Legislature(1995 - 1996)
01/25/1996 01:38 PM House FIN
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* first hearing in first committee of referral
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HOUSE FINANCE COMMITTEE
January 25, 1996
1:38 P.M.
TAPE HFC 96-20, Side 1, #000 - end.
TAPE HFC 96-20, Side 2, #000 - 455.
CALL TO ORDER
Co-Chair Mark Hanley called the House Finance Committee
meeting to order at 1:39 P.M.
PRESENT
Co-Chair Hanley
Co-Chair Foster Representative Martin
Representative Grussendorf Representative Navarre
Representative Kelly Representative Parnell
Representative Kohring Representative Therriault
Representatives Mulder and Brown were absent from the
meeting.
ALSO PRESENT
Representative Con Bunde; Lauree Hugonin, Alaska Network on
Domestic Violence and Sexual Assault; Jayne Andreen, Council
on Domestic Violence and Sexual Assault; John Salemi,
Director, Public Defender Agency, Department of
Administration; Dean Guaneli, Chief Assistant Attorney
General, Department of Law.
SUMMARY
HB 25 "An Act revising Rule 16, Alaska Rules of Criminal
Procedure, relating to discovery and inspection in
criminal proceedings, to adopt the comparable
federal rule."
CSHB 25 (FIN) was reported out of Committee with a
"do pass" recommendation and five zero fiscal
notes: two by the Department of Administration,
one by the Department of Public Safety, one by the
Department of Law, and one by the Alaska Court
System.
HOUSE BILL NO. 25
"An Act revising Rule 16, Alaska Rules of Criminal
Procedure, relating to discovery and inspection in
criminal proceedings, to adopt the comparable federal
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rule."
Representative Parnell gave a brief overview of the
legislation. He explained that discovery in legal
proceedings is the pretrial exchange of information between
parties. He observed that in a civil context attorneys have
to disclose any relevant information that is not privileged.
He stated that the legislation implements reciprocal
discovery in the state of Alaska.
Representative Parnell referred to the Alaska Supreme Court
decision, State versus Scott (1974). He observed that the
Court ruled that requiring an accused to disclose names and
addresses of witnesses and evidence relating to an alibi to
be used by the defense violated the defendant's right
against self incrimination. He asserted that the ruling
resulted in the waste of significant judicial resources. He
noted that reciprocal discovery law would prevent surprise
witnesses from being introduced in the middle of a trial.
Representative Parnell provided members with two spread
sheets prepared by the Department of Law demonstrating
differences between the current law and changes proposed in
HB 25 (Attachment 1). He reviewed Attachment 1. He noted
that the prosecution is required to immediately provide the
defense with lists of all known witnesses, written or
recorded statements, documents, photos and other evidence
likely to be used, rap sheets for witnesses likely to
testify for the State, information about line-ups or other
identification, evidence tending to negate guilt or reduce
the defendant's punishment, and information provided by an
informant or by electronic surveillance. Within 10 days of
the prosecution's initial release of information the defense
is required to provide similar information. He noted that
the legislation provides time-lines for the further exchange
of information prior to the trial.
Representative Parnell asserted that reciprocal discovery
promotes justice while preventing unnecessary costly delays
and trials. He maintained that the defendant's right
against self incrimination is still preserved. The
defendant does not have to provide information that they do
not intend to use at trial.
Representative Parnell provided members with a proposed
committee substitute, Work Draft #9-LS0146\N (copy on file.)
Representative Parnell MOVED to adopt Work Draft #9-
LS0146\N. There being NO OBJECTION, it was so ordered.
Representative Parnell noted that his office worked closely
with the Department of Law, the Office of Public Advocacy
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and the Public Defender Agency. He emphasized that with the
exception of a few minor points all parties are in
agreement.
DEAN GUANELI, CHIEF ASSISTANT ATTORNEY, DEPARTMENT OF LAW
spoke in support of HB 25. He asserted that the Court's
ruling has made the exchange of information a one way street
with the information flowing from the prosecution to the
defense. He maintained that the state of Alaska's discovery
laws are the most restrictive in the nation. He observed
that until six months ago the defense only had to provide
early notice if a psychiatric defense was going to be used.
Mr. Guaneli observed that the sponsor decided not to model
the legislation on federal rules of evidence. He maintained
that under federal rules of evidence information is hid from
the defense until the middle of the prosecution's case. He
observed that the House Judiciary Committee discussed having
both sides exchange information at the beginning of a case.
He commented that the Public Defender Agency pointed out
that immediate exchange by both parties would place a burden
of immediate investigation on the Agency. The Public
Defender Agency indicated that it would be difficult to
investigate a case until information is received from the
prosecution.
Mr. Guaneli summarized that the current legislation
identifies categories of information that the prosecution
and defense must disclose and the timing of the disclosures.
He observed that the legislation closely follows the
American Bar Association's rule on discovery. The rules
regarding discovery for the prosecution are not changed.
The timing regarding the prosection's disclosure would be
changed. He reviewed Attachment 1. He noted that defense
witnesses appearing at trial are largely a surprise to the
prosection. This results in requests for postponements by
the prosection to allow investigation. The legislation
requires the defense to provide a list of their witnesses.
The legislation does not require that the defense provide
the prosection with the names of individuals they have
interviewed if they are not going to testify. He emphasized
that evidence to be used by the defense regarding the
character of a victim or witness should be provided to the
prosecution. He concluded that the legislation requires the
exchange of information that is necessary for fair and
speedy adjudication.
Mr. Guaneli noted that the legislation creates a new
procedure to allow defendants to obtain confidential
information that is not in the possession of the
prosecution. It also sets standards for courts to follow in
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granting such requests. He observed that victims' records
from counseling centers and police personnel records would
be affected. He maintained that the legislation creates a
uniformed standard that judges can apply when deciding
whether to turn over information that the prosection does
not have or know about. He maintained that police
departments are in favor of the provision. He acknowledged
that some victim's groups may not be satisfied with the
provision. He asserted that the legislation strikes a fair
balance.
Mr. Guaneli reiterated that the legislation is inconsistent
with the Alaska Supreme Court's opinion in State versus
Scott (1974). He acknowledged that the legislation would be
challenged. He contended that the Supreme Court would
reverse itself. He stressed that Scott is the only decision
of its type in any court in the United States. He noted
that a constitutional amendment was passed to reverse a
similar decision in the state of California.
Representative Navarre questioned if the legislation would
increase the number of convictions by the prosecution. Mr.
Guaneli stated that the legislation might increase
convictions. He noted that disclosure by the defense would
allow better investigation and lessen the need for
postponements. He acknowledged that the tactical advantage
of surprise would be removed from the defense. He
summarized that justice would be better served by passage of
the legislation.
In response to a question by Representative Navarre, Mr.
Guaneli noted that he had worked for five months as an
intern with the Public Defender Agency. He compared the
caseloads of the Public Defender Agency and the prosecution.
He maintained that their caseload ratios are similar. He
questioned if a direct comparison can be made between police
and defense investigative resources, but acknowledged that
police resources are greater. He emphasized that police
functions encompass more than investigative activities. He
observed that the function of a defense attorney is to prove
their client's innocence.
Representative Navarre asked for further information
regarding the grand jury process. Mr. Guaneli explained
that the grand jury record is available to the defense if an
indictment occurs. He emphasized that the grand jury only
determines if there is enough evidence available to pursue a
trial. He stressed that the grand jury provides a check on
the prosecutor's authority. Prosecutors must convince a
panel of ordinary citizens that there is a case. He noted
that an accused may not have an attorney prior to the
indictment. He emphasized that a grand jury proceeding is
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not intended to be a mini trial. He stressed that it is a
required tool of the prosecution.
Representative Therriault asserted that a prosecutor does
not prosecute if he knows that a person is innocent. He
stressed that a public defender defends even if he knows the
defendant is guilty.
In response to a question by Representative Grussendorf,
Representative Parnell explained that discussion occured
between the Public Defender Agency and the Department of Law
regarding the release of confidential records. Mr. Guaneli
added that the Public Defender Agency expressed concern that
the defense would be required to summarize statements of
witnesses. An agreement was reached regarding disclosure of
witness records. Both will be required to provide lists of
witnesses likely to be used at trial and written or recorded
statements when available. In addition, he pointed out that
the prosecution must turn over information regarding every
witness contacted.
Co-Chair Foster questioned if the legislation places an
additional financial burden on the Public Defender Agency.
Representative Martin referred to a $370.7 thousand dollar
fiscal impact note approved by the House Judiciary Committee
for the Department of Administration. Representative
Parnell explained that the fiscal note pertained to a
previous version that contained an opt in/out provision.
LAUREE HUGONIN, EXECUTIVE DIRECTOR, ALASKA NETWORK ON
DOMESTIC VIOLENCE AND SEXUAL ASSAULT testified in support of
reciprocal discovery. She asserted that the search for
truth would be aided by the legislation. She noted that the
committee substitute addresses their concern regarding the
victim's right to confidentiality. She pointed out that
only two states require an in-camera hearing upon defense
submission of a pretrial discovery motion. House Bill 25
would add Alaska to the list. She expressed the hope that
safeguards will be in place to assure that victim's rights
are protected during in-camera viewings, so that "victims
will continue to come forward to seek help in ending the
violence being perpetrated against them."
JAYNE ANDREEN, EXECUTIVE DIRECTOR, COUNCIL ON DOMESTIC
VIOLENCE AND SEXUAL ASSAULT testified in support of HB 25.
She expressed concern that the rights of an accused be
balanced with the rights of the victim. She gave a
hypothetical account demonstrating the impact the
legislation might have on a victim of sexual assault. She
noted that 80 percent of sexual assault cases involve an
acquaintance, friend or family member. She emphasized that
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a victim has no prior knowledge of what they will face
during a trial. She observed that notification that a
victim's character is going to be brought into question
allows the victim to be emotionally prepared. She
maintained that the legislation balances victim's rights
with those of the accused.
(Tape Change, HFC 96-20, Side 2)
Representative Grussendorf expressed concern that the
workload not be shifted to burden the Public Defender
Agency. He maintained that an increase in workload should
be accompanied by an increase in funding.
Representative Parnell disagreed that the legislation would
require more funding. He asserted that the legislation
shifts the timetable for disclosure without creating
additional work. He reiterated that the fiscal note dated
2/3/95 for the Department of Administration referred to an
earlier version which contained the opt in/out provision.
JOHN SALEMI, DIRECTOR, PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION agreed that the 2/3/95 fiscal note belong to
an earlier version of HB 25. He noted that the updated
accompanying fiscal note is zero.
In response to a question by Representative Navarre, Mr.
Salemi explained that the legislation changes the degree to
which information is exchanged between parties in a criminal
case. He summarized that under current law the prosecution
turns over all relevant information to the defense. He
reiterated that the legislation would establish new
obligations for the defense to turn over to the prosecution
information which may be relevant to a defense it will
utilize at a jury trial. He briefly summarized the State
versus Scott decision. He emphasized that the element of
surprise would be eliminated. He pointed out that 90
percent of cases result in disposition without trial.
In response to a question by Representative Navarre, Mr.
Salemi observed that a comparison between state resources
and those available to the Public Defender Agency is
difficult. He pointed out that the State has different
obligations than the Public Defender Agency.
Representative Grussendorf observed that prosecuting
attorneys have extensive resources. In response to a
question by Representative Grussendorf, Mr. Guaneli stated
that he does not anticipate that the legislation would
constitutionally disadvantage defendants. He emphasized
that it is impossible to ascertain all the ramifications of
the legislation.
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Representative Grussendorf asked if the legislation will
create more work for defense attorneys. Mr. Salemi stated
that the legislation will increase clerical work. He noted
the lack of clerical support in the Public Defender Agency.
He emphasized the difficulty in assessing the quantity of
new work the legislation will require.
Representative Grussendorf questioned if the Public Defender
Agency has adequate funding to function. Mr. Salemi
answered that "the Public Defender Agency has insufficient
present resources to carry out its constitutional mandate in
some situations." He observed the difficulty of quantifying
the impact of new legislation. He pointed out that the sum
of legislation passed in the past few years would add up to
a significant fiscal note. He noted that the Agency is
projecting a $217.0 thousand dollar shortfall for FY 96.
Representative Navarre expressed support for the
legislation. He emphasized that the Public Defender Agency
needs more money. He added that the Prosecutor's Office,
Alaska State Troopers and Department of Corrections also
need more money. He maintained that passing additional
bills to "get tougher on crime" does less than putting the
resources into enforcement agencies, prosecutors offices and
the Public Defender Agency.
In response to a question by Representative Parnell, Mr.
Salemi stated that the accompanying zero fiscal note
accurately reflects his best estimate of the impact of the
legislation.
Representative Kohring spoke in support of the legislation.
He MOVED to report CSHB 25 (FIN) out of Committee with
individual recommendations and with the accompanying fiscal
notes. There being NO OBJECTION, it was so ordered.
CSHB 25 (FIN) was reported out of Committee with a "do pass"
recommendation and five zero fiscal notes: two by the
Department of Administration, one by the Department of
Public Safety, one by the Department of Law, and one by the
Alaska Court System.
ADJOURNMENT
The meeting adjourned at 2:53 p.m.
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