Legislature(1995 - 1996)

02/01/1995 01:35 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                     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                 
                                                                               
                                1                                              
                                                                               
                                                                               
            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                 
                                                                               
                                2                                              
                                                                               
                                                                               
  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                 
                                                                               
                                3                                              
                                                                               
                                                                               
  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                 
                                                                               
                                4                                              
                                                                               
                                                                               
  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                 
                                                                               
                                5                                              
                                                                               
                                                                               
  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.                 
                                                                               
                                6                                              
                                                                               
                                                                               
  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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