Legislature(1995 - 1996)
02/01/1995 01:35 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
FEBRUARY 1, 1995
1:35 P.M.
TAPE HFC 95 - 14, Side 2, #000 - end.
TAPE HFC 95 - 15, Side 1, #000 - #440.
CALL TO ORDER
Co-Chair Mark Hanley called the House Finance Committee
meeting to order at 1:35 P.M.
PRESENT
Co-Chair Hanley Representative Kohring
Co-Chair Foster Representative Martin
Representative Mulder Representative Navarre
Representative Brown Representative Parnell
Representative Grussendorf Representative Therriault
Representative Kelly
ALSO PRESENT
Gerald Luckhaupt, Legislative Counsel, Division of Legal
Service; Dean Guaneli, Chief, Assistant Attorney General,
Department of Law; Margo Knuth, Assistant Attorney General,
Criminal Division, Department of Law.
SUMMARY
HB 26 An Act revising Rule 15, Alaska Rules of Criminal
Procedure, relating to depositions, to adopt the
comparable federal rule.
CS HB 26 (JUD) was reported out of Committee with
a "do pass" recommendation and with a fiscal note
by the Alaska Court System dated 1/26/95 and zero
fiscal notes by the Department of Public Safety
dated 1/26/95 and the Department of Law dated
1/26/95.
HB 27 An Act directing the Department of Public Safety
to establish and maintain a deoxyribonucleic acid
(DNA) identification registration system and
requiring DNA registration by persons convicted of
a felony sex offense; and providing for an
effective date.
CS HB 27 (JUD) was reported out of Committee with
a "do pass" recommendation and with new fiscal
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notes by the House Finance Committee, the
Department of Public Safety, and a zero fiscal
note by the Department of Law dated 1/26/95 and a
fiscal impact note by the Department of Public
Safety dated 1/26/95.
HOUSE BILL 27
"An Act directing the Department of Public Safety to
establish and maintain a deoxyribonucleic acid (DNA)
identification registration system and requiring DNA
registration by persons convicted of a felony sex
offense; and providing for an effective date."
GERALD LUCKHAUPT, LEGISLATIVE COUNSEL, DIVISION OF LEGAL
SERVICE, explained the changes made to CS HB 27 (JUD) in the
legislation. He added, he had attempted to give legal
credibility to all the amendments although subsection (b)
would need to read slightly different with the adopted
changes.
With the addition of juveniles to those being tested would
require a change to the title. He continued, CS HB 27 (JUD)
has a tight title especially in regard to who may be tested.
The change to the title would require a language change to
Page 1, Line 3, following the language "a person", inserting
"and of juveniles 16 years of age or older who are
adjudicated a delinquent for an act that would be a felony
crime against a person if committed by an adult".
Mr. Luckhaupt noted suggestions for technical amendments to
the proposed legislation. He referenced Representative
Parnell's amendment addressing the testing of some
juveniles. Mr. Luckhaupt recommended that the Committee
change the current language "juvenile" to "minor". "Minor"
is the term predominately used in AS 47.10 and appears to be
used in connection with a delinquency finding.
Mr. Luckhaupt continued, in addition, Representative Brown's
amendment attempted to clean up the differences between
subsections (b) and (f) addressing the DNA identification
registration system in order to clarify that the system
would be confidential. Although, the amendment does not
mention the tests in the language being added to subsection
(f). He suggested that if the Committee believes "tests"
should be added, "tests done on the samples", could be
inserted on Line 9 of Amendment G.1. The following
"samples," and "tests," would be added to Line 6 of
Amendment G.2.
Mr. Luckhaupt pointed out that a new subsection (g) added by
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Amendment G.2 could be reworked to make it more
understandable. He recommended eliminating the language of
the amendment and replacing it with the following:
(g) The Department of Public Safety shall destroy the
blood sampled and any identification data of a
person if...
(l) the conviction or adjudication that subjected the
person to having a sample taken under this section
is reversed; and...
(2) the person
(A) may not be retried or readjudicated for the
crime; or;
(B) after retrial the person is acquitted of the
crime or after readjudication for the crime
the person is not found to be a delinquent.
Mr. Luckhaupt suggested that if the "systems" were
confidential for the DNA, the testing could provide a less
complicated legislation.
Representative Parnell agreed with Mr. Luckhaupt's
recommendation to substitute the term "minor" for "juvenile"
throughout the bill. He MOVED to adopt the conceptual
amendment to CS HB 27 (JUD). There being NO OBJECTION, it
was adopted.
Representative Parnell MOVED to adopt the language provided
by Mr. Luckhaupt regarding subsection (g) and (l), Sections
2(A & B). Representative Brown OBJECTED for the purposes of
discussion stating that the language did not make sense.
Mr. Luckhaupt advised that in Section (2A), the conviction
would be reversed, and following the retrial, the person
would be acquitted and the samples would be destroyed.
Representative Brown asked what would occur if the State
chose not to retry. Mr. Luckhaupt explained that would be
addressed in Section (2A), new language written by legal
counsel.
DEAN GUANELI, CHIEF, ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, offered language to address
Representative Brown's concern. In Section 2(A) delete the
word "may" and insert the word "is" and delete the word
"be"; Section 2(B), delete the phrase "the person" on Lines
1 and 2 or Section 2(B).
He pointed out that when reversing a case, the ordinary
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course would be to send it back to the lower courts and
repeat the trial. At that point, the State can decide if
they want the retrial or not. He pointed out that the
language change would deal with that circumstance and would
correct previous loopholes.
Representative Parnell WITHDREW THE MOTION to amend.
Representative Brown WITHDREW THE OBJECTION in order to
correct the language as provided by legal counsel.
Following discussion, the Committee brought forth questions
regarding the DNA identification registration system.
Representative Parnell and Representative Brown debated the
confidentiality of those records. Mr. Luckhaupt recommended
changing the language on Page 2, Line 25-27 of CS HB 27 (K)
version. The proposed new language would read: "The DNA
identification registration-system is confidential, is not a
public record under AS 09.25.110-09.25.140, and may be used
only for..."
He added an additional language change to Page 3, Lines 3 -
4, deleting the language "blood or oral samples and any
identification data" and inserting "material within the
system".
Representative Parnell MOVED to adopt the conceptual
amendment as recommended by Mr. Luckhaupt to Page 2, Lines
25-27. There being NO OBJECTION, it was adopted.
Mr. Luckhaupt noted that all the changes made thus far would
fit within the previous title change recommended.
Representative Parnell MOVED the amended title. There being
NO OBJECTION, it was adopted.
Representative Brown MOVED to adopt Amendment 9-LS0148\G.5.
[Attachment #1]. She stated the amendment would add a more
precise and clear definition of "oral sample" than used in
the previous language. There being NO OBJECTION, it was
adopted.
Representative Brown MOVED to adopt Amendment 9-LS0148\G.4.
[Attachment #2]. She stated that the amendment would
identify the direction of the Department of Public Safety
and the overall criminal justice system. There being NO
OBJECTION, it was adopted.
Representative Brown MOVED to adopt Amendment 9-LS0148\G.3.
[Attachment #3]. Representative Parnell OBJECTED for
purposes of discussion, pointing out his original concerns
with the amendment in dealing with future court cases. He
advised that if a person is accused of another crime, the
DNA data would already be available. Representative Parnell
said following consultation with Mr. Guaneli, he understood
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that the amendment would not impact the Rules of Discovery.
Representative Parnell WITHDREW THE OBJECTION to the
amendment. There being NO FURTHER OBJECTION, it was
adopted.
Co-Chair Hanley explained that the new fiscal note provided
by the House Finance Committee would increase the previous
one by $2 thousand dollars. He asked if there were
objections to the revised fiscal note.
Representative Brown emphasized that all the fiscal notes
failed to reflect the "real" costs of the program.
(Tape Change, HFC 95-15, Side 1).
Representative Brown recommended that the legislation be
held until the overall priorities of spending have been
established for public safety and the responsibility of that
Department. She emphasized that the fiscal notes are not a
true cost reflection of actual costs of the proposed
legislation.
Representative Parnell MOVED to report CS HB 27 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes. Representative Brown OBJECTED.
A roll call vote was taken on the MOTION.
IN FAVOR: Martin, Mulder, Parnell, Therriault,
Grussendorf, Kelly, Kohring, Hanley,
Foster.
OPPOSED: Brown.
Representative Navarre was not present for the vote.
The MOTION PASSED (9-1).
CS HB 27 (FIN) was reported out of Committee with a "do
pass" recommendation and with fiscal notes by the House
Finance Committee, the two by the Department of Public
Safety one of which was dated 1/26/95 and a zero fiscal note
by the Department of Law dated 1/26/95.
HOUSE BILL 26
"An Act revising Rule 15, Alaska Rules of Criminal
Procedure, relating to depositions, to adopt the
comparable federal rule."
Representative Parnell explained that HB 26 would change the
Alaska Rules of Criminal Procedure to permit depositions of
victims and adverse witnesses only in exceptional
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circumstances. Under the bill, the defense would retain
access to statements taken by police and grand jury
testimony of the victim and witnesses, as well as the
ability to face the accuser at the trail.
He added, in practice, Alaska's current Rule 15 enables
defense attorneys to take numerous depositions of victims
and witnesses, and would provide fertile ground for the
discovery of abuse. The mishandling of that privilege slows
the due process, unnecessarily burdens the courts, and
serves to harass victims rather than promoting the ends of
justice.
MARGO KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, commented on the "exceptional
circumstances" aspect of the proposed legislation. She
stated that the proposed legislation would particularly be
beneficial in some parts of the State. She added, the
importance of discovery tools allows neither side to be
surprised by the evidence of the other side. In civil
cases, depositions provide the needed information from the
other side. In criminal cases, specifically in Alaska, the
prosecution provides all of the information that it has
accumulated in an up front case to the defendant.
Representative Brown referenced Page 2, Lines 7-11, and
asked how the language would be changed by the proposed
"discovery rule", Court Rule #16. Ms. Knuth responded that
if the legislation was adopted as it is now and the federal
Rule #16 was adopted, under that federal rule, defendants
would not be given access to the grand jury material. She
clarified that there would not be cause for concern if the
federal Rule #16 was adopted. The State does not favor a
"discovery bill" that would deny access to grand jury
materials to defendants. In supporting CS HB 26 (JUD), the
Department of Law assumes that the bill on "discovery" would
allow defendants to obtain access to the grand jury material
in the case against them.
Representative Brown questioned the recorded statement from
the law enforcement agency. Ms. Knuth replied, if the
defendant does have access to the recorded statement, then
the defendant is not going to be surprised by what the
victim says at trial. If the defendant is surprised by what
the victim says, the defendant should have access to the
recorded material before a presumption is created, in which
case there should not be a deposition.
Representative Brown asked if the sponsor shared the
Department of Law's position. Representative Parnell
acknowledged that any evidence that negated the guilt of the
defendant would be "discoverable" regardless of the source.
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Ms. Knuth responded to a statement by Representative Brown
regarding "opting in" through the deposition. Although, a
court asking to allow a deposition of a victim or witness
would then technically have another opportunity but because
the victim could have participated in a reciprocal case,
could be given the choice not too. Representative Brown
pointed out the other pending legislation addressing the
"discovery rule", Rule 16 and requested holding CS HB 26
(JUD) for further discussion with that legislation.
Representative Parnell emphasized that the legislation
stands on own. Regardless of the status of the other
discovery legislation, CS HB 26 (JUD) addresses concerns not
listed in that legislation.
Representative Mulder MOVED to report CS HB 26 (JUD) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTIONS, it
was reported out of Committee.
CS HB 26 (JUD) was reported out of Committee with a "do
pass" recommendation and with fiscal notes by the Alaska
Court System dated 1/26/95, the Department of Public Safety
dated 1/26/95 and the Department of Law dated 1/26/95.
ADJOURNMENT
The meeting adjourned at 2:55 P.M.
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