                                               
exclude the evidence.                                                                                                           
                                                                                                                                
SENATOR  WIELECHOWSKI asked  two questions;  how was  independent                                                               
administrator defined  and what would  the procedure be  in rural                                                               
settings.                                                                                                                       
                                                                                                                                
CHAIR FRENCH  said the term was  defined on page 2,  lines 19-21,                                                               
and it basically  means an officer who was involved  in the case.                                                               
Page  2, lines  3-6, give  guidance when  that is  impracticable,                                                               
stating that a neutral procedure is to be used.                                                                                 
                                                                                                                                
2:02:09 PM                                                                                                                    
STEPHEN  SMITH,   Deputy  Chief   of  Police,   Anchorage  Police                                                               
Department (APD),  Anchorage, AK,  cautioned against  placing the                                                               
new  eyewitness identification  proceedings in  statute. He  said                                                               
that APD's procedures  were not unlike what was  suggested in the                                                               
bill, but Sec. 12.50.300(a)(1) gives  more detailed guidance than                                                               
the APD  procedures for  a photo lineup.  He agreed  with Senator                                                               
Wielechowski's point and expressed  appreciation that the sponsor                                                               
said  that   leaving  out  some   of  the   information  wouldn't                                                               
automatically  nullify  the   identification.  Rather,  it  would                                                               
create opportunity for  attack by the defense.  He continued that                                                               
the requirement  of an independent  administrator would  impose a                                                               
minor burden.  He concluded  that APD could  make this  work, but                                                               
had reservations  about rooting  reform of  this nature  in state                                                               
law at this point.                                                                                                              
                                                                                                                                
SENATOR  PASKVAN  asked  if departments  across  the  state  used                                                               
different identification procedures for photo lineups.                                                                          
                                                                                                                                
DEPUTY  CHIEF SMITH  replied he  wasn't aware  of an  articulated                                                               
statewide standard, so there was  the potential for photo lineups                                                               
to be administered in different ways.                                                                                           
                                                                                                                                
CHAIR  FRENCH asked  if APD  had  written procedures  for how  to                                                               
conduct field sobriety tests.                                                                                                   
                                                                                                                                
DEPUTY CHIEF SMITH said yes.                                                                                                    
                                                                                                                                
CHAIR FRENCH  asked if  an officer sometimes  forgets one  of the                                                               
steps in conducting a field sobriety test.                                                                                      
                                                                                                                                
DEPUTY CHIEF SMITH agreed that did happen.                                                                                      
                                                                                                                                
CHAIR FRENCH asked if the test  is admitted and cross examined at                                                               
trial.                                                                                                                          
                                                                                                                                
DEPUTY CHIEF SMITH  said yes and it would probably  work the same                                                               
way for photo lineups.                                                                                                          
                                                                                                                                
CHAIR FRENCH said that was his belief, but he'd check with DOL.                                                                 
                                                                                                                                
2:06:46 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  if  field sobriety  tests  were  in                                                               
statute or policies enacted by the police department.                                                                           
                                                                                                                                
DEPUTY  CHIEF  SMITH  replied  he didn't  believe  they  were  in                                                               
statute, but  the National Highway Traffic  Safety Administration                                                               
(NHTSA) promulgated the standardized  field sobriety test (SFST),                                                               
and that federal model had been adopted by most states.                                                                         
                                                                                                                                
CHAIR FRENCH reiterated  his intention to find  out if procedures                                                               
that were  set in  statute and  not followed  would automatically                                                               
lead to exclusion of  the evidence, or if it would  be an area of                                                               
cross examination.                                                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI asked if the  procedures laid out in Section                                                               
1 appeared to be reasonable.                                                                                                    
                                                                                                                                
DEPUTY CHIEF SMITH  replied APD already asks  different facets of                                                               
the information that's listed so it was reasonable.                                                                             
                                                                                                                                
2:09:22 PM                                                                                                                    
QUINLAN STEINER, Director, Public  Defender Agency, Department of                                                               
Administration (DOA),  stated that  there was  a growing  body of                                                               
evidence  that  eyewitness  testimony  was  not  as  reliable  as                                                               
previously  thought.  There  are exonerations  and  also  studies                                                               
establishing the  ease with which misidentification  occurs. With                                                               
regard to  the concern  that the  requirements were  too specific                                                               
and might cause the identification  to get thrown out, he pointed                                                               
out that these types of  things were subject to cross examination                                                               
now. By following  these procedures, it would be  unlikely to get                                                               
a finding  that would cause  an identification to be  thrown out.                                                               
That is the point of establishing a standard, he said.                                                                          
                                                                                                                                
2:11:30 PM                                                                                                                    
CHAIR  FRENCH   asked  if   he  was   aware  of   any  eyewitness                                                               
identification cases in Alaska that were overturned.                                                                            
                                                                                                                                
MR.  STEINER said  not specifically,  but he  was aware  of cases                                                               
where eyewitness  identification was called into  question and of                                                               
cases   of  false   confession.   Anything   that  moves   toward                                                               
eliminating  mistakes,  improves  the outcomes  of  the  criminal                                                               
justice system, he stated.                                                                                                      
                                                                                                                                
2:12:25 PM                                                                                                                    
BILL  OBERLY,  Executive   Director,  Alaska  Innocence  Project,                                                               
stated that eyewitness reform was  very important to the project,                                                               
primarily   because  these   identifications  were   the  leading                                                               
contributor  to   wrongful  convictions.   He  agreed   with  the                                                               
sponsor's statistics  on DNA exonerations  and added  that social                                                               
science research had  demonstrated that the human  mind is unlike                                                               
a tape  recorder. As  with any  crime scene  evidence, eyewitness                                                               
memory  is subject  to  contamination and  can  lead to  wrongful                                                               
conviction. Although the court of  appeals in 2009 recognized the                                                               
need  to institute  best practices  in identification  procedures                                                               
when it  ruled on  the Tegoseak  case, an  informal review  - and                                                               
later a freedom  of information request - indicated  that in 2011                                                               
most law enforcement  agencies in the state had  no procedures at                                                               
all for eyewitness identification.                                                                                              
                                                                                                                                
Extensive  social research  established six  procedures that  are                                                               
being instituted nationwide to  make eyewitness identification an                                                               
effective  tool   for  law  enforcement:   1)  a   proper  lineup                                                               
composition;  2) instructions  to  the witness;  3) double  blind                                                               
administration  of  the  test;  4)  sequential  presentation;  5)                                                               
confidence statements; and 6) recording the procedure.                                                                          
                                                                                                                                
MR. OBERLY  highlighted a potential error  on page 2, line  5. It                                                               
indicates  that simultaneous  presentation  is  the most  neutral                                                               
administration  of  a  lineup, when  it  is  actually  sequential                                                               
presentation that is the most effective presentation.                                                                           
                                                                                                                                
He said the  Alaska Innocence Project views SB 200  as a starting                                                               
point  for  bringing  law  enforcement  practices  in  line  with                                                               
current research  on eyewitness identifications. It  will help in                                                               
prosecutions  of  those  who  commit  crimes  and  prevention  of                                                               
wrongful convictions.  Anticipating a question, he  mentioned the                                                               
DNA testing  law that  was enacted two  years ago,  and estimated                                                               
that in another year or so  it would provide examples of wrongful                                                               
eyewitness identifications.                                                                                                     
                                                                                                                                
2:18:40 PM                                                                                                                    
SENATOR COGHILL  asked how  eyewitness identifications  were most                                                               
typically prejudiced right now.                                                                                                 
                                                                                                                                
MR. OBERLY  said the  research shows  that when  the investigator                                                               
knows  the   identity  of  the   suspect,  that   information  is                                                               
intentionally  or unintentionally  signaled  to  the witness.  He                                                               
stressed the  importance of eliminating  the possibility  of that                                                               
type of situation.                                                                                                              
                                                                                                                                
SENATOR COGHILL asked if anything in  the bill would make it less                                                               
intimidating to a victim.                                                                                                       
                                                                                                                                
MR. OBERLY said  the victim of a crime will  probably always find                                                               
the  eyewitness   identification  intimidating.  He   added  that                                                               
because  the procedure  runs in  the  background, the  eyewitness                                                               
probably wouldn't know if the  lineup was suggestive or had these                                                               
improvements.                                                                                                                   
                                                                                                                                
2:22:06 PM                                                                                                                    
JOE AUSTIN,  member of the  board of directors,  Alaska Innocence                                                               
Project, Anchorage,  AK, said  he was  a retired  law enforcement                                                               
officer  and had  done  lots  of lineups  during  his career.  He                                                               
stated support  the bill, but  suggested that the  minimum number                                                               
of filler photographs should be  five. The normal practice in his                                                               
experience was  to present  six photographs that  may or  may not                                                               
include the suspect.                                                                                                            
                                                                                                                                
CHAIR  FRENCH  observed  that  it  was  consistent  with  current                                                               
practice and wouldn't be a burden.                                                                                              
                                                                                                                                
2:23:26 PM                                                                                                                    
BARB  BRINK,   president  of  the  board   of  directors,  Alaska                                                               
Innocence Project, said  she was a public defender  for the state                                                               
for 23  years and  was currently working  for the  federal public                                                               
defender.  She  stated support  for  everything  that Mr.  Oberly                                                               
said.  She  offered  statistics  to  confirm  the  prevalence  of                                                               
eyewitness misidentifications and to  emphasize why these reforms                                                               
are so critical.                                                                                                                
                                                                                                                                
She elaborated on  the importance of the six  procedures that Mr.                                                               
Oberly mentioned  earlier that  make eyewitness  identification a                                                               
more  effective  tool  for law  enforcement.  These  were  proper                                                               
lineup  composition, instructions  to the  witness, double  blind                                                               
administration  of   the  test,  sequential   (not  simultaneous)                                                               
presentation,   confidence   statements,    and   recording   the                                                               
procedure.                                                                                                                      
                                                                                                                                
2:32:14 PM                                                                                                                    
SENATOR  WIELECHOWSKI   asked  if   location  was  an   issue  in                                                               
eyewitness  identifications. He  cited an  example of  an assault                                                               
case in  a small  Alaskan town  and eyewitness  identification in                                                               
the field that illustrated a weighted identification.                                                                           
                                                                                                                                
MS.  BRINK  confirmed  the  example  was  highly  suggestible  as                                                               
opposed to the bill that suggests  the procedure takes place in a                                                               
quiet location  outside the trauma  of the moment. The  latter is                                                               
obviously a superior method, she said.                                                                                          
                                                                                                                                
CHAIR FRENCH  reviewed some  of the  supporting documents  in the                                                               
packet.   One  was   a  training   key  from   the  International                                                               
Association  of Chiefs  of Police  that quoted  from the  Supreme                                                               
Court  case United  States  v.  Wade. It  said  the influence  of                                                             
improper  suggestion on  witnesses  was  perhaps responsible  for                                                               
more errors  than all  other factors  combined. Another  was from                                                               
the  Ramsey County  district attorney's  office that  pointed out                                                               
that nobody  in law  enforcement has  any interest  in convicting                                                               
the innocent.                                                                                                                   
                                                                                                                                
ANNE  CARPENETI,  Assistant  Attorney  General  representing  the                                                               
Criminal Division, Department of Law (DOL), introduced herself.                                                                 
                                                                                                                                
2:36:00 PM                                                                                                                    
SENATOR WIELECHOWSKI asked if DOL  thought that failure to follow                                                               
the procedures  would cause the  identification to be  thrown out                                                               
or if it  would go to the  weight of the evidence.  He also asked                                                               
if the administration had a position on the bill.                                                                               
                                                                                                                                
MS.  CARPENETI opined  that  it would  go to  the  weight of  the                                                               
evidence,  and  said  she  was pleased  that  the  committee  was                                                               
specifically discussing the point. She  then suggested on page 2,                                                               
lines 2-3, clarifying that the  mandatory language was either or.                                                               
Either a  blinded administrator would  conduct the lineup  or the                                                               
administrator would use a neutral procedure.                                                                                    
                                                                                                                                
CHAIR FRENCH agreed  with the suggestion, and added  that he also                                                               
intended to look  into whether it was better  to use "sequential"                                                               
rather than "simultaneous" on page 2, line 5.                                                                                   
                                                                                                                                
SENATOR  PASKVAN  commented that  it  would  seem to  be  fertile                                                               
ground for defense  counsel if a police department  didn't have a                                                               
standard procedure for administering eyewitness identifications.                                                                
                                                                                                                                
MS. CARPENETI agreed it would  be brought into question and added                                                               
that these things were also the subject of pretrial motions.                                                                    
                                                                                                                                
SENATOR  PASKVAN commented  on the  likelihood of  an ineffective                                                               
assistance of counsel  claim if the defense  didn't inquire about                                                               
the fact that their client  was misidentified when the department                                                               
didn't have a standard procedure.                                                                                               
                                                                                                                                
MS.  CARPENETI said  the eyewitness  testimony would  probably be                                                               
challenged if the defense was that it was a misidentification.                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI expressed a desire  for more certainty as to                                                               
whether it  would go  to the  weight of the  evidence or  get the                                                               
identification  thrown out  if an  officer forgot  to record  the                                                               
weather, for example.  He questioned how a  court would interpret                                                               
it.                                                                                                                             
                                                                                                                                
CHAIR FRENCH  said he would  have legislative legal draft  a memo                                                               
on that point.                                                                                                                  
                                                                                                                                
MS. CARPENETI  suggested that it  could also be addressed  in the                                                               
bill.                                                                                                                           
                                                                                                                                
CHAIR FRENCH said he'd inquire as to the best approach.                                                                         
                                                                                                                                
2:40:48 PM                                                                                                                    
WALLY TETLOW,  President, Alaska Association of  Criminal Defense                                                               
Lawyers, stated strong  support for SB 200. The  clear purpose of                                                               
the bill is  to strengthen identification procedures  used by law                                                               
enforcement  agencies, thereby  minimizing wrongful  convictions.                                                               
He  highlighted  that the  statistics  show  that 75  percent  of                                                               
convictions that  are reversed after  DNA work is done,  were the                                                               
result    of    misidentifications.   Improving    identification                                                               
procedures will not only minimize wrongful convictions, but also                                                                
strengthen convictions of the responsible parties.                                                                              
                                                                                                                                
2:42:48 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 200 in committee.                                                                       
                                                                                                                                

Document Name Date/Time Subjects
SB 165 Version E.pdf SJUD 2/27/2012 1:30:00 PM
SB 165
SB 165 amendment E.1.pdf SJUD 2/27/2012 1:30:00 PM
SB 165
SB 200 Support Document Police Chief Magazine.pdf SJUD 2/27/2012 1:30:00 PM
SB 200
SB 200 Support Document Train the Trainer Bulletin.pdf SJUD 2/27/2012 1:30:00 PM
SB 200
SB 200 Support Document Training Key Assoc of Chiefs of Police.pdf SJUD 2/27/2012 1:30:00 PM
SB 200
SB 210 Sponsor Statement.pdf SJUD 2/27/2012 1:30:00 PM
SB 210
SB 200 Sponsor Statement.pdf SJUD 2/27/2012 1:30:00 PM
SB 200
SB 210 version M.pdf SJUD 2/27/2012 1:30:00 PM
SB 210
SB 210 Supporting Documents.PDF SJUD 2/27/2012 1:30:00 PM
SB 210